from the Clay Circuit Court The Honorable Joseph D. Trout,
Judge Trial Court Cause No. 11C01-1606-CM-473
Attorney for Appellant Victoria L. Bailey Indianapolis,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
R. Drum Deputy Attorney General Indianapolis, Indiana.
Summary and Issue
Following a bench trial, Tarsha Cheesman was convicted of
theft, a Class A misdemeanor. Cheesman now appeals,
presenting only one issue for our review which we restate as
whether the trial court erred in denying Cheesman's
demand for a jury trial. Concluding the trial court did not
err, we affirm.
and Procedural History
In May of 2016, Cheesman was employed by Page's IGA
Grocery Store in Brazil, Indiana. On May 31, she requested a
$50 cash advance from her next paycheck. The owner obliged,
Cheesman signed a note promising to repay the $50, and the
owner left a note instructing another employee to withhold
$50 after cashing Cheesman's next paycheck. In a video
later presented at trial, Cheesman can be seen stealing the
$50 which the employee had set aside, and, although given
another opportunity to repay the debt, Cheesman never did.
State's Exhibit 1.
On June 22, 2016, Cheesman was charged with theft, a Class A
misdemeanor. On August 1, 2016, the trial court conducted an
initial hearing at which Cheesman signed a Defendant's
Acknowledgement of Rights providing:
4. (For Misdemeanor cases only) If you wish to exercise your
right to trial by jury, you must file a written demand for a
jury trial. You must file this written demand no later
than ten (10) days before your first scheduled trial
date. If you fail to file a written demand, or if you
file a written demand but you file it late, you give up your
jury trial right, permanently. If you give up your jury trial
right, you will have no say about whether it will be a jury
or a judge who hears the evidence at your trial and
determines whether the State of Indiana proves your guilt
beyond a reasonable doubt.
Appendix, Volume II at 14 (emphasis added).
The trial court set Cheesman's trial date for September
28, 2016. Cheesman moved to continue her trial and the trial
court set a new trial date of December 7, 2016. Then, on
November 18, 2016, the trial court set a new trial date of
January 18, 2017, due to the unavailability of the presiding
judge on the previously scheduled date. On January 6, 2017,
Cheesman moved for a jury trial and a continuance. The trial
court granted Cheesman's request for a continuance,
setting a new trial date of April 19, 2017, but denied her
demand for a jury trial because it was untimely filed.
On April 7, 2017, the State moved to amend the information.
Cheesman waived her initial hearing on the amended
information and requested a continuance, which the trial
court granted, and the trial court set a new trial date of
May 10, 2017. On May 1, 2017, again because of the presiding
judge's unavailability on the scheduled date, the trial
court reset the trial date for July 26, 2017, when
Cheesman's trial was finally conducted. The trial court
found Cheesman guilty as charged and sentenced her to one
year suspended to probation. Cheesman now appeals.
On appeal, Cheesman argues that although Sixth Amendment
jurisprudence only permits express waiver of a
defendant's jury trial right, Indiana Criminal Rule 22
permits waiver where a defendant fails to file a timely
request for a jury trial-timely being ten days prior to the
defendant's first scheduled trial date. Therefore,
Cheesman alleges that her Sixth Amendment jury trial right
was violated when the trial court denied her jury demand. In
turn, the State argues that Cheesman waived her jury trial
right through her signature on the Defendant's
Acknowledgement of Rights and her subsequent failure to
demand a jury trial within the allotted time period.
Notably, Cheesman confines her argument to the Sixth
Amendment to the United States Constitution and does not
present argument regarding Article 1, Section 13 of the
Indiana Constitution, or Indiana Code Section
Indiana Criminal Rule 22 provides:
A defendant charged with a misdemeanor may demand trial by
jury by filing a written demand therefor not later than ten
(10) days before his first scheduled trial date. The failure
of a defendant to demand a trial by jury as required by this
rule shall constitute a waiver by him of trial by jury unless
the defendant has not had at least fifteen (15) days advance
notice of his scheduled trial date and of the consequences of
his failure to demand a trial by jury.
The trial court shall not grant a demand for a trial by jury
filed after the time fixed has elapsed except upon the
written agreement of the state and defendant, which agreement
shall be filed with the court and made a part of the record.
If such agreement is filed, then the trial court may, in its
discretion, grant a trial by jury.
Applied here, the Rule required Cheesman's demand for a
jury trial be filed by September 18, 2016, ten days before
the first scheduled trial date of September 28. However,
because September 18 fell on a Sunday, pursuant to Indiana
Trial Rule 6(A)(2), Cheesman's demand was due Monday,
September 19. ...