ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David B. LeBeau Jeffrey A. Modisett
Deputy Public Defender Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
COURT: You wish to waive jury and go to the bench .
. . or to the Court.
THE DEFENDANT: Right.
COURT: Alright. You understand, Mr. Dixie, that you have an absolute constitutional right guaranteed to you by the United States as well as the Indiana State Constitution to have a jury of your peers determine your case?
THE DEFENDANT: Yes I do.
COURT: And you don't wish that to occur?
THE DEFENDANT: No.
Record at 96-97.
The trial court then held a bench conference with counsel to discuss the defendant's earlier claims of ineffective assistance of his trial counsel in relation to the waiver. In this conference, defense counsel explained that the defendant's decision on the waiver was against his advice. The trial court addressed the defendant: "[Y]our attorney has indicated on the record, Mr. Dixie, that this isn't his idea to waive jury. That this is your idea . . . . And I want to confirm again with you, Mr. Dixie, that this is, in fact, something that you wish to do." Record at 102. The defendant responded, "Yes." Record at 102. The trial court entered a finding that the waiver was knowing, intelligent, and voluntary. Immediately before trial, the trial court again asked the defendant if he wanted to waive his right to a jury trial and have the case tried by the court, and the defendant replied affirmatively.
The defendant's claim that his decision was not the product of a will that has the capacity to understand is not supported in the record. The defendant cites to his own testimony regarding Dr. Rathbun's report to support his argument. The trial court considered the Rathbun report when it determined that the defendant was competent to stand trial, and, according to the trial court's entry, Dr. Rathbun concluded that the defendant suffered from a mood disorder, especially a persistent manic state.
Other portions of the record also support the inference that the defendant understood the proceedings and the choice that he was making. The trial court asked the defendant more than once about his intentions, and, although the defendant's responses were short, they were responsive and express his awareness of the rights at issue and his understanding of the trial court's questions. The defendant was not unfamiliar with criminal procedure. He has a significant criminal history, including two felony convictions for rape and battery, seven misdemeanor convictions, and one juvenile adjudication. See Poore, 681 N.E.2d at 207 ("high level of familiarity with judicial process," including five prior felony convictions, supported finding of intelligent and voluntary waiver). The defendant's familiarity with the judicial process is further evidenced by his written communication with the trial court regarding his constitutional rights, specifically the right to effective assistance of counsel, and his use of case citation to support his argument. Likewise, on several occasions, the defendant expressed his concerns to the trial court regarding his trial counsel's performance.
We find that the record provides sufficient evidence of the defendant's ability to know and understand what he was doing when he waived his right to a jury trial. The trial court did not err in determining that the defendant intelligently and voluntarily waived his right to a jury trial.
The defendant next claims that even if he intelligently and voluntarily waived his right to a jury trial as to the murder charge, he did not intelligently and voluntarily waive this right as to the habitual offender trial. The right to trial by jury applies to habitual offender proceedings. See Ind. Code § 35-50-2-8. The defendant argues, based upon Snyder v. State, 668 N.E.2d 1214 (Ind. 1996), that because the record is silent as to any advisement of the right to a jury trial in the habitual offender phase, he is entitled to a new habitual offender phase. In Snyder, we addressed the advisement of rights required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when a criminal defendant pleads guilty, including an advisement that the defendant is waiving his right to a jury trial at the habitual offender phase. Snyder, 668 N.E.2d at 1215-16. The defendant in this case did not plead guilty, and the requirements of advisement under Boykin and Snyder are not at issue.
Here, the defendant was charged in a multi-count information with murder (count I, part I), being a habitual offender (count I, part II), battery (count II, parts I and II), and being a habitual offender (count II, part III). On more than one occasion before the trial, the defendant waived his right to a jury trial, including in a written agreement that encompassed all proceedings within the cause, which was signed by the defendant and his attorney. At the same pre-trial proceeding in which the defendant was asked for a second time whether he wanted to waive his right to a jury trial, the State dismissed count II, in all three parts, and stated that it was ready to proceed on count I, parts I and II. In accepting the dismissal, the trial court stated that the trial would proceed on count I, part I, and, if a habitual offender proceeding was necessary, it would be conducted in a bifurcated proceeding.
The trial court did not err in accepting the defendant's written and oral waivers of his right to a jury trial as to all proceedings within the cause, including the habitual offender phase.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.