State v. Smith

                                      272

  Argued and submitted August 1, reversed and remanded October 30, 2019


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      TODD JAMES SMITH,
                          aka Todd Smith,
                       Defendant-Appellant.
                    Marion County Circuit Court
                       16CR82663; A166724
                                  

    Defendant appeals judgments of conviction for four misdemeanor crimes. On
appeal, defendant contends that the trial court erred by conducting a bench trial
and convicting him of the charges without a written jury waiver specific to those
counts. Defendant argues that the written jury waiver he signed was ineffective for the charges for which he was convicted because, while the case number
remained the same, two amended informations were filed after he signed the jury
waiver that dismissed the original charge and added new charges. Defendant
acknowledges that he did not preserve his claim of error, but he contends that
the error is plain. The state argues that there is no plain error because defendant’s signature on a written jury waiver with the same case number as that
under which he was ultimately convicted gives rise to competing inferences about
whether defendant intended to waive his right to a jury trial. Held: A written
jury waiver is plainly only effective with respect to charges made known to the
defendant at the time of the waiver. Accordingly, the trial court erred when it
conducted a bench trial on charges for which defendant had not executed a written jury waiver.
    Reversed and remanded.



    Claudia M. Burton, Judge.
   Anna Belais, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
Cite as 

 (2019)   273

  HADLOCK, P. J.
  Reversed and remanded.
274                                                         State v. Smith

           HADLOCK, P. J.
         Defendant appeals a judgment of conviction for two
counts of stalking, one count of first-degree criminal trespass, and one count of second-degree criminal trespass.1
Defendant contends that the trial court erred by conducting a bench trial and convicting him of the charges without
a written jury waiver specific to those counts. Defendant
acknowledges that he did not object at the time, but he
argues on appeal that the error is plain. We agree that the
trial court plainly erred in conducting a bench trial without a written jury waiver for the charges for which defendant was tried and convicted. Accordingly, we reverse and
remand.
         The relevant facts are procedural and undisputed.
On December 30, 2016, the state charged defendant in case
number 16CR82663 with one count of second-degree criminal trespass. On June 5, 2017, defendant signed a written
waiver of his right to a jury trial in that case. The waiver
informed defendant that he had “the right to a jury trial
on any fact … [about] the criminal activity alleged in
this case.” Defendant checked the box marked “I WAIVE
my right to have a jury decide whether I am guilty or not
guilty of the crime(s) charged and any facts which can result
in a greater sentence than is presumed.” A hearing on the
waiver occurred the same day. Defendant confirmed to the
trial court orally that he understood he had the right to a
jury and wanted to waive it.
         Seven days after the hearing, the state filed an
amended information that charged defendant with harassment and second-degree disorderly conduct. The amended
information was filed with the same case number under
which the state had brought the original charge of second-degree criminal trespass, 16CR82663, but it did not include
that charge. Defendant was arraigned on the amended
information about two weeks later and, at the arraignment,
told the court that he wanted a jury trial. The court assured
defendant several times that he could have a jury trial if
    1
       The judgment also includes two counts of punitive contempt for which the
trial court imposed sanctions. Defendant does not challenge those contempt findings on appeal.
Cite as 

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he wanted one and also said, “you have previously waived
jury. But you always at all times … have the constitutional
right to have a jury try your case.” Defendant indicated his
understanding that, because the original charge for which
he waived jury trial had been dropped and different charges
added, his jury rights “will become new.” Defense counsel
told the court that he would discuss the matter with defendant and inform the court of how defendant wanted to proceed. No new written jury waiver was filed after that point,
and the record does not include any additional information
about whether defendant wished to waive his right to a jury
trial on the new charges.
         In October 2017, about four months after defendant
was arraigned on the amended information, the state filed
a second amended information that charged defendant with
two counts of stalking, one count of first-degree criminal
trespass, one count of second-degree criminal trespass,
and two counts of punitive contempt. One of the stalking
counts was alleged to have occurred in December 2016; the
remaining crimes were alleged to have occurred in August
or September 2017. Like the first amended information, the
second amended information was filed under case number
16CR82663 and did not include the single count of second-degree criminal trespass that had been charged in the original information. A bench trial took place in December 2017,
and the court found defendant guilty on all counts charged
in the second amended information.
         On appeal, defendant contends that the trial court
erred by conducting a bench trial and convicting him of the
charges in the second amended information in the absence
of a written jury waiver associated with those charges. He
bases that argument on Article I, section 11, of the Oregon
Constitution, which requires jury waivers to be in writing:
   “In all criminal prosecutions, the accused shall have the
   right to public trial by an impartial jury …; to demand
   the nature and cause of the accusation against him, and
   to have a copy thereof; … provided, however, that any
   accused person, in other than capital cases, and with the
   consent of the trial judge, may elect to waive trial by jury
   and consent to be tried by the judge of the court alone, such
   election to be in writing ….”
276                                                  State v. Smith

         Defendant acknowledges that he did not preserve
his claim of error in the trial below, but he argues that we
can review the Article I, section 11, error because it is plain.
In response, the state focuses on the undisputed fact that
defendant signed a jury waiver in case number 16CR82663
in June 2017, when only the original information had been
filed. Because the second amended information was filed
under that same case number and defendant never moved
to withdraw his earlier written jury waiver, the state contends that competing inferences arise about whether defendant intended that written waiver to cover the charges of
which he was subsequently convicted. Accordingly, the state
asserts, any error is not plain.
         The parties’ arguments implicate both general plain-error principles and principles that are unique to Article I,
section 11. In general, we may address an unpreserved
claim of error only if the trial court plainly erred. An error
is “plain” if
   “(1) the error is one of law, (2) the error is obvious, not reasonably in dispute, and (3) the error appears on … the
   record, so that we need not go outside the record to identify
   the error or choose between competing inferences, and the
   facts constituting the error are irrefutable.”
State v. Zolotoff, 

, 

 (2015).
          In most cases in which we determine that a trial
court has plainly erred, we have discretion whether to correct that error. See 

 (discussing factors that inform
our discretionary decision whether to correct plain error).
We have no such discretion when a trial court has plainly
erred by conducting a bench trial in the absence of a written
jury waiver. In such cases, we must correct the Article I,
section 11, error. State v. Barber, 

, 

 (2007). That distinction arises from the unique nature
of Article I, section 11: It does not just provide for a substantive right to a jury trial, it also “prescribes the only way in
which an accused person may waive” that right. 

 Thus,
a trial judge errs in “going to trial at all” without a written
jury waiver. 

 (emphasis in original).
        When it is undisputed that there is no written jury
waiver in the record of a case in which the defendant was
Cite as 

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tried to the court, the absence of such a waiver is reviewable
as plain error. State v. Herrington, 

, 

 (2016). When the record does include a written waiver,
and the parties dispute whether the waiver was effective for
the convictions a defendant challenges on appeal, the question before us on plain-error review is whether the record
allows competing inferences about the “defendant’s intent
when he signed the [document in the record].” State v. Akers,

, 

 (2008).
         In asserting that the record in this case allows
competing inferences regarding defendant’s intention in
signing the June 2017 jury waiver, the state relies on Akers
and on State v. Jeanty, 

, 

 (2009),
rev den, 

 (2010). In Akers, the defendant signed
a petition to enter into a drug court program. 

. In exchange for participation in the program, the
petition required the defendant to make several stipulations and waivers, including stipulating to the underlying
criminal charges and waiving his right to a jury trial; each
paragraph of the petition described a stipulation or waiver
and included an area for the defendant to initial. 

. The defendant did not fully complete the petition
form: he failed to initial several of the paragraphs in the
document, but he did sign the conclusion line of the petition, which indicated that he understood the agreement
and was voluntarily giving up the rights indicated by it.

. On appeal, the defendant argued that, because
he did not initial the paragraph that waived his right to
a jury trial, he did not effectively waive that right. 

. We rejected that argument, concluding that the defendant’s signature at the bottom of the petition, combined
with his lack of initialing some of the specific paragraphs,
led to competing inferences about the defendant’s intention
to waive his right to a jury trial. 

. We concluded
that the defendant’s actions could give rise to the inference
either that he intentionally did not initial the provisions
waiving his right to a jury (in an effort to preserve that
right) or that he inadvertently missed the spaces for his
initials and did intend to waive his right. 

. Because
the record allowed those competing inferences, no error
was plain. 

278                                             State v. Smith

         In Jeanty, we concluded for similar reasons that the
trial court did not plainly err in conducting a bench trial
after the defendant signed—but did not fully complete—a
jury-waiver form. The jury-waiver form in Jeanty provided
the defendant with two options: He could check one box indicating that he wanted to waive his right to a jury to determine both whether he was guilty of the crime charged and
for any sentence enhancements, or he could check another
box indicating that he wanted to waive his right to a jury
only for sentence enhancements. Jeanty, 

.
The defendant signed the form without checking either
box. 

 Before beginning a bench trial, the judge asked the
defendant to confirm that his signature on the document
indicated that he wanted to waive his right to a jury, and
the defendant agreed. 

. As in Akers, we determined that competing inferences existed about whether the
defendant intended to waive his right to a jury and inadvertently missed checking a box or whether the defendant’s
failure to check a box indicated his intention not to waive
his right to a jury trial. 

. Because of those competing inferences, we found that no error was plain. 

.
         We reached a different result in Herrington. In
that case, the defendant submitted a signed form labeled
“ELECTION TO WAIVE A JURY OF TWELVE,” a form
that waived the defendant’s right to twelve jurors and
allowed his case to be tried by a six-member jury instead.

 (uppercase in original). The record contained no written waiver of the defendant’s right to a jury
of six; however, the trial court “mistakenly referred to the
form as ‘an election to waive a jury’ … [and the defendant]
never challenged the lack of a written jury waiver at trial.”

 Additionally, “through a colloquy with the trial court,
[the defendant] appeared to waive a jury trial entirely.”

. We determined that the defendant’s actions did
not lead to competing inferences about his intent to waive
his right to a jury trial entirely and to be tried by the court;
the record included no indication that defendant had signed
a document intending to waive that right. 

 Additionally,
the defendant’s oral statements to the trial court were “not
relevant to our waiver analysis … because [the] defendant
Cite as 

 (2019)                               279

had a substantive constitutional right to a jury trial that
only could be waived in writing.” 

 (emphasis in original).
         Akers and Jeanty stand for this proposition: If a
defendant signs a form indicating that the defendant wishes
to waive the right to a jury trial on certain charges and,
instead, be tried by the court, the defendant’s failure to complete some portion of the form may (at least in certain circumstances) allow competing inferences about whether the
defendant’s signature reflects his or her intention to waive
the jury right. In such cases, no Article I, section 11, error is
plain on the record because one reasonable inference is that
the defendant did intentionally waive the jury right in writing, even if he or she inadvertently did not check or initial
certain boxes on the form in a way that would have reflected
that intention more completely. Herrington illustrates the
converse situation, where plain error exists because the
record does not include any writing that could give rise to
an inference that the defendant intended to waive his right
to a jury.
         Here, in contrast with Jeanty and Akers and similarly to Herrington, there is no way to “reasonably infer
from the text of defendant’s written waiver that defendant
intended to waive his Article I, section 11, right” for the
charges on which he was tried and convicted. Herrington,

. Defendant’s waiver was dated June 5,
2017, and it expressly referred to the “crime(s) charged,”
which at that time included only a charge of second-degree
criminal trespass—a charge that was later dropped. One
cannot reasonably infer from defendant’s signature on that
June 2017 waiver that he intended to waive his right to a
jury trial for crimes with which he had not yet been charged,
including offenses for which the alleged underlying conduct
had not yet occurred.
        The latter point is worth emphasizing. Article I,
section 11, gives a defendant both the right to a jury trial
and the right to know the “nature and cause” of the charge
against him. The jury right necessarily is associated with
the charges that are made known to the defendant, and the
defendant’s waiver of the jury right can be effective only
with respect to those charges. Where, as here, new charges
280                                           State v. Smith

are brought against a defendant after the defendant has
already signed a jury waiver specific to a different charge,
that waiver plainly is not effective with respect to the added
charges.
        Having determined that the trial court plainly erred
by conducting a bench trial on charges for which defendant
had not executed a written jury waiver, we must correct the
error. Barber, 

. Accordingly, we reverse and
remand.
        Reversed and remanded.