ANWAY v. STATE (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Daniel Lee Anway appeals, contending the trial court committed fundamental error when it made the habitual offender enhancement determination without inquiring whether he personally waived his right to a jury trial in those proceedings. The State concedes the error. Based on the State's concession and our independent review, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

[2] On January 8, 2025, the State charged Anway with Level 5 felony battery on a public safety official resulting in bodily injury, Level 6 felony intimidation, Class A misdemeanor resisting law enforcement, and Class B misdemeanor public intoxication. The State later added two counts of Level 6 felony intimidation and an habitual offender sentencing enhancement.

[3] A jury trial began on May 1, at the conclusion of which Anway was found guilty as charged. While awaiting the verdict in the guilt phase of the trial, Anway's counsel told the court:

[I]f there is a verdict of guilty on a felony count, we would have the habitual offender phase uh, my client and I are willing to stipulate to those. So I don't know how you want to handle that. Instead of having it presented to the jury, we'll stipulate.

Tr. Vol. 2, p. 213. The court responded:

Okay um, well that's fine. I think that, of course, the State needs to, I presume, lay a factual basis. So I don't know if you want to do that through Mr. Anway or through whoever else you have, but that's fine.

Id. at 214. Anway's counsel responded: “Very good, judge.” Id.

[4] After the jury returned a guilty verdict on all charges, the trial court informed the jury:

Normally this would end the trial. However, in this case, the State has filed an additional count alleging that [Anyway] has prior unrelated convictions. Under Indiana law, you could not be told about this additional count until now. In this part of the trial, the attorneys will demonstrate that [Anway] has prior convictions which qualify him for being an habitual offender. And I believe that, at least I've been told that [Anway] will stipulate that he does have these prior convictions, which the court appreciates. But I think that for purposes of the record, the State needs to lay a factual basis.

Id. at 215. But after an exchange with counsel, the court swore in Anway so that his counsel could establish a factual basis. Id. During one of Anway's responses, he used inflammatory language to describe his version of the facts of the prior offense rather than simply admitting he had the prior conviction at issue. The State then requested that the jury be removed, but the request was not ruled on. The trial court then asked the State to establish a factual basis for the convictions, which it did through a different witness and certified copies of Anway's prior convictions.

[5] After the evidence was presented, the trial court stated, “Well, with regards to phase two, pursuant to the stipulation and the evidence presented, I find that there is a basis and that [Anway] is in fact a habitual criminal offender as alleged in this additional count.” Id. at 221. Judgment of conviction was entered, the sentencing hearing was scheduled, and the jury was excused. The court's written order stated in pertinent part, “The [c]ourt is advised by [defense counsel] that the defendant stipulates to the finding of guilty and [the court] now further finds the defendant guilty of being a Habitual Criminal Offender.” Appellant's App. Vol. II, p. 53. No objection was made to the procedure.

Discussion and Decision

[6] Because there was no objection, Anway contends that the trial court committed fundamental error by finding that he was an habitual offender without obtaining his personally-communicated waiver of his right to a jury trial in phase two. “ ‘Fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible.’ ” Benefield v. State, 945 N.E2d 791, 801 (Ind. Ct. App. 2011) (quoting Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied). The State agrees that a personally-communicated waiver was not given, and thus, there was fundamental error. However, we independently review the record on the matter.

[7] Indiana requires that a defendant personally waive the right to a jury trial, either orally or in writing. Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016); Nunez v. State, 43 N.E.3d 680, 683 (Ind. Ct. App. 2015) (right may be waived either in writing or in open court), trans. denied. “This right also applies to habitual offender proceedings.” O'Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct. App. 2003).

[8] There is nothing in the record to show that Anway personally waived his right to have a jury trial on the habitual offender enhancement phase of his trial. Anway did indicate that he would stipulate to the prior convictions that qualified him as an habitual offender. Tr. Vol. 2, p. 213. But, instead of submitting the evidence to the jury, which remained seated for that phase, the court made the status determination. Id. at 221.

[9] The record does show some confusion as to the nature of the stipulation. In any event, if the stipulation was to a bench trial or Anway's status as an habitual offender, each of those would have required a personally-communicated waiver of a jury trial. See Horton, 51 N.E.3d at 1160 (jury trial); Saylor v. State, 55 N.E.3d 354, 366 (Ind. Ct. App. 2016) (if defendant pleads guilty to habitual offender enhancement, he must personally waive right to jury trial on habitual offender enhancement), trans. denied. And if he was stipulating that he had been previously convicted of the prior qualifying offenses, the jury, which remained seated for that phase, should have made the determination.

[10] We conclude that the record demonstrates fundamental error. In this circumstance, the proper procedure is for us to reverse the trial court's finding in the habitual offender phase. See Bradtmiller v. State, 113 N.E.3d 255, 257 (Ind. Ct. App. 2018). We remand this case to the trial court for a proper advisement of Anway's right to a jury trial in the habitual offender enhancement phase and for further proceedings, as necessary, consistent with this opinion. See id.

[11] Reversed and remanded.

Crone, Senior Judge.

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