Bex v. State
2011 Ind. App. LEXIS 1613
| Ind. Ct. App. | 2011Background
- Bex was convicted of operating while intoxicated endangering a person, a Class A misdemeanor.
- Trial began with six jurors; one juror suffered a medical emergency and no alternate was seated.
- The trial proceeded with five jurors after defense acknowledged the situation but then moved for mistrial, which was denied.
- The five-member jury returned a guilty verdict and Bex was sentenced to 360 days in jail with 350 days suspended and 80 hours of public restitution.
- Bex challenged the verdict on three grounds: (1) right to jury trial, (2) imposition of a public defender user fee without a payability finding, and (3) the appropriateness of the public restitution work component.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to a six-member jury waiver validity | Bex argues waiver by counsel to a five-member jury violated the Sixth Amendment. | Bex contends only a personal waiver suffices; six-member jury is constitutionally required. | Waiver by counsel to five jurors is constitutionally permissible. |
| Public defender fee without ability-to-pay finding | Indicates error in imposing fee absent indigence review. | Imposition proper as a probation condition; indigence status unchanged at sentencing. | No abuse; fee could be imposed as a probation condition without immediate ability-to-pay finding. |
| Public restitution work as sentencing component | Restitution requirement is inappropriate given offender and offense. | Restitution fits the offense and offender profile; within trial court discretion. | Sentence to perform eighty hours of public restitution affirmed. |
Key Cases Cited
- Williams v. Florida, 399 U.S. 78 (U.S. 1970) (Sixteen-member history; six-member jury not constitutionally mandated; states may use smaller juries.)
- Ballew v. Georgia, 435 U.S. 223 (U.S. 1978) (Five-member juries raise concerns; not per se unconstitutional, but generally disfavored.)
- Blair v. State, 698 So.2d 1210 (Fla. 1997) (Affirmed personal waiver of a six-member jury with sufficient on-record understanding.)
- Patton v. United States, 281 U.S. 276 (U.S. 1930) (Waiver of a twelve-member jury to eleven requires informed, counsel-consulted process.)
- Smith v. State, 176 Ind.App. 37, 373 N.E.2d 1112 (Ind. App. 1978) (Valid waiver of twelve-member jury when defendant consents with counsel and record.)
- Holliness v. State, 467 N.E.2d 4 (Ind. 1984) (Waiver to eleven-member jury supported by record of agreement between parties.)
- Judy v. State, 470 N.E.2d 380 (Ind. Ct. App. 1984) (Counsel may bind defendant on non-fundamental trial procedures; jury size not inherently fundamental.)
- Banks v. State, 847 N.E.2d 1050 (Ind. Ct. App. 2006) (Indigent status at sentencing; improper without ability-to-pay finding for public defender fee.)
- Rich v. State, 890 N.E.2d 44 (Ind. Ct. App. 2008) (Probation-ordered reimbursement not prematurely due; no current ability-to-pay finding needed.)
- Kimbrough v. State, 911 N.E.2d 621 (Ind. Ct. App. 2009) (Reimbursement without current ability-to-pay finding admissible when due after executed sentence.)