Shepard, Senior Judge.
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In December 2012, the State charged appellant Carlos I. Nunez with rape as a class B felony. Ind. Code § 35-42-4-1 (1998). Nunez subsequently filed a verified waiver of jury trial, and the trial court accepted the waiver after a hearing in which Nunez participated. Following a bench trial, the court found Nunez guilty as charged and sentenced him to ten years.
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Nunez presents the issue on appeal this way: whether the trial court wrongly accepted his waiver because it was not voluntary and intelligent.
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In seeking to waive jury, Nunez signed two waiver forms — one in English and one in Spanish. Nunez’s appeal rests on a claim that the Spanish version was incomplete.
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Subsequently, in open court with an interpreter present, the court questioned Nunez about the waiver. In the course of this discussion, Judge Kellams asked Nunez if he had signed the waivers and if he understood that he was giving up the right to a jury trial. Nunez, through the interpreter, responded in the affirmative. The court also asked if Nunez had any questions about the fact that the trial would be conducted by the judge and the judge would make the determination about guilt. Nunez said he did not. The court determined the waiver was adequate.
The Spanish version of the written waiver appears to mirror the English version, and Nunez apparently accepts that it covers the various explanations about jury trials and bench trials. But Nunez says the Spanish waiver lacks two provisions that are present in the English version: (1) a declaration that no promises or threats coerced him to waive his right to a jury trial, and (2) a declaration that the waiver was being made knowingly, understandingly, and voluntarily.
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So, what happens when a person convicted after a bench trial seeks to set aside the conviction on grounds that such procedures were inadequate? [Footnote omitted.] In light of the fact that a person convicted by trial or plea is no longer presumed innocent, Williams v. State, 273 Ind. 547, 549-50, 406 N.E.2d 241, 243 (1980), the prevailing rule is that he bears the burden of establishing grounds on which the conviction should be set aside.
There is but one exception to this general rule. It is an important but narrow exception applicable to guilty pleas under collateral attack. There, when the convicted challenger can show that the record is silent about whether he knew he was giving up three critical rights – trial by jury, facing the accusers, and the right against self-incrimination – the challenger prevails. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “Presuming waiver from a silent record is impermissible,” Justice Douglas wrote for the Court. Id. at 242. …
Aside from the Boykin exception applicable to guilty pleas, the U.S. Supreme Court and federal circuits apply the general rule on burden of proof, including with respect to claims about waiver of jury:
If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.
Adams v. U.S. ex rel. McCann, 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268 (1942). As the Sixth Circuit said more recently, “Although we will not presume waiver from a silent record, the burden of demonstrating that a waiver of jury trial was not valid lies with the defendant who waived it.” Sowell v. Bradshaw, 372 F.3d 821, 832 (6th Cir. 2004), cert. denied, 544 U.S. 925, 125 S. Ct. 1645, 161 L. Ed. 2d 485 (2005). This accords with the Seventh Circuit’s declaration that a defendant who “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge” has knowingly and intelligently waived his right to trial by jury. U.S. ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S. Ct. 982, 79 L. Ed. 2d 219 (1984).
At the heart of the voluntary and intelligent requirement, of course, is concern that a defendant might waive jury out of ignorance or as a result of coercion or deception. In this case, the straightforward claim is that Nunez did not affirmatively tell the trial court that his decision to waive was voluntary and intelligent. Like the Sixth Circuit, we conclude that an appellant unable to point to actual evidence of some miscarriage like ignorance or coercion cannot prevail on direct appeal. See U.S. v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).
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If there is actually any evidence that Nunez’s waiver was the product of coercion or improper inducements, Indiana courts are open to receive it.
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Affirmed.
Krisch, J., and Crone, J., concur.