State v. Tate

¶1The issue presented by this appeal is whether appellant knoAvingly, intelligently and voluntarily waived his right to trial by jury.

¶2The accused’s right to be tried by a jury is secured in this state by Section 10, Article I of the Ohio Constitution2*52and R. 0. 2945.17.3 Since the potential, as well as the actual, penalty imposed for this misdemeanor violation was imprisonment, appellant Tate possessed this right. However, “ [t]he guarantee of a jury trial in criminal cases contained in the state and federal Constitutions is not an absolute and unrestricted right in Ohio with respect to misdemeanors, and a statute, ordinance, or authorized rule of court may validly condition the right to a jury trial in such a case on a written demand therefor … Mentor v. Giordano (1967), 9 Ohio St. 2d 140, paragraph one of the syllabus. Such a rule is “not in any wise violative of the constitutional right to trial by jury.” Hoffman v. State (1918), 98 Ohio St. 137, paragraph one of the syllabus.

¶3Crim R. 23 (A) is such a rule. It provides, in pertinent part:

¶4“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.”

¶5Since 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.

¶6In 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*53ney of the procedural rules, and the complete lack of any objection to. the failure to impanel a jury as evidence of this waiver.

¶7"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.

¶8The 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:

¶9liIn 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.)

¶10Under the authority of Section 5(B), Article IV of the *54Ohio Constitution,5 the Criminal Rules .supersede the analogous statutes to the extent of any conflict. However, since there is no conflict between Crim. R. 23(A) and R. C. 2945.-05 in this specific situation, the statute remains effective, as prescribing the mandatory procedure for waiving the right to a jury trial in a petty offense case, once it has been demanded. The Court of Appeals in Lima v. Rambo (1960), 113' Ohio App. 158, 162, reached essentially the same conclusion, holding that, “ [i] t appearing of record that the defendant had pleaded not guilty and a jury trial had been demanded * * *, in a case in which the defendant had a right to trial by jury, it must also appear of record that the defendant had waived such right iu the manner provided by Section 2945.05, Revised Code, before the Municipal Court had jurisdiction to proceed to try the defendant without a jury.”

¶11Since 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.

¶12Judgment reversed and cause remanded.