Crone v. Commonwealth
680 S.W.2d 138
Ky. Ct. App.
1984
Check Treatment
HOWARD, Judge.

Appellant appeals his convictions for driving under the influence and no operator’s license.

On October 21,1982, the appellant, Glenn J. Crone, was arrested by the Dixie Police Authority for reckless driving, driving under the influence, and no operator’s license. Appellant was brought to trial the same day in the Kenton District Court, at which time he requested a cоntinuance to secure counsel. The trial was thereafter postponed to November 2, 1982.

*139During this period, the appellant left town on employment obligations. On November 2, the appellant informed the court that initial contаct with counsel had been made but final arrangements were lacking due to the work obligations. He requested another continuance. The trial court denied the request and informed the appellant ‍​​​‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‍that trial would be held that night. Counsel fоr the appellant arrived before trial and presented a handwritten motion for a jury trial. This motion was denied. Trial was held a short time thereafter. Prior to the calling of the first witness, appellant objected to the proceedings, alleging a denial of constitutional rights.

During the course of the prosecution’s case, no proof of the appellant’s prior convictions was offered. The appellant did not testify. After the close of the evidencе, the trial court read, over appellant’s objections, the driving history of the appellant into the record.

The trial court sentenced the appellant to six months’ imprisonment and a $500.00 fine for driving under the influence of intoxicants, and to six months’ concurrent imprisonment and $100.00 fine for no operator’s license. The appellant thereafter аppealed to the Kenton Circuit Court, which affirmed his convictions. This appeal is now before us upon discretionary review.

Appellant assigns three errors to the proceedings in district court: First, he contends that his request for cоntinuance on November 2, 1982, was erroneously denied; that it was improper for the trial court to deny ‍​​​‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‍his motion for jury trial; аnd that his sentence was wrongfully enhanced due to an absence of proof of prior convictions for driving under thе influence. We believe the jury trial issue resolves this appeal.

The right of trial by jury for a defendant is recognized in Seсtion 7 of the Kentucky Constitution, and is further codified in KRS 29A.270(1), which states:

Defendants shall have the right to a jury trial in all criminal prosecutions, including prosecutions for violations of traffic laws, in the circuit and district courts. The defendant may request a jury trial аt any time prior to the time his case is called for trial.

However, it has also been established that an ‍​​​‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‍accused can waive his right to a jury trial. Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975). The prerequisites of a valid waiver of a jury trial in a felony or misdemeanor case were described in Short, adopting the language of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930):

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit tо trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect аt all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of pеtty offenses. In such cases the value and appropriateness of jury trial have been established by long expеrience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jeаlously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and hаs such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the dеfendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discrеtion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

The Commonwealth herein contends that the appellant failed to request a jury trial prior to his case ‍​​​‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‍being called, аnd thus waived a jury trial pursuant to KRS 29A.270(1). We have a number of difficul*140ties with this argument. First, the record does not clearly indicate when the appellant’s motion for jury trial was presented. Both parties state that the motion was made before the trial actually began, but it would be splitting hairs to decide if such motion was made before the case was “called.” In any event, we do not believe that KRS 29A.270(1) sets a time after which a defendant is automatically precluded from exercising his right tо a jury trial. The statute merely provides that a defendant can request a jury trial at any time before trial. We refrain from adding or inferring anything more from the statute than its procedural guide.

However, we believe the strongest flaw in the Commonwеalth’s argument to be presented by Short, supra. The record here does not indicate in any manner that the appellant ‍​​​‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​‌‌​​‌​​​‌​‌‌‌‌‌​‍wаived his right to a jury trial in the manner provided in Short:

In determining whether a waiver of a jury trial is made understandingly, intelligently, competently, аnd voluntarily, the court must apply the same standards that are required on the acceptance of a guilty plеa. The record made at the hearing preceding the acceptance of a. waiver by the court must аffirmatively set out facts which will permit an independent determination of its validity. Cf. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Raymer v. Commonwealth, Ky., 489 S.W.2d 831 (1973); Lucas v. Commonwealth, Ky., 465 S.W.2d 267 (1971); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

As such, we find that the appellant was entitled to a jury trial pursuant to his request, and it was error for the Kenton District Court to deny the jury trial. Since this will result in a new trial, we do not deem it necessary to reach the merits of the remaining issues on appeal.

The judgment is reversed and remanded for proceedings consistent with this opinion.

All concur.