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State v. Banks

Court of Appeals of Ohio, Tenth District

December 31, 2019

State of Ohio, Plaintiff-Appellee,
v.
Anthony Q. Banks, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 17CR-5602

          Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          Hollern & Associates, and H. Tim Merkle, for appellant.

          DECISION

          SADLER, J.

         {¶ 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.

         I. 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.

         II. ASSIGNMENT OF ERROR

         {¶ 6} Appellant assigns the following as trial court error:

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.

         III. LEGAL ANALYSIS

         {¶ 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. We agree.

         {¶ 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 ...


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