Smith v. State

Decision Date30 June 1983
Docket NumberNo. 2-183-A-1,2-183-A-1
Citation451 N.E.2d 57
PartiesRonald A. SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Ralph Ogden, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.


Defendant-appellant Ronald A. Smith (Smith) appeals from a court conviction of operating a motor vehicle while intoxicated, a class D felony, 1 asserting that he was denied his constitutional right to trial by jury, that the court's finding of class D felony guilt was based upon insufficient evidence of his alleged prior conviction, and that, upon remand, the trial should be bifurcated as to the foundation charge and the alleged prior conviction.

We reverse.


The facts pertinent to this appeal are as follows: On December 21, 1981, an information was filed charging Smith with driving while intoxicated. Because the State alleged that Smith had a prior conviction under Ind.Code 9-4-1-54, the information charged Smith with a class D felony pursuant to the statute's mandate that a foundation charge is enhanced from a class A misdemeanor to a class D felony if the defendant has a previous conviction occurring after June 30, 1978.

On March 29, 1982, a pre-trial conference was held, and with Smith present in court, his counsel waived jury trial. The entire entry concerning that waiver is as follows:

"JUDGE: Alright how much time are you going to need for trial?

MR. CLARK: Whatever is convenient to the Court, a court trial.

JUDGE: He waives Jury, does he?

MR. CLARK: Yes sir.

JUDGE: Alright the defendant waives the request for a Jury."

Supp. Record at 1. There is nothing in the record disclosing whether Smith assented to the waiver, whether he understood its implications, or whether he even heard the conversation between the judge and trial counsel. However, a court trial was scheduled, and no further mention of the right to jury trial can be found in the record prior to the filing of Smith's motion to correct error.

At trial, the State produced testimony of one Patrick Tompkins (Tompkins) who identified his signature on an operating affidavit filed against Smith on March 13, 1981. Tompkins identified Smith as the accused alleged by the affidavit to have been driving while intoxicated. Subsequently, the State entered into evidence a certified copy of the affidavit which indicated the court's finding on the reverse side. That finding, signed by the judge on September 23, 1981, shows that Smith was found guilty as charged, fined, and placed on probation. Record at 72.

After proof on the instant charge, the trial court found Smith guilty of the class D felony, and the appellate process began. In addition to raising questions concerning the sufficiency of the evidence, Smith's motion to correct error asserted that he had been denied the right to trial by jury. Properly filed with the motion, pursuant to Ind. Rules of Procedure, Trial Rule 59(H) and Ind. Rules of Procedure, Criminal Rule 17, was Smith's verified affidavit asserting that he was unaware of his right to jury trial prior to conviction. 2 The State did not file a response, and the motion to correct error was denied.


Three issues are presented for our review:

1. Was Smith denied his constitutional right to trial by jury?

2. Was the court's finding that Smith was guilty of a class D felony, rather than a class A misdemeanor, based upon sufficient evidence of the alleged prior conviction of driving while intoxicated?

3. Should, on remand, the trial court follow the procedures set forth in Sweet v. State, (1982) Ind., 439 N.E.2d 1144, for bifurcated proceedings? 3


ISSUE ONE--Was Smith denied his constitutional right to trial by jury?

CONCLUSION--Smith's right to a jury trial was not waived in a voluntary, knowing, and intelligent manner; therefore, a new trial is required.

Our point of departure is the case of Good v. State, (1977) 267 Ind. 29, 366 N.E.2d 1169, wherein our supreme court fashioned the procedure for waiver of jury trial. Writing for the court, Justice Pivarnik held that a valid waiver must be shown by "an assent by the defendant personally, reflected in the record before the trial begins either in writing or in open court." Id. at 1171 (emphasis supplied). It is Smith's position that his pre-trial waiver does not comport with the Good requirement because, although he was present in court, it was his counsel who asserted the waiver. However, we need not decide whether such a waiver by counsel in defendant's presence could satisfy the Good requirement of personal assent (cf. Cunningham v. State, (1982) Ind.App., 433 N.E.2d 405) because, despite the on-the-record waiver, uncontradicted evidence discloses that Smith's right to jury trial was not knowingly, voluntarily, or intelligently relinquished.

It is axiomatic that waiver of constitutionally protected rights may be accomplished only if performed in a voluntary, knowing, and intelligent manner. See Brady v. United States, (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. This principle applies no less to waiver of the right to trial by jury. Wadlington v. State, (1975) 164 Ind.App. 255, 328 N.E.2d 458; Stevenson v. State, (1975) 163 Ind.App. 399, 324 N.E.2d 509; Williams v. State, (1974) 159 Ind.App. 470, 307 N.E.2d 880, trans. denied.

The right to jury trial in criminal cases is one of the sacred cows long nurtured in the pasturelands of our legal system. G.K. Chesterton, in a few words, traces the wisdom of using a jury when an "awful matter" must be considered:

"Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity." 4

The affidavit filed with Smith's motion to correct error demonstrates that his waiver of jury trial fell far short of a full understanding of what he was waiving. That uncontradicted affidavit states, unequivocally, that Smith did not know he had a right to trial by jury until several days after his conviction and that it was not until he had retained appellate counsel that he learned a jury trial was available to him in his kind of case. Record at 25. Such evidence was properly before the trial court. As our supreme court explained in Harris v. State, (1981) Ind., 427 N.E.2d 658, 662,

"Indiana T.R. 59 and Indiana R.C.P. 17 both permit the filing of affidavits with the Motion to Correct Errors whenever errors are to be based on matters otherwise outside the record. A properly verified affidavit thus becomes part of the record under these rules. If the affidavit is uncontradicted, the appellate court must accept its contents as true."

(Emphasis supplied) (citations omitted). And the court of appeals, in cases similar to this one, has allowed withdrawal of a jury trial waiver when affidavits filed with the motion to correct error demonstrated that the waiver was a result of unsuccessful plea negotiations, Williams, supra, or was obtained prior to consultation with counsel. Stevenson, supra.

We are faced with undisputed evidence that Smith did not knowingly or intentionally relinquish his right to trial by jury. Our search of the record reveals no evidence that Smith was advised of and understood his right to a jury trial. We recognize there is no constitutional requirement that the trial court explain a defendant's jury trial rights to him; 5 however, had the record demonstrated that such an effort was made, Smith's affidavit would not be uncontradicted, and our result may well have been different. But when, as in this case, the defendant's assertion of uninformed waiver is uncontradicted by either the record of proceedings or any affidavits filed in response to the defendant's affidavit, we can only conclude that the waiver was not knowingly, voluntarily, or intentionally given. And our holding is so limited.

As in the Stevenson and Williams cases cited above, Smith's affidavit was properly before the trial court when it ruled on the motion to correct error. This is not a case in which a defendant has simply attempted to offer by affidavit evidence that he neglected to present at the prior proceeding. See Collins v. Dunifon, (1975) 163 Ind.App. 201, 323 N.E.2d 264. Smith could hardly be expected to assert his right in the absence of knowledge that a jury trial was available to him. Thus, the trial court abused its discretion in denying Smith's motion to correct error, and a new trial must be held.

ISSUE TWO--Was the court's finding that Smith was guilty of a class D felony, rather than a class A misdemeanor, based upon sufficient evidence of the alleged prior conviction of driving while intoxicated?

CONCLUSION--The evidence presented at trial was sufficient to support the trial court's decision.

Smith's argument that the State was required to introduce an order book entry to prove his prior conviction was explicitly rejected by our supreme court in the analogous setting of a habitual criminal proceeding. See Collins v. State, (1981) Ind., 415 N.E.2d 46, cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851. And, although Smith is correct in his contention that Tompkins's testimony is not sufficient in and of itself to prove the prior conviction, see Morgan v. State, (1982) Ind., 440 N.E.2d 1087, we are convinced that...

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