The opinion
[Cite as State v. Bennett, 2024-Ohio-274.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29669
:
v. : Trial Court Case No. 22CRB3640
:
DONAVON BENNETT : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on January 26, 2024
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APRIL F. CAMPBELL, Attorney for Appellant
MARC T. ROSS, Attorney for Appellee
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TUCKER, J.
{¶ 1} Defendant-appellant Donavon Bennett appeals from his conviction for cruelty
to animals. For the reasons set forth below, we reverse and remand for further
proceedings.
I. Facts and Procedural Background
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{¶ 2} On October 19, 2022, Bennett was charged by criminal complaint with three
counts of cruelty to animals in violation of R.C. 959.131(B). He was arraigned the next
day, at which time a trial date was set for November 1, 2022. A notice of appearance
was filed by the public defender’s office on October 21, 2022. Bennett filed a written jury
demand and a separate motion for a continuance of the trial on October 31, 2022; the
trial court conducted a hearing on the motions that same day. According to the record,
Bennett was not transported from jail to the hearing due to the late hour of the proceeding.
Ultimately, the trial court rescheduled the trial for November 3, 2022, but denied the jury
demand as untimely.
{¶ 3} Following a bench trial, the court found Bennett guilty of one charge of cruelty
to animals and not guilty of the two other charges. Bennett was sentenced to 180 days
in jail with credit for 14 days. The remaining 166 days were suspended, and Bennett
was placed on intensive supervised probation for one year. The court ordered Bennett
to pay $309 in veterinary bills as restitution. Finally, the court ordered Bennett to attend
a Stop the Violence program and to undergo a psychiatric assessment and assessments
for drug and alcohol abuse.
{¶ 4} Bennett appeals.
II. Entitlement to a Jury Trial
{¶ 5} The first assignment of error asserted by Bennett states:
BENNETT’S CONVICTION SHOULD BE REVERSED BECAUSE
HE WAS ENTITLED TO A JURY TRIAL AND DID NOT WAIVE HIS RIGHT
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TO IT.
{¶ 6} “[T]he guarantee of a jury trial in criminal cases contained in the state and
federal Constitutions is not an absolute and unrestricted right in Ohio with respect to
misdemeanors, and a statute, ordinance or authorized rule of court may validly condition
the right to a jury trial in such a case on a written demand therefore.” State v. Tate, 59
Ohio St.2d 50, 52, 391 N.E.2d 738 (1979), quoting Mentor v. Giordano, 9 Ohio St.2d 140,
224 N.E.2d 343 (1967), paragraph one of the syllabus. “Crim.R. 23(A) is such a rule.”
Id. The rule states, in pertinent part:
In petty offense cases, where there is a right of jury trial, the defendant shall
be tried by the court unless he demands a jury trial. Such demand must be
in writing and filed with the clerk of court not less than ten days prior to the
date set for trial, or on or before the third day following receipt of notice of
the date set for trial, whichever is later.
{¶ 7} As stated, the trial court deemed Bennett’s jury demand untimely because it
had not been filed ten days before the original trial date. However, when asked to
construe Crim.R. 23(A) in City of Tallmadge v. DeGraft-Biney, 39 Ohio St.3d 300, 530
N.E.2d 1310 (1988), the Ohio Supreme Court stated:
The time limits of Crim.R. 23(A) regarding the filing of a jury demand are to
be computed with respect to the last scheduled trial date. Where a jury
demand is not timely filed with respect to the originally scheduled trial date,
a continuance of the trial will renew the time within which to file a jury
demand.
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Id. at syllabus.
{¶ 8} In reaching its decision, the DeGraft-Biney court cited Dayton v. Wood, 2d
Dist. Montgomery No. 7001, 1981 WL 2820 (June 10, 1981). In Wood, the trial court
originally scheduled a trial for June 9, 1980. Thereafter, the public defender’s office filed
a notice of appearance. A written jury demand was filed on June 4, 1980. The trial
court denied the jury demand as untimely but continued the trial date. Ultimately, the
case was tried to the bench in September 1980. No further written jury demand was
filed.
{¶ 9} On appeal, we concluded that although the defendant’s written jury demand
was not filed ten days prior to the originally scheduled trial date, his request was timely
because it was filed “on or before the third day following receipt of notice” of the actual,
rescheduled, trial date. Id. at *2.
{¶ 10} In Bennett’s case, the trial was originally set for November 1, 2022.
Although the jury demand was not timely filed as to that trial date, it was filed “on or before
the third day following receipt of notice” of the actual trial date of November 3, 2022.
Thus, the trial court erred by denying Bennett a trial by jury.
{¶ 11} In coming to this conclusion, we reject the State’s reliance on State v.
Brown, 5th Dist. Coshocton No. 90-CA-25, 1991 WL 100409 (June 3, 1991). In Brown,
counsel, representing Brown regarding a first-degree misdemeanor, filed an appearance
of counsel, a motion to continue the already-scheduled trial date, and a motion for a jury
trial. The trial court overruled the motion for a jury trial as untimely under Crim.R. 23(A),
but the motion for continuance of the trial date was granted and a new trial date was set.
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Brown ultimately entered a no contest plea and was found guilty of the charged offense.
On appeal, Brown relied on DeGraft-Biney, 39 Ohio St.3d 300, 530 N.E.2d 1310, and
argued “that when the new, continued trial date was later set the request for jury trial was
rendered timely.” Brown at *1. The appellate court disagreed, stating that in DeGraft-
Biney, “an extant motion was rendered timely by the establishment of a continued trial
date prior to ruling thereupon.” Id. The Brown court concluded that “the trial court
overruled Brown’s motion for a jury trial, and no new motion for jury trial was filed so as
to be timely with respect to the continued trial date.” (Emphasis sic.) Id. Based upon
Brown, the State argues when the trial court “overruled” Bennett’s jury demand, the
“untimely request for a jury demand [became] ‘dead’ and [could not] be revived absent
the filing * * * of another written [jury] demand that [was] timely based upon the new trial
date.” The State’s reliance on Brown is misplaced.
{¶ 12} In DeGraft-Biney, a jury demand was filed, not a motion requesting a jury
trial as suggested by the Brown decision. This is consistent with Crim.R. 23(A), which
simply requires a defendant to file a jury demand. It seems the Brown court concluded
that, because a motion for a jury trial had been filed and overruled, there was not a jury
demand “extant” – that is, pending – when the continued trial date was set, making the
DeGraft-Biney decision inapplicable. If Brown is understood as the appellate court’s
making a distinction between a motion for a jury trial and a jury demand, this distinction
perhaps has arguable merit. But if, as suggested by the State, Brown is understood as
the appellate court’s holding that, when an initially untimely jury demand becomes timely
when measured with respect to a continued trial date, a defendant must nonetheless file
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another jury demand, this interpretation is inconsistent with DeGraft-Biney. This
conclusion is confirmed by the fact that DeGraft-Biney specifically overruled State v.
Stauffer, 48 Ohio St.2d 54, 356 N.E.2d 724 (P. Brown, J., dissenting). In Stauffer, the
defendant, based upon an already-scheduled trial date, filed an untimely jury demand.
The trial court denied the jury demand as untimely. The trial was then continued to a
later date, which made the jury demand timely when measured by the new date. Stauffer
held that the continued trial date did not make the jury demand timely. The facts in the
overruled Stauffer decision are indistinguishable from the facts in Bennett’s case. This
confirms that DeGraft-Biney applied to Bennett’s jury demand, and the jury demand
became timely upon the continuance of the trial date.
{¶ 13} The first assignment of error is sustained.
III. Mootness
{¶ 14} The second and fourth assignments of error state:
THE TRIAL JUDGE VIOLATED BENNETT’S RIGHT TO BE
PRESENT AT EVERY STAGE OF HIS TRIAL BY HOLDING A HEARING
WITHOUT BENNETT, IN WHICH BENNETT’S SUBSTANTIAL RIGHTS
WERE AFFECTED.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
GRANTING BENNETT ANY MORE THAN A THREE-DAY
CONTINUANCE.
{¶ 15} Bennett asserts the trial court erred when it conducted the hearing on the
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motion for a continuance without his presence in the courtroom or via a video connection.
He further asserts the trial court erred by failing to grant a longer continuance. Given our
resolution of the first assignment of error, these assignments of error are moot.
Accordingly, the second and fourth assignments of error are overruled as moot.
IV. Recusal
{¶ 16} Bennett’s third assignment of error states:
THE ACTING JUDGE SHOULD HAVE RECUSED ITSELF [SIC]
FROM BENNETT’S TRIAL DUE TO THE ACTING JUDGE’S BIAS, AS
WELL AS THE APPEARANCE OF BIAS, AGAINST BENNETT’S
ATTORNEY.
{¶ 17} Bennett asserts that the trial judge was biased against his attorney and,
thus, erred by failing to recuse herself. Because the same trial judge may preside over
this case on remand, this issue is not rendered moot.
{¶ 18} The term judicial bias “implies a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a
fixed anticipatory judgment on the part of the judge, as contradistinguished from an open
state of mind which will be governed by the law and the facts.” State ex rel. Pratt v.
Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus. If
a municipal court judge is alleged to have a bias or prejudice for or against any party to a
proceeding pending before the judge, or to be otherwise disqualified to preside over the
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proceeding, any party to the proceeding may file an affidavit of disqualification with the
clerk of the Ohio Supreme Court. R.C. 2703.031. “R.C. 2703.031 provides the exclusive
means by which a litigant may claim that a municipal court judge is unduly interested,
biased, or prejudiced.” Columbus Checkcashers, Inc. v. Guttermaster, Inc., 10th Dist.
Franklin No. 13AP-106, 2013-Ohio-5543, ¶ 33; see also State v. Dixon, 12th Dist. Butler
No. CA2016-04-074, 2016-Ohio-7438, ¶ 20; State v. Bacon, 8th Dist. Cuyahoga No.
85475, 2005-Ohio-6238, ¶ 66.
{¶ 19} Bennett did not file an affidavit of disqualification of the municipal court
judge with the clerk of the Supreme Court. Thus, the Supreme Court was not presented
with the opportunity to review Bennett’s concerns. Simply put, Bennett failed to invoke
the jurisdiction of the proper court to review his claim of judicial bias, and we lack
jurisdiction to address his claims. State v. Hussein, 10th Dist. Franklin No. 15AP-1093,
2017-Ohio-5519, ¶ 9; State v. Jones, 11th Dist. Portage No. 2008-P-0018, 2008-Ohio-
6994, ¶ 16. On remand, Bennett is free to take the appropriate action to address this
issue.
{¶ 20} The third assignment of error is overruled.
V. Conclusion
{¶ 21} Assignments of error two, three, and four are overruled. However,
because we sustain Bennett’s first assignment of error, the judgment of the trial court is
reversed, and the matter is remanded for further proceedings.
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LEWIS, J. and HUFFMAN, J., concur.