Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 1 of 3

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Adam C. Squiller

Squiller & Harley

Auburn, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Ventura S. Sanchez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff. 

November 23, 2016

Court of Appeals Case No.

44A03-1603-CR-564

Appeal from the LaGrange 

Superior Court

The Honorable Lisa BowenSlaven, Judge

Trial Court Cause No.

44D01-1306-FB-17

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 2 of 3

[1] Ventura Sanchez appeals his convictions of Class B felony sexual deviate 

conduct1 and Class B felony incest2 following a bench trial. He argues he did 

not personally waive his right to a trial by jury. The State concedes reversible 

error occurred. Accordingly, we reverse and remand for a new trial. 

Facts and Procedural History

[2] On June 24, 2013, the State charged Sanchez with Class B felony sexual deviate 

conduct, Class B felony incest, and Class D felony sexual battery.3

 On August 

5, 2015, Sanchez filed notice he was ready for trial, a waiver of trial by jury, and 

a motion to set his cause for a bench trial. Sanchez’s counsel had signed the 

jury trial waiver, but Sanchez had not personally signed the waiver. The trial 

court held a bench trial and convicted Sanchez of sexual deviate conduct and 

incest.

4

Discussion and Decision

[3] Both the United States and Indiana Constitutions guarantee the right to jury

trial. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); U.S. Const. amend. VI; 

 

1 Ind. Code § 35-42-4-2 (1998).

2 Ind. Code § 35-46-1-3(a) (1994).

3 Ind. Code § 35-42-4-8(a)(1)(A) (2012).

4 The trial court determined it was prohibited from convicting Sanchez of both criminal deviate conduct and 

sexual battery “pursuant to the actual evidence test of the Indiana Double Jeopardy principles[.]” (App. Vol. 

III at 11-12.)
Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 3 of 3

Ind. Const. art. 1 § 13. We presume a defendant did not waive this right unless 

he affirmatively acts to do so. Poore, 681 N.E.2d at 207. “To constitute a valid 

waiver of the right to a jury trial, [a] defendant’s waiver must be knowingly, 

voluntarily, and intelligently made with sufficient awareness of the relevant 

circumstances surrounding its entry and consequences.” Anderson v. State, 833 

N.E.2d 119, 122 (Ind. Ct. App. 2005). In addition, the waiver “must be 

‘personal,’ either in a writing signed by the defendant or in the form of a 

colloquy in open court between the defendant and judge.” Kellems v. State, 849 

N.E.2d 1110, 1112-13 (Ind. 2006).

[4] Sanchez did not sign the jury trial waiver that defense counsel filed. Nor does 

the record reflect a colloquy in open court between Sanchez and the trial court. 

As Sanchez did not personally express a desire to waive his right to jury trial, 

the waiver is invalid. See Anderson, 833 N.E.2d at 122 (holding waiver invalid 

where defendant neither signed the waiver nor expressed his personal desire to 

waive right to jury trial in open court). We therefore vacate Sanchez’s 

convictions and remand this case for a jury trial.

[5] Reversed and remanded.

Kirsch, J., and Crone, J., concur.