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No evidence that missed deadline was result of ineffective attorney

September 30, 2013

A Boone County man’s failed attempt to get a jury trial was not the result of ineffective counsel but because he missed the statutory deadline, the Indiana Court of Appeals ruled.

Paul J. Livers II appealed his convictions for battery causing bodily injury, a Class B misdemeanor, and interference with reporting a crime, a Class A misdemeanor, arguing that he was denied effective assistance of counsel at trial because his counsel failed to  file a timely motion for a jury trial.

In Paul J. Livers, II v. State of Indiana, 06A01-1303-CR-119, the Court of Appeals affirmed Livers’ convictions, concluding he failed to demonstrate he was denied effective assistance of counsel.  

Defendants in misdemeanor cases must request a jury trial no later than 10 days before the first trial date. Livers received notice on Aug. 15, 2012, that his bench trial was scheduled for Oct. 17, 2012.

On Oct. 17, Livers requested a continuance and the bench trial was rescheduled to Dec. 19, 2012. Then, on Oct. 26, he made his demand for a jury trial, a motion the trial court rejected as untimely.

Livers made a direct appeal, relying only upon the trial record.

“We conclude that the record is insufficient to evaluate Livers’ ineffective assistance of counsel claim on direct appeal,” Judge Patricia Riley wrote for the court. “This court has no testimony from trial counsel which might explain her conduct. Nor is that any indication in the record that Livers wanted a jury trial prior to his counsel’s belated request.”

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