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State v. Ames

Court of Appeals of Ohio, Third District, Allen

July 1, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BRUCE M. AMES, DEFENDANT-APPELLANT.

          Appeal from Lima Municipal Court Trial Court No. 18TRC02739 A3

          Blaise Katter for Appellant

          Anthony M. DiPietro for Appellee

          OPINION

          ZIMMERMAN, P.J.

         {¶1} Defendant-appellant, Bruce M. Ames ("Ames"), appeals the November 30, 2018 judgment entries of sentencing of the Lima Municipal Court. For the reasons that follow, we affirm the judgments of the trial court.

         {¶2} On March 26, 2018, Ames was issued a citation for operating a vehicle under the influence of alcohol or drugs-OVI in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor, and for a tinted-glass restriction in violation of R.C. 4513.241(C), a minor misdemeanor. (Doc. No. 1). Ames submitted to a urine test subsequent to his arrest. (Id.). Ames appeared for arraignment in the trial court on March 29, 2018 and entered pleas of not guilty. (Doc. No. 4).

         {¶3} Thereafter, Ames was charged with an additional offense of operating a vehicle under the influence of alcohol or drugs-OVI pursuant to R.C. 4511.19(A)(1)(j)(viii) (II), a first-degree misdemeanor, after the State received the results of Ames' urine test on August 21, 2018. (Doc. No. 11). On August 27, 2018, Ames filed a written plea of not guilty to the new OVI charge along with a demand for a jury trial. (Doc. Nos. 15, 16). However, on November 28, 2018, Ames executed a waiver of jury trial.[1] (Doc. No. 24). On November 29, 2018, a bench trial commenced, and the trial court found Ames guilty of all three charges. (Doc. No. 21).

         {¶4} At Sentencing, the trial court merged the two OVI offenses. Ames was sentenced on the OVI in violation of R.C. 4511.19(A)(1)(j)(viii)(II) to serve 90 days in the Allen County Justice Center with 80 days suspended upon the conditions that Ames have no further driving under suspensions; no further no operator's license, offenses or no six-point violations for a two-year period; that Ames report to the Allen County Justice Center on December 7, 2018 at 6:00p.m. for imposition of his ten-day jail sentence; that Ames be placed on probation for period of one-year with the same conditions of the suspended jail sentence; that Ames's license be suspended for a period of 730 days commencing on November 30, 2018; and that Ames pay a $750.00 fine plus court costs in the instant matter. (Doc. No. 21). Ames received a $25.00 fine and was ordered to pay court costs on the tinted-glass conviction. (Id.).

         {¶5} On December 28, 2018, Ames filed notice to appeal raising three assignments of error.[2] (Doc. Nos. 25-28).

         Assignment of Error No. I

         Mr. Ames did not knowingly, intelligently, and voluntarily waive his right to a jury trial.

         {¶6} Ames argues that there was no colloquy on the record to determine if his jury waiver was in fact knowing, intelligent, and voluntarily given. Moreover, Ames argues that even if his waiver was valid, his oral request for a jury trial made immediately prior to the commencement of his bench trial was a sufficient withdrawal of his jury waiver.

         Standard of Review

         {¶7} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444 (1968). Likewise, Section 5, Article I of the Ohio Constitution states that the "right of trial by jury shall be inviolate." However, Crim.R. 23(A)[3] allows a defendant to waive his right to a trial by jury in petty offense cases provided that the waiver is made knowingly, intelligently, and voluntarily, and in writing. The General Assembly has set forth the manner in which a defendant may waive this right. R.C. 2945.05 states:

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.

         {¶8} The Supreme Court of Ohio has construed R.C. 2945.05 to require five conditions to be met in order for a waiver to be validly imposed. The 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. See State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 9; See also State v. Barr, 3d Dist. Union No. 14-09-40, 2010-Ohio-1258, ¶ 10, citing Lomax at ¶ 9.

         {¶9} "A jury waiver must be voluntary, knowing, and intelligent." State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 45 citing State v. Ruppert, 54 Ohio St.2d 263, 271 (1978). "Waiver may not be presumed from a silent record." Id. citing State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 52. "However, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made." Id. "Moreover, a written waiver is presumptively voluntary, knowing, and intelligent." Id.

         Analysis

         {¶10} On appeal, Ames contends that his jury waiver was not voluntary, knowing, or intelligently given because the trial court failed to comply with ...


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