IN THE Court of Appeals of Indiana Joshua Butler, FILED Appellant-Defendant Apr 29 2025, 9:20 am CLERK Indiana Supreme Court Court of Appeals v. and Tax Court

State of Indiana, Appellee-Plaintiff

April 29, 2025 Court of Appeals Case No. 24A-CR-2631 Appeal from the Marion Superior Court The Honorable Linda E. Brown, Judge The Honorable Peggy R. Hart, Magistrate Trial Court Cause No. 49D36-2212-F6-32581

Opinion by Judge Pyle Judges Bradford and Kenworthy concur.

Court of Appeals of Indiana | Opinion 24A-CR-2631 | April 29, 2025 Page 1 of 4 Pyle, Judge.

[1] Joshua Butler (“Butler”) appeals his conviction, following a bench trial, of Level 6 felony impersonation of a public servant.1 He argues, and the State agrees, that the trial court committed fundamental error when it failed to confirm that Butler had personally waived his right to a jury trial. [2] Our Indiana Supreme Court has explained that “[t]he jury trial right is a bedrock of our criminal justice system, guaranteed by both Article I, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). Under Indiana constitutional jurisprudence, “in a felony prosecution, waiver [of the jury trial right] is valid only if communicated personally by the defendant[.]” Id. (emphasis in the original). Personal waiver of the right to a jury trial may be either in writing or in open court. Id. at 1159. Indiana has rejected the purported waiver of the right to a jury trial where such waiver is communicated by a defendant’s counsel. Id. at 1158-59 (citing inter alia, Kellums v. State, 849 N.E.2d 1110, 1113-14 (Ind. 2006); Good v. State, 366 N.E.2d 1169 (Ind. 1977)).

In other words,

[a] defendant is presumed not to waive his jury trial right unless he affirmatively acts to do so. It is fundamental error to deny a defendant a jury trial unless there is evidence of a knowing, voluntary, and intelligent waiver of that right. The defendant

IND. CODE § 35-44.1-2-6.

Court of Appeals of Indiana | Opinion 24A-CR-2631 | April 29, 2025 Page 2 of 4 must express his personal desire to waive a jury trial and such a personal desire must be apparent from the court’s record, whether in the form of a written waiver or a colloquy in open court . . . .

Pryor v. State, 949 N.E.2d 366, 371 (Ind. Ct. App. 2011) (internal citations and quotations omitted). And the trial court’s failure to confirm a defendant’s personal waiver before proceeding to a bench trial constitutes fundamental error. Horton, 51 N.E.3d at 1160.

[3] Here, our review of the record reveals no evidence that Butler personally waived his right to a jury trial. Rather, the evidence reveals that although Butler’s counsel signed and filed a jury trial waiver, Butler did not sign the waiver. (App. Vol. 2 at 110). Further, although Butler’s counsel told the trial court at a pre-trial hearing that counsel preferred a bench trial, Butler did not personally express, either at the pre-trial hearing or at trial, his desire to waive his right to a jury trial. The trial court’s failure to confirm Butler’s personal waiver before proceeding to a bench trial was fundamental error. See Horton, 51 N.E.3d at 1160. Accordingly, we reverse and remand for a new trial. See id.

[4] Reversed and remanded.

Bradford, J., and Kenworthy, J., concur.

ATTORNEY FOR APPELLANT Susan D. Rayl Harshman | Ponist Smith & Rayl Indianapolis, Indiana Court of Appeals of Indiana | Opinion 24A-CR-2631 | April 29, 2025 Page 3 of 4 ATTORNEYS FOR APPELLEE Theodore E Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-2631 | April 29, 2025 Page 4 of 4