Richard Barber v. State of Indiana (mem. dec.), 49A05-1608-CR-1847

In the early hours of Jan. 1, 2015, officers found Richard Barber unconscious behind the wheel; they smelled alcohol and marijuana and observed indicia of intoxication. Barber was arrested.
During search, officers found ~34 grams of marijuana plus a small baggie and a digital scale; an empty alcohol bottle was observed in the vehicle.
The State charged Barber with OWVI (seeking felony elevation based on a prior OVWI), possession of marijuana (Class B misdemeanor), and alleged habitual vehicular substance offender (HVSO) status.
At trial Barber was convicted by a jury of possession and OWVI (as a Class A misdemeanor). Before and after the jury verdict defense counsel stated they would stipulate to prior convictions and waived further jury phases, but Barber never personally communicated a waiver.
The trial court accepted the stipulation/waiver and conducted bench proceedings on the felony elevation and habitual-offender adjudication; Barber was sentenced to an aggregate 7.5 years.
On appeal Barber argued his constitutional right to a jury trial was not personally waived; the State argued the error was invited and that the stipulation was sufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Barber validly waived his right to a jury trial for the OVWI felony elevation and HVSO phase	State: waiver was effectively made via defense counsel’s stipulation and counsel’s statements	Barber: no personal, on-the-record waiver by defendant as required by statute and precedent	Court: No valid personal waiver; defendant must personally communicate waiver; reversal of felony elevation and HVSO adjudication and remand for new trial
Whether the error was invited by defense counsel’s stipulation	State: Barber invited the error by stipulating as a strategic sentencing move	Barber: stipulation alone cannot substitute for the defendant’s personal waiver; counsel’s actions do not constitute personal waiver	Court: Not invited error; stipulation did not eliminate need for defendant’s personal waiver
Whether the stipulation was sufficiently specific to support felony elevation and HVSO	State: stipulation established prior OVWI and HVSO qualification	Barber: stipulation lacked detail and thus was insufficient	Court: Stipulation, though not artfully phrased, was sufficient for a reasonable factfinder; sufficiency challenge denied

Horton v. State, 51 N.E.3d 1154 (Ind. 2016) (defendant, not defense counsel, must personally waive jury trial)
Kellems v. State, 849 N.E.2d 1110 (Ind. 2006) (statutory right to jury trial and personal-waiver rule explained)
Brewington v. State, 7 N.E.3d 946 (Ind. 2014) (doctrine of invited error may bar review even for fundamental error)
Wright v. State, 828 N.E.2d 904 (Ind. 2005) (invited-error jurisprudence cited)
Bunting v. State, 854 N.E.2d 921 (Ind. Ct. App. 2006) (distinguished; defendant personally admitted prior conviction in open court)
Stewart v. Alunday, 53 N.E.3d 562 (Ind. Ct. App. 2016) (distinction between evidentiary and judicial admissions)
Griffith v. State, 59 N.E.3d 947 (Ind. 2016) (standard for sufficiency of the evidence)