from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for
Hollern & Associates, and H. Tim Merkle, for appellant.
1} Defendant-appellant, Anthony Q. Banks, appeals
from a judgment of the Franklin County Court of Common Pleas
convicting him of having a weapon while under disability
("WUD"), in violation of R.C. 2923.13, and a
firearm specification pursuant to R.C. 2941.145(D). For the
reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
2} On October 13, 2017, a Franklin County Grand Jury
indicted appellant on charges of attempted murder, in
violation of R.C. 2923.02, a felony of the first degree;
felonious assault, in violation of R.C. 2903.11, a felony of
the second degree; and WUD, in violation of R.C. 2923.13, a
felony of the third degree. A five-year firearm
specification, pursuant to R.C. 2941.145(D), accompanied all
the charges. A repeat violent offender specification,
pursuant to R.C. 2941.149(A), also accompanied all the
charges with the exception of the WUD charge.
3} In pre-trial proceedings, the trial court
permitted appellant to waive a trial by jury as to the WUD
charge. Over the objection of plaintiff-appellee, State of
Ohio, the trial court also permitted appellant to waive jury
trial as to the firearm specifications associated with the
attempted murder and felonious assault charges. Appellant
signed jury waiver forms which were filed with the trial
court prior to commencement of the jury trial.
4} The jury was unable to reach a verdict as to the
charges of attempted murder and felonious assault, Counts 1
and 2 of the indictment, and the trial court declared a
mistrial. Following a bench trial, the trial court convicted
appellant of the WUD charge and the accompanying firearm
specification. On September 26, 2018, the trial court held a
sentencing hearing during which the prosecutor requested a
nolle prosequi on the charges of attempted murder and
felonious assault, and the trial court dismissed those
charges. The trial court sentenced appellant to 30 months in
prison for the WUD charge consecutive to 54 months in prison
for the firearm specification, for an aggregate a prison term
of 7 years.
5} Appellant timely appealed to this court from the
September 26, 2018 judgment.
ASSIGNMENT OF ERROR
6} Appellant assigns the following as trial court
THE TRIAL COURT LACKED JURISDICTION TO TRY THE APPELLANT ON
THE HAVING WEAPONS WHILE UNDER DISABILITY CHARGE BECAUSE HIS
WAIVER OF A JURY TRIAL FAILED TO COMPLY WITH THE REQUIREMENTS
OF R.C. §2945.05.
7} In appellant's sole assignment of error,
appellant contends the trial court lacked jurisdiction to
conduct a bench trial on the WUD charge because the trial
court failed to comply with the requirements of R.C. 2945.05.
8} "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." State v. Ames, 3d Dist. No.
1-19-02, 2019-Ohio-2632, ¶ 7, citing Duncan v.
Louisiana, 391 U.S. 145, 148 (1968). Section 5, Article
I of the Ohio Constitution states that the "right of
trial by jury shall be inviolate." Consequently,
"[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). "[A]
written waiver is presumptively voluntary, knowing, and
intelligent." Osie at ¶ 45, citing
State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006,
¶ 52. However, "[w]aiver may not be presumed from a
silent record." Osie at ¶ 45, citing
Foust at ¶ 52. "[I]f 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." Osie at ¶ 45, citing
Foust at ¶ 52.
9} Crim.R. 23(A) provides for a waiver of jury trial
in criminal cases as follows:
In serious offense cases the defendant before commencement of
the trial may knowingly, intelligently and voluntarily waive
in writing his right to trial by jury. Such waiver may also
be made during trial with the approval of the court and the
consent of the prosecuting attorney.
10} The General Assembly has set forth the manner in
which a defendant may ...