Vaidik, C.J.
Case Summary
James E. Saylor was convicted of molesting his stepdaughter, pled guilty to being a habitual offender, and was sentenced to 138 years. We affirmed on direct appeal. Saylor then sought post-conviction relief raising numerous issues, including that his trial counsel was ineffective for conceding his guilt to two counts of Class A felony child molesting during closing argument and that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.
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As for Saylor’s argument that he did not personally waive his right to a jury trial on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed the personal-waiver requirement when a defendant proceeds to a bench trial in Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016 Page 3 of 23 Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). Although this case involves a guilty plea—and not a bench trial like in Horton—and there is a different statute that governs guilty pleas, we find that the same rationale applies when a defendant waives his right to a jury trial when pleading guilty. Accordingly, because Saylor did not personally waive his right to a jury trial—rather, his attorney did—when he pled guilty to being a habitual offender, we vacate his habitual-offender adjudication and remand for a new trial on that charge. We affirm the post-conviction court on all other issues that Saylor raises.
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II. Personal-Waiver Requirement
Saylor next contends that his guilty plea to the habitual-offender charge was not knowing, voluntary, and intelligent because he did not personally waive his right to a jury trial.10 See Appellant’s Br. p. 29.
The record shows that while the jury was in the jury room waiting for the habitual-offender phase of trial to begin, defense counsel requested a brief recess to discuss the habitual-offender charge with Saylor. The following colloquy then occurred:
[Defense counsel]: . . . Your Honor, I’ve . . . I’ve discussed Mr. Saylor’s options with respect to the . . . habitual phase, and I’ve explained to him he has a right to a jury. He could waive jury and have the Court decide or that we can plead guilty to it understanding that there are no promises or guarantees. He’s pleading guilty open, and given the fact that we’ve already testified I think to facts that would constitute habitual offender status, he’s willing to plead guilty and send the jury home.
[Trial Court]: Okay. What I’m going to do, and there is evidence support[ing] that that is in the record, I’m going to read this charge to you, Mr. Saylor, and I’m going to ask you to make a plea on it. [substance of habitual-offender charge omitted]. To that charge, how do you plead? Guilty or not guilty?
[Saylor]: Guilty.
[Trial court]: Okay. The Court will accept that plea and will not[e] in the record that . . . that there is evidence in the file or probable cause to support . . . to lay a factual basis for that plea and will accept that plea.
The Indiana Supreme Court recently reaffirmed the personal-waiver requirement in Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). …
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On appeal, our Supreme Court noted that the jury-trial right is “a bedrock of our criminal justice system” and was guaranteed by both the federal and state constitutions. Id. at 5. …
The Court cited the source for the personal-waiver requirement as Indiana Code section 35-37-1-2, which provides: The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal Procedure, all other trials must be by jury.[11] (Emphases added).
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… Because the right to a jury trial is a bedrock of our criminal-justice system, the same protection should be afforded to defendants who plead guilty—and not just to those who proceed to a bench trial. Accordingly, when a defendant pleads guilty, he must personally waive his right to a jury trial.
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Here, there is no evidence that Saylor personally waived his right to a jury trial on the habitual-offender charge. Instead, after the first phase of trial ended, defense counsel told the trial court that Saylor was “willing to plead guilty and send the jury home.” Because Saylor did not personally waive his right to a jury trial, we vacate his habitual-offender adjudication and remand for a new trial on that charge.
Affirmed in part, and vacated and remanded in part.
Bailey, J., and Crone, J., concur.