suggesting that the General Assembly amend R.C. 2945.05 in cases involving petty crimes to avoid “obvious courtroom sandbagging perpetrated upon the trial judge by the defendant and his trial counsel”
How later courts described this case
- suggesting that the General Assembly amend R.C. 2945.05 in cases involving petty crimes to avoid “obvious courtroom sandbagging perpetrated upon the trial judge by the defendant and his trial counsel”
- “[w]here a defendant in a petty offense case has a right to trial by jury and pleads not guilty and demands a jury trial in the manner provided by Crim.R. 23(A), it must appear of record that such defendant waived this right in writing in the manner provided by R.C. 2945.05, in order for the trial court to have jurisdiction to try the defendant without a jury”
- “[I]t must appear of record that such defendant waived this right in writing in the manner provided by [O.] R.C. [§] 2945.05, in order for the trial court to have jurisdiction to try the defendant without a jury.”
- “[I]t must appear of record that such defendant waived this right in writing in the manner provided by [O.jR.C. [§ j2945.05, in order for the trial court to have jurisdiction to try the defendant without a jury.”
Written by the judges who cited it.
Distinguished
Distinguished by State v. Pless, 74 Ohio St. 3d 333 (1996)
We distinguished Tate in Larkins, on the basis that Tate addressed the issue of compliance with R.C. 2945.05 only in the context of a direct appeal from a criminal conviction.
The opinion
Holmes, J.,
concurring.
1 concur in the decision in this case, but feel compelled to make a few observations concerning the law that this court was compelled to apply even in light of the facts presented.
Justice Sweeney is correct in his conclusion that R. C. *55 2945.05 was not superseded by Crim. R. 23(A) even though so stated within the editorial comment of Page’s Ohio Revised Code. The substantive right of trial by jury as granted in R. C. 2945.05 is not necessarilv in conflict with Crim. R. 23(A).
However, under the facts as presented within thist case, and other similar circumstances where a definite waiver is shown by the knowing acts of the party, the law should reasonably allow a waiver to be effected in petty criminal cases. Here, the facts glaringly show that there was an obvious courtroom sandbagging perpetrated upon the trial judge by the defendant and his trial counsel.
Here, the record shows that the defendant is a man of above normal intelligence. He was represented by employed counsel, and the latter, when asked by the trial judge if the defendant rvas ready to proceed to trial, stated that he was ready and did not mention to the judge that he desired a jury trial. The trial proceeded and the defendant testified. Upon being found guilty of the offense charged, the defendant and his counsel had no comment to make to the court and, again, no mention of, or complaint about, proceeding without a jury.
It is my belief that, in order to avoid this type of situation in the future, prosecutors should make a more thorough review of the record lo determine the presence of a request for a jury. An even more appropriate permanent approach would be for the General Assembly to amend R. C. 2945.05 so that a waiver need only he in writing by one charged with a serious offense.
P. Bbown, J., concurs in the foregoing concurring opinion.