from Lima Municipal Court Trial Court No. 18TRC02739 A3
Katter for Appellant
Anthony M. DiPietro for Appellee
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.
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).
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. (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).
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.).
On December 28, 2018, Ames filed notice to appeal raising
three assignments of error. (Doc. Nos. 25-28).
of Error No. I
Ames did not knowingly, intelligently, and voluntarily waive
his right to a jury trial.
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.
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) 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
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.
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.
"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
On appeal, Ames contends that his jury waiver was not
voluntary, knowing, or intelligently given because the trial
court failed to comply with ...