No. 79-3 | Ohio | Jul 11, 1979
Lead Opinion
The issue presented by this appeal is whether appellant knoAvingly, intelligently and voluntarily waived his right to trial by jury.
The accused’s right to be tried by a jury is secured in this state by Section 10, Article I of the Ohio Constitution
Crim R. 23 (A) is such a rule. It provides, in pertinent part:
“In serious offense cases the defendant * * * may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. * * * In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demand's a jury trial. Such demand must be in writing * * *. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.”
Since the crime charged Avas a petty offense (see Crim. R. 2), appellant was required to, and did, timely file a written demand for a jury trial. However, the state contends that appellant subsequently waived this right he had previously preserved, by silently acquiescing to a trial to the court.
In affirming appellant’s conviction, the Court of Appeals accepted appellee’s contention that there was an implicit AvaiA7er. They stressed appellant’s intelligence, the awareness of both trial counsel and the observing attor
"While the circumstances of this cause could lead one to surmise that appellant was aware of the situation and possibly took advantage of it, we cannot accept the proposition that there was a waiver of, this right by silence.- To do so would not only conflict with years of constitutional precedent, it could well require this court to review the circumstances of all such similar cases t-o determine whether the conduct and! education of the accused and tire adequacy of his counsel would support such an implicit waiver in each instance. As was stated in Simmons v. State (1906), 75 Ohio St. 346, at paragraph two of the syllabus, ££-[s]ueh waiver must clearly and affirmatively appear upon the record, and it can not be assumed or implied by a reviewing court from the silence of ihe accused ® * ®.” Furthermore, £[e]very reasonable presumption should be made against-the waiver, especially when it relates to a right or privilege deemed so valuable as to be secured by the Constitution.’ Id., at page 352.
The problem of what constitutes an effective waiver of the right to a jury trial arises because, while Crim. E. 23(A) requires, in serious offense cases, that the waiver be in writing, it does not prescribe how the right is to be waived in petty offense cases, once it has been demanded. Fortunately, we can look to R. C. 2945.05 for assistance in remedying this -omission in-the rule. That statute provides, in part:
liIn 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.” (Emphasis added.)
Under the authority of Section 5(B), Article IV of the
Since R. C. 2945.05 was not complied with in this instance, appellant was denied his constitutional right to trial by jury.6 This is prejudicial error which requires us to reverse the conviction of the trial court and the judgment of the Court of Appeals affirming that conviction, and remand the cause to the Hamilton County Municipal Court for a new trial.
Judgment reversed and cause remanded.
This constitutional provision states, in relevant part:
“Except in * * * cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary * * *. In
“This statute provides:
“At any trial, in any court, for the violation of any statute of this state, or of any ordinance of any municipal corporation, except in cases in which the penalty involved does not exceed a fine of one hundred dollars, the accused has the right to be tried by a jury.”
This holding is not inconsistent with paragraph two of the syllabus in State v. Harris (1976), 48 Ohio St. 2d 351" court="Ohio" date_filed="1976-12-27" href="https://app.midpage.ai/document/state-v-harris-6755944?utm_source=webapp" opinion_id="6755944">48 Ohio St. 2d 351, wherein we found that a written waiver executed at the conclusion of the trial satisfied the requirements of Crim. R. 23(A). Presumably this procedure would also comply with R. C. 2945.05.
This section provides, in pertinent part, that “* * * [a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
Concurrence Opinion
concurring.
1 concur in the decision in this case, but feel compelled to make a few observations concerning the law that this court was compelled to apply even in light of the facts presented.
Justice Sweeney is correct in his conclusion that R. C.
However, under the facts as presented within thist case, and other similar circumstances where a definite waiver is shown by the knowing acts of the party, the law should reasonably allow a waiver to be effected in petty criminal cases. Here, the facts glaringly show that there was an obvious courtroom sandbagging perpetrated upon the trial judge by the defendant and his trial counsel.
Here, the record shows that the defendant is a man of above normal intelligence. He was represented by employed counsel, and the latter, when asked by the trial judge if the defendant rvas ready to proceed to trial, stated that he was ready and did not mention to the judge that he desired a jury trial. The trial proceeded and the defendant testified. Upon being found guilty of the offense charged, the defendant and his counsel had no comment to make to the court and, again, no mention of, or complaint about, proceeding without a jury.
It is my belief that, in order to avoid this type of situation in the future, prosecutors should make a more thorough review of the record lo determine the presence of a request for a jury. An even more appropriate permanent approach would be for the General Assembly to amend R. C. 2945.05 so that a waiver need only he in writing by one charged with a serious offense.