State of Ohio v. Stacey Graham
Court of Appeals No. WD-18-017
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
December 14, 2018
2018-Ohio-5003
Trial Court No. 2017CR0134
Nathan T. Oswald, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas which, following a bench trial, found appellant guilty of one count of burglary and sentenced him to a prison term of 36 months to be served consecutively to an 18-month sentence imposed by the Sandusky County Court of Common Pleas in case No.
{¶ 2} On April 20, 2017, appellant Stacey Graham was indicted by a Wood County Grand Jury on the charge of burglary, a violation of
{¶ 3} After a period of discovery and pretrial hearings, a bench trial commenced on December 20, 2017. At the conclusion of the prosecution‘s case, appellant moved for a judgment of acquittal pursuant to
{¶ 4} Following appellant‘s conviction, on February 2, 2018, the trial court sentenced appellant to serve а 36-month prison term to run consecutively to an 18-month sentence imposed by the Sandusky County Court of Common Pleas in case No. 16CR1168. Among the findings made by the trial court in determining the sentence was appellant‘s 27-year criminal history involving multiplе violations of community control and multiple convictions for theft-related offenses. Prior to March 2, 2017, appellant had been barred from Walmart “after previous thefts from that institution [committed] for the sole purpose of committing a theft in this business.” In addition, at the time of
{¶ 5} It is from the trial court‘s February 6, 2018 journalized sentencing judgment entry which appellant filed his appeal on March 6, 2018, setting forth four assignments of error:
I. The trial court wrongly denied Appellant‘s motion for judgmеnt of acquittal pursuant to
Crim.R. 29 , because the evidence was insufficient to find that he trespassed at Wal-Mart by force, stealth, or deception.II. The trial court wrongly convicted Appellant of burglary because the evidence was insufficient to find that he trespassed by force, stealth, or deception [where:] (a) [t]he evidence is insufficient to find that [Appellant] trespassed by deception or stealth, and (b) [t]here was insufficient evidence at trial to find that [Appellant] trespassed at Wal-Mart by force when he walked through open, public access doors.
III. The trial court lacked jurisdiction to conduct a trial to the court because Appellant did not effectively waive his right to a jury trial.
IV. The record clearly and convincingly fails to support the imposition of the maximum sentence on [Appellant].
{¶ 6} We will first address appellant‘s third assignment of error, which is dispositive.
{¶ 7} In support of his third assignment of error, appellant argued the trial court failed to strictly comply with
{¶ 8} In response, appellee conceded the trial court failed to properly obtain appellant‘s waiver of his right to a jury trial.
{¶ 9} We review an appellant‘s right to a jury trial de novo, as it is a question of law. See State v. Lear, 6th Dist. Lucas No. L-17-1261, 2018-Ohio-1874, ¶ 10.
{¶ 10} “The accused‘s right to be tried by a jury is secured in this state by Section 10, Article I of the Ohio Constitution and
{¶ 11}
(A) At any trial, in any court, for the violation of any statute of this state * * *, the accused has the right to be tried by a jury.
(B) The right to be tried by a jury that is granted under division (A) of this section does not apply to a violation of a statute or ordinance that is any of the following:
(1) A violation that is a minor misdemeanor;
(2) A violation for which the potential penalty does not include the possibility of a prison term or jail term and for which the possible fine dоes not exceed one thousand dollars.
{¶ 12} Appellant‘s violation of
{¶ 13} Appellant, however, had the right to waive his right to be tried by a jury.
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.
{¶ 15} Under
{¶ 16}
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 а 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.
{¶ 17} “Therefore, to be valid, a waiver must meet five conditions. It must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open court.” Lomax at ¶ 9.
{¶ 18} We reviewed the record before us. It is undisputеd by the parties the record does not contain a written jury trial waiver signed by appellant. Although
{¶ 19} The first mention of a jury trial waiver by appellant is in the trial court‘s order journalized on August 30, 2017, which states in part, “Upon request of counsel, IT IS ORDERED that his matter is hereby scheduled for a Court Trial on October 31, 2017 at 9:00 a.m. in Courtroom One of the Wood County Common Pleas Court.” (Emphasis sic.)
{¶ 20} The second mention of a jury trial waiver by appellant is in the transcript of the bench trial held on December 20, 2017. Prior to the parties’ opening statements, the trial court оpened the proceedings with the following:
Court: Thank you. You may be seated, please. This is the State of Ohio v Stacey Graham, 2017-CR-134. It comes before the court today for a court trial. Present in the courtroom is David Romaker on behalf of the State of Ohio, William Stephenson on behalf of the defendant. You are Stacey Graham; is that correct?
A: Yes, sir. I am.
Court: I also note that Reid Rothsenbuhler is also present, representing the defendant. We are set for court trial today, the defendant having previously waived his right to a jury trial. Are counsеl ready to proceed?
Mr. Stephenson: Yes.
Mr. Romaker: The state is, yes.
{¶ 21} The trial transcript shows appellant, appellant‘s counsel, the prosecuting attorney, and the trial judge all tacitly consented to proceeding with a bench trial without objection. Hоwever, as raised in this appeal, whether or not appellant effectively waived his right to a jury trial is reviewed for plain error. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 15 (typically plain error review occurs where “if a party forfeits an objection in the trial court.“); State v. Riggins, 2017-Ohio-80, 80 N.E.3d 1156, ¶ 6 (9th Dist.) (plain error standard applies where defendant “did not object when the court held a bench trial in the absence of a valid jury waiver.“).
{¶ 22} “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
{¶ 23} Strict compliance with the clear and unаmbiguous requirements of
{¶ 24} We find the trial court committed plаin error when it proceeded with a bench trial in this matter. First, there was an error that deviated from the legal rule vesting appellant with the right to a jury trial. Second, the error was plain because it was obvious. The record does not contain a filed, written waiver signed by appellant and made in open court. The trial court‘s two mentions of appellant‘s jury trial waiver cannot substitute for the foregoing requirements. An effective waiver cannot be presumed by appellant‘s silence, where every reasonable presumption should be made against a waiver “‘when it relates to a right or privilege deemed so valuable as to be secured by the Constitution.‘” Tate at 53, quoting Simmons v. State, 75 Ohio St. 346, 352, 79 N.E. 555 (1906). Third, the error аffected appellant‘s substantial right to a jury trial. As a result, appellant is entitled to a new trial. Id. at 54.
{¶ 25} Appellant‘s third assignment of error is well-taken.
{¶ 26} Having found appellant‘s third assignment of error is well-taken, we find appellant‘s remaining assignments of error are moot.
{¶ 27} On consideration whereof, we find that substantial justice has not been done in this matter. The judgment of the Wood County Court of Common Pleas is reversed and the matter is remanded to the trial court for a new trial. Appellee is ordered to pay thе costs of this appeal pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
James D. Jensen, J.
JUDGE
Christine E. Mayle, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.