State v. Filiaggi

Cook, J.,

concurring in part and dissenting in part. I concur with the majority opinion, except I would find that any error resulting from a single judge *255 deciding the noncapital offenses in this case was waived by the defendant’s failure to object.

The defendant in a noncapital criminal case where a jury is waived is tried and his guilt determined by a single judge. R.C. 2945.06, in reference to capital offenses, provides that where a jury is waived, the case should be tried and determined by a panel of three judges. The statute may allow the three-judge panel to determine noncapital offenses along with capital offenses, but does not require it.

The majority finds, without explanation, that the three-judge panel cannot be waived as to noncapital offenses. I have found no reason why the failure to object should not waive this issue. In fact, our decision in Swiger v. Seidner (1996), 74 Ohio St.3d 685, 686 , 660 N.E.2d 1214, 1216 (where defendant waived three-judge panel and a single judge determined both capital and noncapital offenses, single judge had jurisdiction to determine noncapital offense) supports the waiver argument.

Accordingly, I would affirm the judgment of the court of appeals on this issue.

APPENDIX

“Proposition of Law One[:] It is prejudicial error for a trial court to find a defendant competent to' stand trial where the evidence shows that additional evaluations may have shown otherwise.

“Proposition of Law Two[:] It is an abuse of discretion for a trial court to fail to grant a new trial when that court failed to make a meaningful determination regarding defendant’s competence to stand trial.

“Proposition of Law Three[:] A defendant’s decision to waive a jury and be tried by a three judge panel is not voluntary, knowing and intelligent when the court does not engage in any meaningful colloquy with him regarding the meaning of a jury trial.

“Proposition of Law Four[:] It is a violation of a defendant’s due process rights when a trial court fails to have the entire three judge panel decide all the charges contained in the indictment.

“Proposition of Law Five[:] It is a violation of a defendant’s due process rights when the trial court fails to specifically inquire whether defendant knowingly and intelligently waived his right to testify at trial.

“Proposition of Law Six[:] It is an abuse of discretion and highly prejudicial to a defendant when a trial court refuses to permit a defendant to enter the reports of his experts into evidence.

“Proposition of Law Seven[:] It is an abuse of discretion for the trial court to refuse to find a defendant not guilty by reason of insanity when the experts deem otherwise.

*256 “Proposition of Law Eight[:] When the R.C. 2929.03(F) opinion of the three judge panel is defective a new trial must be ordered.

“Proposition of Law Nine[:] It is error for a trial court to impose a death sentence when the death penalty law as currently applied in Ohio violates R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.04(A) review of ‘similar cases’ for proportionality, to examine only those cases in which a death sentence was imposed and ignore those in which a sentence of life with parole eligibility after twenty full years or life with a parole eligibility after thirty full years was imposed. The current method also violates the rights to a fair trial and due process, results in cruel and unusual punishment, and implicates others of appellant’s protected rights as well, all as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9, 10, 16 and 20, Article I of the Ohio Constitution.

“Proposition of Law Ten[:] It is prejudicial error to sentence defendant to the death penalty, when, based upon the law and the record of this case, the sentence of death herein is inappropriate and is disproportionate to the penalty imposed in similar cases, in violation of defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10 and 16 of Article One of the Ohio Constitution.

“Proposition of Law Eleven[:] The proportionality review that this court must conduct in the present capital case pursuant to Ohio Revised Code Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05, in violation of defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10 and 16 of Article One of the Ohio Constitution.

“Proposition of Law Twelve[:] R.C. 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 as read together and as applied in this case violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16 of Article I of the Ohio Constitution.”