Olivia Covington for www.theindianalawyer.com

The Indiana Court of Appeals has affirmed a man’s conviction of operating a vehicle while intoxicated after finding that his failure to request a jury trial for his misdemeanor charge constituted a waiver of his right to a jury.

In Evaristo Martinez v. State of Indiana, 49A02-1609-CR-2155, Martinez was initially pulled over for speeding and failing to use a turn signal, but was then taken to the police station after exhibiting signs of intoxication and failing a field sobriety test. A chemical breath test conducted at the station revealed an alcohol concentration equivalent of 0.129 grams of alcohol per 210 liters of breath.

As a result, Martinez was charged with two counts of operating a vehicle while intoxicated, one as a Class A misdemeanor and one as a Class C misdemeanor. He was also charged with Class C misdemeanor driving without ever receiving a license.

Martinez spoke limited English, so at his initial hearing he received a Spanish-language written advisements of rights, which informed him he had the right to a jury trial, but that he would have to request a jury at least 10 days before trial. The form went on to say that if Martinez did not make such a request, he would waive that right.

Martinez signed the form and retained counsel, and the Marion Superior Court set his trial for June 9, 2016. After Martinez failed to file a request for a jury, he was convicted of the OWI offenses at a bench trial. The judge vacated the Class C misdemeanor OWI charge and sentenced him on the Class A count.

On appeal, Martinez argued he did not validly waive his right to a jury trial. But in a Tuesday opinion, Judge Robert Altice wrote Martinez waived such an argument because he did not provide transcripts of any pretrial hearings, which would be “integral” to the appellate court’s review.

Waiver notwithstanding, Martinez argued that requiring a person charged with a misdemeanor to request a jury trial under Indiana Criminal Rule 22 is a violation of the Sixth Amendment. In order for his waiver to have been valid under the Sixth Amendment, Martinez said he was required to personally waive his right either in writing or verbally. But Altice pointed to Horton v. State, 51 N.E.3d at 1158, n.1., in which the Indiana Supreme Court noted that personal waiver is required only in felony prosecution.

Martinez, however, directed the court to the case of Jean-Baptiste v. State, 71 N.E.3d 406 (Ind. Ct. App. 2017), in which the Court of Appeals reversed a misdemeanor conviction based partly on the fact that the defendant had requested a jury trial, even though he didn’t comply with Rule 22. But in the instant case, the appellate panel declined to follow Jean-Baptiste because it “represents a departure from a long line of case law.”

“In Horton, our Supreme Court recognized a personal waiver requirement in felony cases emanating from state statute,” Altice wrote. “Moreover, Indiana courts have routinely noted that misdemeanor defendants waive their right to a jury trial by failing to make a timely jury demand – no affirmative waiver is required.”