STATE OF OHIO v. NICOLETTE E. BELL
Appellate Case No. 2017-CA-8
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
September 8, 2017
2017-Ohio-7512
Trial Court Case No. 2015-CR-723 (Criminal Appeal from Common Pleas Court)
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor‘s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant
OPINION
WELBAUM, J.
Facts and Course of Proceedings
{2} On December 7, 2015, the Greene County Grand Jury returned an indictment charging Bell with one count of felonious assault in violation of
{3} Three days before trial, on October 7, 2016, Bell‘s counsel filed a “Motion to Withdraw Jury Demand” signed by Bell that stated: “Now comes the Defendant, by and through counsel, and hereby withdraws her Jury Demand filed herein.” Motion to Withdraw Jury Demand (Oct. 7, 2016), Greene County Court of Common Pleas Case No.
{4} Following the bench trial, the trial court found Bell guilty as charged. The trial court then sentenced Bell to four years in prison for felonious assault and twelve months in prison for abduction. The trial court did not impose a prison term for the misdemeanor assault. The prison sentences for felonious assault and abduction were ordered to run concurrently for a total prison term of four years.
{5} Bell now appeals from her conviction, raising three assignments of error for review.
First Assignment of Error
{6} Bell‘s First Assignment of Error is as follows:
THE TRIAL COURT LACKED JURISDICTION TO TRY BELL WITHOUT A JURY.
{7} Under her First Assignment of Error, Bell contends that the trial court lacked jurisdiction to conduct a bench trial because she did not validly waive her right to a jury trial. Bell claims that her waiver was invalid because it did not strictly comply with the requirements set forth in
{8}
In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: “I __________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.”
Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial.
{9} Based on this statute, the Supreme Court of Ohio has identified five conditions that must be satisfied in order for a jury waiver to be valid. Lomax at 9. The jury waiver must be: “(1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open court.” Id. Trial courts must strictly comply with these requirements. State v. Grier, 2d Dist. Montgomery No. 23662, 2010-Ohio-5751, 15, citing State v. Pless, 74 Ohio St.3d 333, 337 and 339, 658 N.E.2d 766 (1996). (Other citation omitted.) “In the absence of strict compliance with
{10} While there must be strict compliance with the five conditions in
{11} ” ‘To satisfy the “in open court” requirement in
{12}
In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.
{13} We note that the language of
{14} The State concedes that this is a “serious offense case” because it involves serious offenses, including felonious assault and abduction, which are second and third-degree felonies that carry prison terms greater than six months.
{15} After a thorough review of the record, we find that the jury-waiver requirements in
{16} The attempted jury waiver was also never made in open court. The only reference to the jury waiver in open court was the following discussion between the trial court and defense counsel:
| THE COURT: | Let the record reflect that we‘re here today for a trial to the bench, also known as to the Court, with the Defendant having withdrawn their demand for jury trial. Now is that a correct statement Mr. Wilcoxson? |
| DEFENSE COUNSEL: | That is correct Your Honor. |
| THE COURT: | Very good. *** |
Trial Trans. (Oct. 10, 2016), p. 1-2.
{17} During the foregoing discussion, Bell never acknowledged the jury waiver to the trial court, as the trial court never personally addressed her. Rather, the trial court simply confirmed with defense counsel that Bell had withdrawn her “demand for a jury trial.” We note that a jury demand was never actually filed and was unnecessary given that this is a “serious offense case” for which Bell was entitled to a jury trial regardless of whether a jury demand was made.
{18} In addition to failing to comply with the requirements of
{19} Finally, we note that ” ‘[t]he fact that [Bell] did not object to the trial court proceeding with a bench trial is of no matter. Silent acquiescence to a bench trial is not sufficient to constitute a waiver of a defendant‘s right to a jury trial.’ ” Grier, 2d Dist. Montgomery No. 23662, 2010-Ohio-5751 at 15, quoting Tate, 59 Ohio St.2d at 53, 391 N.E.2d 738.
{20} For the foregoing reasons, we conclude that Bell did not validly waive her right to a jury trial as prescribed by
{21} Bell‘s First Assignment of Error is sustained.
Second and Third Assignments of Error
{22} Bell‘s Second and Third Assignments of Error are as follows:
II. THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO SUSTAIN BELL‘S CONVICTIONS AND BELL‘S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. BELL‘S CONVICTION FOR ABDUCTION SHOULD HAVE MERGED WITH HER CONVICTION FOR FELONIOUS ASSAULT.
{23} In light of our disposition on Bell‘s First Assignment of Error, her Second and Third Assignments of Error are rendered moot and are overruled on that basis.
Conclusion
{24} Having sustained Bell‘s First Assignment of Error, the judgment of the trial court is reversed and the matter is remanded for a new trial.
HALL, P.J. and TUCKER, J., concur.
Copies mailed to:
Nathaniel R. Luken
Ben M. Swift
Hon. Michael A. Buckwalter