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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.

FILED
Feb 08 2008, 11:04 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARCE GONZALEZ, JR. Dyer, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT G. MILLER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A03-0705-CR-238

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-0503-FC-44

February 8, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Following a jury trial, Robert Miller was found guilty of Burglary1 as a class C felony and Theft2 as a class D felony and was also found to be a habitual offender. Miller raises the following restated issues: 1. Did Miller knowingly, voluntarily, and intelligently waive his right to a jury trial on the habitual offender charge? Did the trial court properly enter a separate sentence for the habitual offender finding?

2.

We affirm and remand. Miller was arrested for burglarizing several storage units at A to Z Storage in Crown Point, Indiana, and for stealing various items of property from the units. The State charged Miller with burglary as a class C felony and theft as a class D felony. It also alleged that Miller was a habitual offender. At Miller's jury trial, while the jury was deliberating, the following exchange occurred: BY THE COURT: I don't know obviously what the jury is going to decide, but if they return with a verdict of guilty you do have a right to have a jury trial on the habitual offender count. That choice is yours, and yours alone. If you want to exercise that right, we'll prepare the instructions for that possibility. You do have the right, however, to waive the jury trial on that issue; and then we would discharge the jury after the deliberations, and then you can either have the bench trial where the parties would submit the evidence to me, or you can admit the habitual offender status. At this point I just need to know if you wanted to exercise your right to a jury trial on the habitual offender count. BY THE DEFENDANT: What do you mean?

1

Ind. Code Ann.

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