holding that “it is not necessary that the written waiver be signed in open court to be valid”; rather, “as long as the signed writing has been made a part of the record and the waiver is reaffirmed in open court, the procedural requirements of [Ohio’s jury-trial waiver statute and corresponding rule of criminal procedure] are satisfied”
How later courts described this case
- holding that “it is not necessary that the written waiver be signed in open court to be valid”; rather, “as long as the signed writing has been made a part of the record and the waiver is reaffirmed in open court, the procedural requirements of [Ohio’s jury-trial waiver statute and corresponding rule of criminal procedure] are satisfied”
Written by the judges who cited it.
The opinion
Mary Eileen Kilbane, Judge,
dissenting.
{¶ 41} I respectfully dissent from the majority’s decision that concluded that the trial court complied with R.C. 2945.05 when it accepted appellant’s jury waiver. For the following reasons, I would reverse and remand for a new trial.
{¶ 42} R.C. 2945.05 provides that a defendant may elect to waive his right to be tried by a jury at any time prior to the commencement of trial. In order for the waiver to be valid, it must be in writing, signed by the defendant, filed, made part *611 of the record, and made in open court. Lomax, 114 Ohio St.3d 350 , 2007-Ohio-4277 , 872 N.E.2d 279, ¶ 9 .
{¶ 43} The Ohio Supreme Court has previously held that a trial court lacks jurisdiction to try a defendant when the trial court has failed to strictly comply with R.C. 2945.05. Pless, 74 Ohio St.3d at 337 , 658 N.E.2d 766 , citing State v. Tate (1979), 59 Ohio St.2d 50 , 13 O.O.3d 36 , 391 N.E.2d 738 . Appellant argues that the trial court did not comply with the requirement that the waiver be made in open court; specifically, that the appellant’s signature be made or acknowledged in open court.
{¶ 44} In the instant case, the jury-waiver form was signed outside the presence of the trial court. Although it is not required that a defendant sign the waiver in open court, if he does not, the court must verify that it is the defendant’s signature on the written waiver. State v. Corbin, Cuyahoga App. No. 82266, 2004-Ohio-2847 , 2004 WL 1221670 , ¶ 24.
{¶ 45} The trial court read the jury waiver to appellant and explained to him the specific rights he was giving up by waiving his right to a jury trial. However, the trial court never specifically verified that it was, in fact, appellant’s signature on the written waiver form. I disagree with the majority’s assertion that the defense counsel attested to appellant’s signature. A review of the transcript reveals that defense counsel attested to his own signature on the written waiver, but never verified appellant’s signature. The trial court never inquired as to appellant’s signature.
{¶ 46} While this court has previously stated that there is no specific language the trial court must use when questioning the defendant regarding his jury waiver, we have never held that the signature on the written waiver does not require verification. Thomas, 2003-Ohio-6157 , 2003 WL 22724619 , at ¶ 14, citing State v. Huber, Cuyahoga App. No. 80616, 2002-Ohio-5839 , 2002 WL 31401616 .
{¶ 47} In Corbin, 2004-Ohio-2847 , 2004 WL 1221670 , this court specifically stated, “R.C. 2945.05 does not require a defendant to complete the act of signing the waiver in open court; the waiver is valid if the defendant acknowledges his signature and expresses his understanding of the waiver.” Corbin at ¶ 24, citing State v. Franklin, Cuyahoga App. No. 81426, 2003-Ohio-2649 , 2003 WL 21193014 , at ¶ 12-13; see also State v. Campbell, Cuyahoga App. No. 83489, 2004-Ohio-4090 , 2004 WL 1752978 , at ¶ 9.
{¶ 48} In this case, although appellant indicated to the trial court that he understood the waiver, the trial court never verified that the signature on the written waiver was, in fact, executed by appellant. Therefore, I would reverse on the first assignment of error and remand for a new trial.