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Cheesman v. State

Court of Appeals of Indiana

April 12, 2018

Tarsha Cheesman, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana.

          Jesse R. Drum Deputy Attorney General Indianapolis, Indiana.

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] 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.

         Facts and Procedural History[1]

         [¶2] 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.

         [¶3] 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.

         Appellant's Appendix, Volume II at 14 (emphasis added).

         [¶4] 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.

         [¶5] 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.

         Discussion and Decision

         [¶6] 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.

         [¶7] 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 35-37-1-2.[2]

         [¶8] 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. ...


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