A Clay County defendant waived her Sixth Amendment right to a jury trial when she signed a form acknowledging the deadline to demand a jury, then missed that deadline, the Indiana Court of Appeals ruled in an opinion upholding the denial of the defendant’s untimely jury trial demand.

In May 2016, Tarsha Cheesman’s employer, Page’s IGA grocery store in Brazil, agreed to give her a $50 cash advance from her next paycheck. However, surveillance footage later shows Cheesman stealing the $50 that had been set aside from her paycheck, and she never repaid the debt.

The state charged Cheesman with Class A misdemeanor theft, and at her initial hearing Cheesman signed an acknowledgement of rights that provided, among other things, that she must file a written demand for a jury trial within 10 days of her first scheduled trial date. Trial was initially set for Sept. 28, 2016, but was moved to Jan. 18 after a series of continuances. Cheesman moved for a jury trial on Jan. 6, but the Clay Circuit Court denied the motion as untimely.An additional series of continuances moved the trial to July 2017, when Cheesman was found guilty as charged.

She appealed in Tarsha Cheesman v. State of Indiana, 11A01-1708-CR-1939, arguing the trial court violated her rights by denying her request for a jury trial, but the Indiana Court of Appeals disagreed.

Judge Margret Robb initially in the Thursday opinion wrote that Cheesman’s jury demand was due by Sept. 19, 2016, but was not filed until almost four months later on Jan. 6. Further, Cheesman signed the form informing her of the deadline for demanding a jury trial, meaning she was advised her jury trial right, Robb said.

“To the extent Cheesman now argues that she never ‘expressly’ waived her Sixth Amendment trial by jury right, her argument leaves us unconvinced,” Robb wrote. “Although Cheesman explains the meaning of ‘express’ as ‘clearly and unmistakably stated,’ she fails to apply the standard to the facts presented here by explaining how exactly her actions were constitutionally inadequate, or what exactly is necessary to expressly waive her Sixth Amendment trial by jury right.”

“Moreover, we note that the specific language from (Patton v. United States, 281 U.S. 276, 299 (1930)) states that waiver requires the ‘express and intelligent consent of the defendant,’” Robb continued. “We view Cheesman’s signature on the Acknowledgement of Rights form and her subsequent failure to file a demand for a jury trial as reflecting her express and intelligent consent — especially considering that she now offers no argument to the contrary.”

Olivia Covington for www.theindianalawyer.com

A legal malpractice claim against a suspended northern Indiana attorney and his firm will continue after the Indiana Supreme Court found a genuine issue of material fact as to whether the plaintiff’s premises liability claim would have succeeded had the firm not failed to timely file her complaint.

While visiting her husband at St. Anthony Hospital in Crown Point, 85-year-old Elizabeth Roumbos walked around the foot of the hospital bed to a table on the other side of the bed, where a pitcher of water was located. After giving the water to her husband, Roumbos began to walk back to her seat on the other side of the bed, but tripped and fell on the way, resulting in a fractured femur. Roumbos claimed she tripped on cords and wires that were on the floor, but that she did not see them until after she fell.

The elderly woman hired now-suspended attorney Samuel Vazanellis and his firm, Thiros and Stracci, P.C., to represent her in her premises liability suit against the hospital. However, the firm failed to file Roumbos’ complaint within the applicable statute of limitations, so she sued for legal malpractice.

The Lake Superior Court initially entered summary judgment in favor of the firm, but the Indiana Court of Appeals reversed in February 2017, then reaffirmed its decision the following June. The case went to the Indiana Supreme Court in November, and in a Thursday opinion the justices determined the summary judgment ruling was improper.

Specifically, Justice Geoffrey Slaughter wrote there was a genuine issue of material fact as to whether the phone cords and wires that caused Roumbos’ fall were either a “known” or “obvious” danger. Looking first to whether the danger was “known,” Slaughter pointed to Roumbos’ testimony that she did not see the wires until after her fall to show it was not known. But turning to the question of an “obvious” danger, Slaughter said a jury could reasonably find the wires were not obvious to an ordinary person.

“For all we know the hospital bed and table obstructed the wires from view until Roumbos was right on top of them,” Slaughter wrote. “And by then it was too late.”

“The mere presence of a phone on the portable hospital table did not necessarily mean that a dangerous tripping threat existed on the floor that should have been obvious from Roumbos’ vantage point,” the justice continued. “Whether the wires generally, or the phone cord specifically, were obvious because they would have been apparent to a reasonable person under the circumstances is a disputed issue of material fact on this record that precludes summary judgment.”

Thus, the high court reversed the grant of summary judgment to the firm and remanded the case of Elizabeth Roumbos v. Samuel G. Vazanellis & Thiros and Stracci, P.C., 45S03-1710-CT-635, for further proceedings.

All justices concurred.