Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 1 of 15

ATTORNEY FOR APPELLANT

Victoria L. Bailey

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tarsha Cheesman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 12, 2018

Court of Appeals Case No.

11A01-1708-CR-1939

Appeal from the Clay Circuit 

Court

The Honorable Joseph D. Trout, 

Judge

Trial Court Cause No.

11C01-1606-CM-473

Robb, Judge.
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 2 of 15

Case Summary and Issue

[1] Following a bench trial, Tarsha Cheesman was convicted of theft, a Class A 

misdemeanor. Cheesman now appeals, presenting only one issue for our 

review which we restate as whether the trial court erred in denying Cheesman’s 

demand for a jury trial. Concluding the trial court did not err, we affirm. 

Facts and Procedural History1

[2] In May of 2016, Cheesman was employed by Page’s IGA Grocery Store in 

Brazil, Indiana. On May 31, she requested a $50 cash advance from her next 

paycheck. The owner obliged, Cheesman signed a note promising to repay the 

$50, and the owner left a note instructing another employee to withhold $50 

after cashing Cheesman’s next paycheck. In a video later presented at trial, 

Cheesman can be seen stealing the $50 which the employee had set aside, and, 

although given another opportunity to repay the debt, Cheesman never did. 

State’s Exhibit 1. 

[3] On June 22, 2016, Cheesman was charged with theft, a Class A misdemeanor. 

On August 1, 2016, the trial court conducted an initial hearing at which 

Cheesman signed a Defendant’s Acknowledgement of Rights providing:

 

1 We heard oral argument in Hammond, Indiana, at the Hammond Academy of Science and Technology on 

March 19, 2018. We thank the faculty, staff, and students of the Hammond Academy of Science and 

Technology for their generous hospitality and commend counsel for their skilled and informative oral 

advocacy.
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 3 of 15

4. (For Misdemeanor cases only) If you wish to exercise your 

right to trial by jury, you must file a written demand for a jury 

trial. You must file this written demand no later than ten (10) days 

before your first scheduled trial date. If you fail to file a written 

demand, or if you file a written demand but you file it late, you 

give up your jury trial right, permanently. If you give up your 

jury trial right, you will have no say about whether it will be a 

jury or a judge who hears the evidence at your trial and 

determines whether the State of Indiana proves your guilt beyond 

a reasonable doubt. 

Appellant’s Appendix, Volume II at 14 (emphasis added). 

[4] The trial court set Cheesman’s trial date for September 28, 2016. Cheesman 

moved to continue her trial and the trial court set a new trial date of December 

7, 2016. Then, on November 18, 2016, the trial court set a new trial date of 

January 18, 2017, due to the unavailability of the presiding judge on the 

previously scheduled date. On January 6, 2017, Cheesman moved for a jury 

trial and a continuance. The trial court granted Cheesman’s request for a 

continuance, setting a new trial date of April 19, 2017, but denied her demand 

for a jury trial because it was untimely filed. 

[5] On April 7, 2017, the State moved to amend the information. Cheesman 

waived her initial hearing on the amended information and requested a 

continuance, which the trial court granted, and the trial court set a new trial 

date of May 10, 2017. On May 1, 2017, again because of the presiding judge’s 

unavailability on the scheduled date, the trial court reset the trial date for July 

26, 2017, when Cheesman’s trial was finally conducted. The trial court found 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 4 of 15

Cheesman guilty as charged and sentenced her to one year suspended to 

probation. Cheesman now appeals. 

Discussion and Decision 

[6] On appeal, Cheesman argues that although Sixth Amendment jurisprudence 

only permits express waiver of a defendant’s jury trial right, Indiana Criminal 

Rule 22 permits waiver where a defendant fails to file a timely request for a jury 

trial—timely being ten days prior to the defendant’s first scheduled trial date. 

Therefore, Cheesman alleges that her Sixth Amendment jury trial right was 

violated when the trial court denied her jury demand. In turn, the State argues 

that Cheesman waived her jury trial right through her signature on the 

Defendant’s Acknowledgement of Rights and her subsequent failure to demand 

a jury trial within the allotted time period. 

[7] Notably, Cheesman confines her argument to the Sixth Amendment to the 

United States Constitution and does not present argument regarding Article 1, 

Section 13 of the Indiana Constitution, or Indiana Code Section 35-37-1-2.2 

[8] Indiana Criminal Rule 22 provides: 

A defendant charged with a misdemeanor may demand trial by 

jury by filing a written demand therefor not later than ten (10) 

 

2

Indiana Code section 35-37-1-2 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.
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 5 of 15

days before his first scheduled trial date. The failure of a 

defendant to demand a trial by jury as required by this rule shall 

constitute a waiver by him of trial by jury unless the defendant 

has not had at least fifteen (15) days advance notice of his 

scheduled trial date and of the consequences of his failure to 

demand a trial by jury.

The trial court shall not grant a demand for a trial by jury filed 

after the time fixed has elapsed except upon the written 

agreement of the state and defendant, which agreement shall be 

filed with the court and made a part of the record. If such 

agreement is filed, then the trial court may, in its discretion, grant 

a trial by jury.

Applied here, the Rule required Cheesman’s demand for a jury trial be filed by 

September 18, 2016, ten days before the first scheduled trial date of September 

28. However, because September 18 fell on a Sunday, pursuant to Indiana 

Trial Rule 6(A)(2), Cheesman’s demand was due Monday, September 19. 

Cheesman’s demand was not filed until January 6, 2017—almost four months 

late. 

I. Standard of Review

[9] Whether a defendant has waived her jury trial right under the Sixth 

Amendment is a question of law and we review such questions de novo. Horton 

v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 6 of 15

II. The Jury Trial Right

A. The Sixth Amendment 

[10] The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a 

speedy and public trial, by an impartial jury of the state and 

district wherein the crime shall have been committed, which 

district shall have been previously ascertained by law, and to be 

informed of the nature and cause of the accusation; to be 

confronted with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have the 

assistance of counsel for his defense.

[11] In criminal cases, the jury trial right is “fundamental to the American scheme of 

justice,” and such right has been incorporated to the states by way of the 

Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). This 

jury trial right extends to all charged with “serious” offenses. Id. at 160-61. 

Whether an offense is “serious,” as opposed to “petty,” is answered by 

“consider[ing] the maximum penalty attached to the offense.” Lewis v. United 

States, 518 U.S. 322, 326 (1996). A “serious offense” is any offense “where 

imprisonment for more than six months is authorized.” Baldwin v. New York, 

399 U.S. 66, 69 (1970).

[12] In this case, Cheesman was charged with theft, a Class A misdemeanor. A 

Class A misdemeanor carries a possible term of imprisonment “of not more 

than one (1) year.” Ind. Code § 35-50-3-2. Thus, as a matter of federal 

constitutional law, Class A misdemeanors constitute “serious offenses” for the 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 7 of 15

purposes of the Sixth Amendment.

3

 See, e.g., Martinez v. State, 82 N.E.3d 261, 

264 n.4 (Ind. Ct. App. 2017), trans. denied.

B. Waiver Under the Sixth Amendment 

[13] On appeal, Cheesman claims that her signature on the Defendant’s 

Acknowledgement of Rights form and her subsequent failure to demand a jury 

trial within the time permitted by Indiana Criminal Rule 22 were insufficient to 

constitute a valid waiver of her Sixth Amendment right to a trial by jury. We 

disagree. 

[14] It has long been established that a criminal defendant may waive his or her 

Sixth Amendment jury trial right. Patton v. United States, 281 U.S. 276, 299 

(1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78 (1970). Our 

supreme court recently discussed such waiver in Horton v. State: 

The 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. In broad view, federal and Indiana constitutional 

jury trial rights guarantee the same general protection—a 

criminal defendant must receive a jury trial, unless he waives it. 

Waiver of the Sixth Amendment jury trial right must be “express 

and intelligent,” Patton v. United States, 281 U.S. 276, 312, 50 

S.Ct. 253, 74 L.Ed. 854 (1930), and waiver of the Indiana 

 

3 Under the Supreme Court’s definition, “serious offenses” in Indiana for the purpose of the Sixth 

Amendment are Class A misdemeanors and all felonies. Class B and Class C misdemeanors carry maximum 

possible sentences of six months and two months, respectively. Ind. Code §§ 35-50-3-3; 35-50-3-4. Thus, 

they constitute “petty” offenses—without the protection of the Sixth Amendment. 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 8 of 15

constitutional jury trial right must be “knowing, voluntary[,] and 

intelligent,” Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989). 

But the Indiana jury trial right provides greater protection 

because, in a felony prosecution, waiver is valid only if 

communicated personally by the defendant, Kellems [v. State, 849 

N.E.2d 1110, 1114 (Ind. 2006)]—an issue which, under the Sixth 

Amendment, has split federal circuit courts of appeals. Compare 

United States v. Khan, 461 F.3d 477, 492 (4th Cir. 2006) 

(upholding written waiver signed only by counsel), and United 

States v. Leja, 448 F.3d 86, 94-95 (1st Cir. 2006) (same), and 

United States v. Page, 661 F.2d 1080, 1081-82 (5th Cir. 1981) 

(upholding oral waiver by counsel), with United States v. Diaz, 540 

F.3d 1316, 1321-22 (11th Cir. 2008) (refusing to uphold written 

waiver signed only by counsel).

51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis added). 

[15] We addressed a claim similar to Cheesman’s in Martinez v. State. There, 

Martinez was charged with a Class A misdemeanor and several Class C 

misdemeanors. At his initial hearing, Martinez—who spoke limited English—

signed a written acknowledgement of rights form in Spanish. 82 N.E.3d at 263. 

After failing to file a timely request for a jury trial, Martinez was convicted of a 

Class A misdemeanor at a bench trial and he subsequently appealed his 

conviction presenting two arguments: 

First, he argue[d] that requiring a person charged with a Class A 

misdemeanor to follow the procedures set forth in Ind. Criminal 

Rule 22 in order to exercise his or her right to a jury trial violates 

the Sixth Amendment to the U.S. Constitution. Second, he 

argue[d] that the record in this case does not reflect a knowing 

and intelligent waiver because the trial court gave him 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 9 of 15

contradictory and ambiguous advisements concerning his right to 

a jury trial.

Id. at 264. 

[16] Notwithstanding Martinez’s waiver of the issues due to his failure to present a 

complete record for our review, we nevertheless attempted to address his claims 

on the merits. Regarding his first argument, we explained, “even if we assume 

that Martinez did not personally waive his right to a jury trial, we conclude that 

no such waiver was constitutionally required.” Id. at 265. In doing so, we 

distinguished Horton, because the personal waiver discussed therein stemmed 

from a state statute—not the Sixth Amendment—and related to felony 

prosecutions—not misdemeanors. Id. Regarding his second argument, we noted 

that Martinez did not dispute the validity of the written acknowledgement of 

rights form, nor did he claim that he did not understand it. Rather, Martinez 

claimed the form was later contradicted when he was advised that if “he wished 

to waive his right to a jury trial, he must do so affirmatively in writing.” Id. at 

266. We then explained that the absence of transcripts hindered our review of 

the issue and concluded that Martinez had therefore failed to establish 

reversible error. Id. at 267.

[17] Here, Cheesman’s argument differs in two meaningful respects. First, rather 

than the personal waiver at issue in Martinez—and Horton for that matter—

Cheesman claims that waiver of the Sixth Amendment’s jury trial right must be 

“express and intelligent.” Appellant’s Brief at 10. And second, Cheesman 

makes no allegation that the trial court provided contradictory instructions and 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 10 of 15

instead alleges that her inaction—failing to file a timely demand for a jury 

trial—is insufficient to constitute an express waiver.

[18] We, of course, look to federal law regarding the efficacy of a waiver of a federal 

constitutional right. “The question of a waiver of a federal guaranteed 

constitutional right is . . . a federal question controlled by federal law.” 

Brookhart v. Janis, 384 U.S. 1, 4 (1966). “A waiver is ordinarily an intentional 

relinquishment or abandonment of a known right or privilege.” Johnson v. 

Zerbst, 304 U.S. 458, 464 (1938). And, when considering fundamental 

constitutional rights, like the right to trial by jury, we “indulge every reasonable 

presumption against waiver.” Id. Furthermore, we may not presume the 

waiver of a fundamental right from a silent record. Boykin v. Alabama, 395 U.S. 

238, 243 (1969); Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 

1985).

[19] Regarding the applicable standard for waiver, Cheesman relies on the United 

States Supreme Court’s language in Patton v. United States:

Trial by jury is the normal and, with occasional exceptions, the 

preferable mode of disposing of issues of fact in criminal cases 

above the grade of petty offenses. In such cases the value and 

appropriateness of jury trial have been established by long 

experience, and are not now to be denied. Not only must the 

right of the accused to a trial by a constitutional jury be jealously 

preserved, but the maintenance of the jury as a fact-finding body 

in criminal cases is of such importance and has such a place in 

our traditions, that, before any waiver can become effective, the 

consent of government counsel and the sanction of the court 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 11 of 15

must be had, in addition to the express and intelligent consent of the 

defendant.

281 U.S. at 312 (emphasis added).

4

 Cheesman also points to our supreme 

court’s statement in Horton that “[w]aiver of the Sixth Amendment jury trial 

right must be ‘express and intelligent,’ [citing Patton, 281 U.S. at 312].” 51 

N.E.3d at 1158. 

[20] In turn, the State attempts to distinguish the holding of Patton, arguing that the 

court was presented with a narrow question regarding whether a defendant 

could consent to an eleven-person jury, not whether a defendant could waive 

the right to trial by jury altogether. Therefore, the State argues, “the Court’s 

statement was dictum,” because there was no question that the parties had 

consented to the jury. Brief of Appellee at 8. And, in support thereof, the State 

offers two examples of Justices referring to the relevant language from Patton as 

dictum: 

Gonzalez v. United States, 553 U.S. 242, 255 n.1 (2008) (Scalia, J., 

concurring) (noting that the statement “was dictum; the Patton

defendants had all agreed to the waiver”) (internal quotation 

marks and citations omitted); id. at 267 (Thomas, J., dissenting) 

(“The [Patton] Court stated in dicta that the express and 

 

4 Although not cited by Cheesman, the Court later explained in Adams v. U.S. ex rel. McCann, 

We have already held that one charged with a serious federal crime may dispense with his 

Constitutional right to jury trial, where this action is taken with his express, intelligent consent, 

where the Government also consents, and where such action is approved by the responsible 

judgment of the trial court. 

317 U.S. 269, 277-78 (1942). 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 12 of 15

intelligent consent of the defendant is required before any waiver 

[of the right to a jury trial] can become effective.”) (internal 

quotation marks and citation omitted).

Id. Instead of the “express and intelligent” standard of waiver advanced by 

Cheesman, the State asserts that the applicable standard is found in Brady v. 

United States, where the Court held that “[w]aivers of constitutional rights not 

only must be voluntary but must be knowing, intelligent acts done with

sufficient awareness of the relevant circumstances and likely consequences.” 

397 U.S. 742, 748 (1970). However, because we find the record sufficient to 

support either, we need not decide exactly which standard is necessary to satisfy 

the Sixth Amendment. See Jean-Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017) 

(noting “our longstanding principle of constitutional avoidance”). 

[21] Here, at her initial hearing and with the benefit of counsel, Cheesman signed an 

Acknowledgement of Rights form explaining that:

4. (For Misdemeanor cases only) If you wish to exercise your 

right to trial by jury, you must file a written demand for a jury 

trial. You must file this written demand no later than ten (10) days 

before your first scheduled trial date. If you fail to file a written 

demand, or if you file a written demand but you file it late, you 

give up your jury trial right, permanently. If you give up your 

jury trial right, you will have no say about whether it will be a 

jury or a judge who hears the evidence at your trial and 

determines whether the State of Indiana proves your guilt beyond 

a reasonable doubt. 

Appellant’s App., Vol. II at 14 (emphasis added). Thus, Cheesman was clearly 

advised of her jury trial right and the consequences of failing to make a timely 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 13 of 15

demand. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App. 2012) 

(noting that a jury trial waiver is not valid unless the trial court advises a 

defendant of the consequences of his failure to demand a jury trial no later than 

ten days prior to the trial date). 

[22] After being clearly advised of the consequences thereof, Cheesman failed to file 

a demand for a jury trial until nearly four months after the deadline. As we 

have previously explained, “[t]he right to a jury trial in misdemeanor cases is 

not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22.” 

Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013). And, in Greene v. 

State, we held that:

a defendant charged with a misdemeanor who fails to make a 

timely request waives the right to trial by jury if he has been 

advised in a timely manner of both the right to jury trial and the 

consequences of failing to make a timely demand. The 

defendant’s waiver, however, must be voluntary, knowing, 

intelligent, and personal. 

670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (citations omitted), trans. denied; but see 

Martinez, 82 N.E.3d at 265 (holding that personal waiver of the jury trial right is 

not required). “Thus, when charged with a misdemeanor, a defendant can 

waive her right to a jury trial by failing to make a timely demand for trial by 

jury.” Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). 

[23] To the extent Cheesman now argues that she never “expressly” waived her 

Sixth Amendment trial by jury right, her argument leaves us unconvinced. 

Although Cheesman explains the meaning of “express” as “clearly and 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 14 of 15

unmistakably stated[,]” Appellant’s Br. at 10 (quoting Daubert v. NRA Group, 

LLC, 861 F.3d 382, 389 (3rd Cir. 2017)), she fails to apply the standard to the 

facts presented here by explaining how exactly her actions were constitutionally 

inadequate, or what exactly is necessary to expressly waive her Sixth 

Amendment trial by jury right. The Seventh Circuit explained:

the sole constitutional requirement is that the waiver be 

voluntary, knowing, and intelligent. The colloquy and the 

written waiver serve to document these qualities, but a jury 

waiver may be valid despite their absence. So long as the 

defendant had a “concrete understanding” of his right to a jury 

trial, his waiver is valid. 

U.S. v. Williams, 559 F.3d 607, 610 (7th Cir. 2009), cert. denied, 558 U.S. 1147 

(2010) (citations omitted). 

[24] Here, it is undisputed that Cheesman had a “concrete understanding” of her 

right to a jury trial; she signed a form clearly advising her of such right and 

warning her of the procedural effects of Criminal Rule 22. Thus, Cheesman 

was aware of what she had to do and when she had to do it—she simply did not 

follow proper procedure. Moreover, we note that the specific language from 

Patton states that waiver requires the “express and intelligent consent of the 

defendant.” 281 U.S. at 312. We view Cheesman’s signature on the 

Acknowledgement of Rights form and her subsequent failure to file a demand 

for a jury trial as reflecting her express and intelligent consent—especially 

considering that she now offers no argument to the contrary. Therefore, we 
Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018 Page 15 of 15

conclude Cheesman effectively waived her right to a jury trial pursuant to the 

Sixth Amendment. 

Conclusion

[25] In light of Cheesman’s advisement of her right to jury trial, her 

acknowledgment thereof, and her failure to request a jury trial within the time 

period allotted by Criminal Rule 22, we conclude Cheesman effectively waived 

her right to a jury trial pursuant to the Sixth Amendment. 

[26] Affirmed. 

Vaidik, C.J., and Altice, J., concur.