Frank E. Puzynski v. State of Indiana (mem. dec.), 71A04-1611-CR-2511

On Feb. 23, 2015, a truck owned by Frank E. Puzynski struck two parked cars in South Bend; a witness saw a light-skinned man run from the truck and police found the truck unoccupied with Puzynski’s phone inside still connected to the stereo.
Puzynski’s wife, Tina, initially reported the truck stolen from her Walmart workplace but later admitted she lied at Puzynski’s direction because he was a habitual traffic offender.
Puzynski gave inconsistent accounts to police (fictitious job address; claimed he was elsewhere); friends later corroborated his presence at their home, and phone records showed calls consistent with that account.
The State charged Puzynski with operating a motor vehicle while privileges are forfeited for life (Level 5 felony) and failure to remain at the scene (Class B misdemeanor); he waived a jury and had a bench trial.
The trial court found him guilty and sentenced him to six years executed.
On appeal, Puzynski argued the trial court committed fundamental error by failing to advise him of his right to testify; he did not raise the issue at trial, so review is for fundamental error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court committed fundamental error by not advising a represented defendant of his right to testify	State: No fundamental error; no duty breached when defendant is represented by counsel	Puzynski: Trial court had an affirmative duty to inform/confirm his right to testify; failure prejudiced him	Court held no fundamental error: courts may presume counsel discussed right to testify; no affirmative duty to ensure a represented defendant knowingly waived that right

United States v. Dunnigan, 507 U.S. 87 (1993) (recognizes right to testify as constitutionally implicit)
Baxter v. State, 522 N.E.2d 362 (Ind. 1988) (right to testify guaranteed by Sixth Amendment and Indiana Constitution)
Phillips v. State, 673 N.E.2d 1200 (Ind. 1996) (trial court may presume counsel and client discussed testifying; no affirmative duty to ensure waiver)
Correll v. State, 639 N.E.2d 677 (Ind. Ct. App. 1994) (no affirmative duty on trial judge to ensure a counseled defendant knowingly waived right to testify)
Vanzandt v. State, 730 N.E.2d 721 (Ind. Ct. App. 2000) (same principle affirmed)
Dickerson v. State, 957 N.E.2d 1055 (Ind. Ct. App. 2011) (fundamental error doctrine limited to egregious circumstances)
Akard v. State, 924 N.E.2d 202 (Ind. Ct. App. 2010) (to show fundamental error defendant must show actual and substantial disadvantage)
Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007) (mere prejudicial error insufficient for fundamental error)