SMITH v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Steven Lamont Smith, Jr. appeals his conviction for Level 6 felony residential entry. He raises one issue for our review: did the trial court commit fundamental error in trying him without a jury? We reverse and remand.

Facts and Procedural History

[2] On February 11, 2024, Smith broke a window, chain lock, and door frame at his ex-girlfriend's residence and entered the home. Smith was subsequently arrested and charged with residential entry. A jury trial was scheduled for June 13, 2024.

[3] Smith filed a Waiver of Trial by Jury on May 30, 2024. The document included several recitals about Smith's rights to a jury trial and his understanding of those rights, and declared Smith made the waiver “freely, knowingly, understandingly, and voluntarily.” Appellant's App. Vol. 2 at 89. The document included the following request for relief and signature block:

Id.

[4] At a June 3 pretrial conference attended only by the attorneys, the judge acknowledged the waiver, stating, “And you have his signature on his behalf on the waiver. All right. So we're looking for a bench trial.” Tr. Vol. 2 at 25. The final pretrial conference and jury trial were vacated, and a bench trial was set for July 22. The judge said, “We'll just address the waiver with [Smith] at that time,” and the Chronological Case Summary entry for the pretrial conference reads, “Waiver of jury trial to be addressed on July 22, 2024.” Id. at 26; Appellant's App. Vol. 2 at 9.

[5] Smith appeared for trial on July 22, 2024. The trial court did not address the jury trial waiver before proceeding with a bench trial and Smith did not object to being tried without a jury. The trial court found Smith guilty and sentenced him to two years with 545 days suspended to probation.

The trial court committed fundamental error by conducting a bench trial when Smith did not personally communicate his waiver of the right to a jury trial.

[6] Smith contends the trial court erred by accepting the waiver, vacating his jury trial, and proceeding with a bench trial because he did not personally communicate to the court his waiver of the right to trial by jury. Smith does not expressly acknowledge that he did not object to the trial court's acceptance of the waiver, but he does argue the trial court committed fundamental error.

[7] A party's failure to object to an alleged trial error results in waiver of that claim on appeal. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). But a party can raise an otherwise waived issue through a showing of fundamental error. See Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The “fundamental error” exception to waiver is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. This “formidable standard ․ applies only where the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel.” Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021). The appellant “faces the heavy burden of showing that the alleged errors are so prejudicial to [their] rights as to ‘make a fair trial impossible.’ ” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

[8] “The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article 1, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). It is an essential element of a defendant's right to due process. Lewis v. State, 929 N.E.2d 261, 265 (Ind. Ct. App. 2010). “[A] violation of the right to trial by jury is a fundamental error, and cannot be considered harmless.” Duncan v. State, 975 N.E.2d 838, 844 (Ind. Ct. App. 2012).

[9] “A defendant charged with a felony is entitled to a trial by jury unless that right is waived personally, knowingly, voluntarily, and intelligently.” Ind. Crim. Rule 3.1(A); see also Ind. Code 35-37-1-2 (“The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal Procedure, all other trials must be by jury.”). In other words, the trial court must assume a defendant charged with a felony will want a trial by jury “unless the defendant personally indicates a contrary desire in writing or verbally in open court.” Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006) (emphasis added). This is a “defendant-centric procedure” that “confers the authority to waive [a jury trial] on the defendant—not the defense attorney.” Horton, 51 N.E.3d at 1158 (holding the trial court committed fundamental error by proceeding to a bench trial where the record showed waiver only by defendant's attorney and not by defendant personally).

[10] Smith contends the written waiver in this case does not show his personal waiver of the right to a jury trial because it “is entirely clear from the wording” that his counsel signed on his behalf. Appellant's Br. at 11. And because the trial court did not address the waiver with him in open court, Smith argues he was denied his constitutional right to be tried by a jury. The State counters Smith's “electronic signature by his counsel” on the waiver “was both permissible and proper under the Indiana Trial Rules concerning electronic signatures” and operated as a valid waiver of his right to trial by jury. Appellee's Br. at 6. The State asserts this constitutes “a written assent personally made by Smith and reflected in the record before the trial began.” Id. at 10.

[11] An electronic signature has the same force and effect as a written signature. See Green v. State, 945 N.E.2d 205, 208 (Ind. Ct. App. 2011) (citing I.C. § 26-2-8-106); see also Ind. Trial Rule 87(G) (stating electronically filed documents that require a signature must include either a “graphic image of a handwritten signature” or “the indicator ‘/s/’ followed by the person's name”). In a recent memorandum decision, a panel of this Court rejected a defendant's claim that a written waiver containing only his electronic signature was insufficient to waive his right to a jury trial. Munoz v. State, No. 24A-CR-796, at *3 (Ind. Ct. App. Nov. 20, 2024) (mem.), trans. denied.¹ But Smith does not contend the waiver is ineffective because it was electronically signed. Instead, he argues it does not meet the requirements for waiver because the wording used on the document (“/s/ Sasha Blevins for Steven Smith”) shows counsel signed the document on Smith's behalf, “with no indication in the record that [ ] Smith was aware that [counsel] had done that, or that [ ] Smith had somehow assented to him doing so.” Appellant's Br. at 11. We agree with Smith.

[12] A personal, knowing, voluntary, and intelligent waiver of the right to a jury trial must be reflected in the record before trial begins either in writing or in open court. Kellems, 849 N.E.2d at 1113. The record reflection “must be direct and not merely implied [and] must show the personal communication of the defendant to the court that he chooses to relinquish the right.” Id. (quoting Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984)). Here, contrary to the State's assertion, the record does not reflect that Smith personally signed the written waiver, nor does it show he engaged in a colloquy about waiver with the trial judge before trial. The waiver plainly states it was signed by counsel “for Smith” rather than by Smith himself, and Indiana courts have repeatedly held that a lawyer may not waive a jury trial on a client's behalf. See Horton, 51 N.E.3d at 1159–60; Shady v. State, 524 N.E.2d 44, 45 (Ind. Ct. App. 1988) (holding trial court erred in denying defendant a trial by jury where defendant did not personally appear at a hearing where his attorney waived trial by jury). Smith was not present at the pretrial conference where the waiver was discussed, and the issue was never raised again. The judge voiced intent to revisit the waiver at the next court date but then never questioned Smith about the waiver on the record.

[13] Further, the fact that Smith did not object when the trial court conducted a bench trial does not change the outcome. In Kellems, the defendant's attorney stated at a status conference the defendant desired to waive his jury trial right. The defendant was in attendance, yet the trial court did not question the defendant himself. Our Supreme Court rejected the State's argument that “standing by in silence” constituted a knowing, voluntary, and intelligent waiver of the right to jury trial because of the well-established rule that a personal waiver is required. Kellems, 849 N.E.2d at 1112–13; see also Horton, 51 N.E.3d at 1159-60 (rebuffing State's request to carve out an exception to the personal waiver requirement where circumstances imply waiver was defendant's choice and holding trial court's failure to confirm defendant's personal waiver when defendant's attorney waived jury for phase 2 of bifurcated trial immediately after jury returned guilty verdict in phase 1 was fundamental error).

[14] The trial court's failure to confirm Smith's personal waiver before proceeding to a bench trial constituted fundamental error. Smith is entitled to a new trial.

Conclusion

[15] We reverse Smith's conviction and remand for a new trial.

[16] Reversed and remanded.

FOOTNOTES

1.   The facts in Munoz reflect the defendant “filed a written waiver of his right to trial by jury” that was “electronically signed by both [defendant] and his counsel.” Id. at *2. There is no indication in the opinion that the defendant claimed he had not personally executed the waiver.

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.