finding that the requirements of R.C. 2945.05 are clear and 7 OHIO FIRST DISTRICT COURT OF APPEALS unambiguous, and the statute “requires that in order to effectuate a valid waiver of the right to trial by jury, the defendant in a criminal action must sign a written waiver * * * .”
How later courts described this case
- finding that the requirements of R.C. 2945.05 are clear and 7 OHIO FIRST DISTRICT COURT OF APPEALS unambiguous, and the statute “requires that in order to effectuate a valid waiver of the right to trial by jury, the defendant in a criminal action must sign a written waiver * * * .”
- holding that “the failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction”
- holding that in the absence of such a waiver “a trial court lacks jurisdiction to try the defendant without a jury”
- holding that the written waiver requirements of R.C. 2945.05 must be strictly observed
Written by the judges who cited it.
The opinion
Cook, J.,
dissenting. I respectfully dissent from the decision of the majority to reverse appellant’s convictions. This case is different from both the Dallman and Tate cases cited by the majority. In those cases, the trial court record did not affirmatively reflect, as it did in this case, that the defendants voluntarily waived the right to a jury trial. State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261 , 638 N.E.2d 563, 564 , and State v. Tate (1979), 59 Ohio St.2d 50, 52-53 , 13 O.O.3d 36, 37 , 391 N.E.2d 738, 739 .
Our recent decision in Larkins overruled Dallman’s strict compliance limitation and controls the case at hand on the jurisdiction issue. State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658, 661 , 653 N.E.2d 701, 703 . Larkins based his challenge solely on the fact that, although his jury waiver form was physically located in the court file, the absence of a time-stamp thereon defeated the jurisdiction of the trial court to convict him without a jury. The majority in Larkins stated that “[t]he failure to strictly comply with R.C. 2945.05 by failing to file a properly executed written jury trial waiver under these unique circumstances is not a jurisdictional defect and did not affect the trial court’s authority to proceed with a bench trial.” Id. at 661 , 653 N.E.2d at 703 . Larkins relied on R.C. 2945.06 as support for the proposition that a trial court has jurisdiction for a bench trial only if the “defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code.” Based on this, the *342 Larkins majority determined that “[t]he failure to strictly comply with R.C. 2945.05 by not filing the executed written waiver was not the result of Larkins’ failure to properly waive his right to be tried by a jury and elect to be tried by the court. * * * Instead, the failure to comply with R.C. 2945.05 was the result of an error on the part of the trial court to formally file the executed written waiver.” Larkins, 73 Ohio St.3d at 661 , 653 N.E.2d at 703 . I, therefore, disagree with the majority’s conclusion that Larkins is limited to habeas corpus actions or that the result in Larkins was dictated by the written waiver’s presence in the trial court’s case file.
Like Larkins, Pless does not dispute what is reflected in the official court record, that he signed a written waiver of his right to a jury trial, affirmatively waiving his right to a jury trial and consenting to be tried by a three-judge panel. Pless also does not dispute that the trial judge reflected Pless’s election in a journal entry. As cited at footnote 2 of the majority opinion, the official transcript of the court details the painstaking efforts of the trial judge to systematically make a clear record of the defendant waiving his right to a jury trial in writing in open court after having considered it for months with input from family and the two lawyers representing him. Through the transcript we have a record of the defendant and his counsel confirming that the defendant had just signed the waiver that the judge was holding in her hand as she proclaimed on the record that she would make the waiver a part of the record. The judge then signed a journalized entry stating that the defendant had elected to be tried before a three-judge panel. With such a record of the defendant’s waiver, a missing time-stamped form does not divest the court of jurisdiction according to the reasoning and holding of Larkins.
I would affirm the convictions in all respects.
Pfeifer, J., concurs in the foregoing dissenting opinion.