Petition for Writ of Certiorari — Ladwig v. Kentucky

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93-915 | Frees |

a 7 .

NO. HOY ‘ a ew)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

CHARLES LADWIG,

Petitioner,

vs.

COMMONWEALTH OF KENTUCKY

Respondent.

Petition for Writ of Certiorari to the

Ccmmonwealth of Kentucky Supreme Court

PETITION FOR WRIT OF CERTIORARI

W. Robert Lotz

Counsel of Record

120 West Fifth Street

Covington, Kentucky 41011

(606) 491-2206

I.

QUESTION PRESENTED

1. Whether a valid waiver of a criminal

defendant’s right to trial by jury for a

nonpetty offense under the sixth

amendment to the United States

Constitution can be inferred from a

Silent record if the defendant was

represented by counsel and did not

affirmatively request a jury before trial

to the bench?

Iit.

Table of Contents

Page

Question Presented for Review......... sek

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References to Opinions Below............2

Statement of Jurisdictional

EE ese vereee#s#feeee#e#e#eesesees#« 2

Constitutional Provisions.........eeeeeee3

Kentucky Statutory Provisions and

Ei ccc ecee eee eeeeeecesseée 4

eee, GE GeO COGGcccccccccesecece see8

Reason for Granting the Writ......... 012

=~~ie sche 6600006 660000606006606R9

BBMONRGLER . oc cc ccccccccccccccccese cocccee la

A. Order and Opinion of the Commonwealth

of Kentucky Kenton Circuit Court ......la

B. Order Denying Discretionary Review by

Commonwealth of Kentucky Court of

RABMORLS ce cccccccscccccccccccsesccccccces 6a

Page

C. Order Denying Discretionary Review by

Commonwealth of Kentucky Supreme

COUR G i sdcersocbacdeodesne cesbisihscsecvratk

D. Commonwealth of Kentucky Kenton

District Court Motion for Jury Trial

Sy ee eae a ee e*eee#eee#s: TerrrTe.

E. Kentucky District Judges Benchbook

Arraignment Procedure for

Misdemeanors........... (Ae eesesesesene 10a

Vv

TABLE OF AUTHORITIES

Cases: Page

Adams v. United States ex rel McCann,

317 U.S.269 ERE O686b 6686668 0060600008

Baldwin v. New York,

ae ee ee BE c6e06 0000666 ecoeld, 13

Boykin v.. Alabama,

rE eee 10, 15

Carnley v. Cochran,

fA Se Sl ee ee 16

uncan v. Louisiana,

Bra Wee BE Cee sbéeccccctavocce 10, 13

Johnson v. Zerbst,

Bee Dabo EHO Chee ccccccccccescceor 10, 13

McCarthy v. United States,

394 U.S. 459 (1969)...... WwTUTTTTTTTTTT 16

Park v. Raley,

SS Dememews Geer CBORD) cccccccodcccceese 16

Patton v. United States,

SF Oe: eee 10, 14, 15

Singer v. United States,

Se ee Be CDS eebcscccceces eceecee 14

United States v. Martin,

704 F.2d 267 (6th Cir. 1983).......... -14

VI

Cases: Page:

Brown v. Hoblitzel,

307 S.W.2d 739 (Ky. 1957) ..cccecsee eookl

Short v. Commonwealth,

POP Wemewe See Leis BPS) ccccccsceccsell

Williams v. Pierson,

BPS Bameee SFG {Ee 19468) cwcccccccccecs 17

Crane v. Commonwealth,

680 S.W.2d 138 (Ky. Ct. Apps. 1984)...17

Statutory Provisions:

Ky. Rev. Stat. §29A.270(1)......... 5, i7

Be ROW. BCAC. SSCS. O20. ccccccecsece S, 23

BY: MOV. SESE. $S0G. 080. ccccccccscsceces 6

Ky. Rev. Stat. §532.090(1)..cccccccccee 6

Kentucky Rule of Criminal Procedure:

ee 1.) ebeta eles 4, 17

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

CHARLES LADWIG,

Petitioner,

vs.

COMMONWEALTH OF KENTUCKY

Respondent.

Petition for Writ of Certiorari to the

Commonwealth of Kentucky Supreme Court

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Charles Ladwig,

respectfully prays that a writ of

certiorari issue to review the judgment

and opinion of the Commonwealth of

Kentucky Kenton Circuit Court entered in

this case on January 28, 1993.

REFERENCES TO OPINIONS BELOW

The opinion of the Commonwealth of

Kentucky Kenton Circuit Court dated

January 28, 1993, is unreported and

appears in the appendix at page la.

JURISDICTIONAL STATEMENT

The judgment of the Commonwealth of

Kentucky Kenton Circuit Court was entered

on January 28, 1993. The order of the

Commonwealth of Kentucky Court of Appeals

denying discretionary review was entered

on April 8, 1993. (App., page 6a). The

order of the Kentucky Supreme Court also

denying discretionary review on this

judgment was entered on August 25, 1993.

(App., page 7a). This Petition for Writ

of Certiorari was filed within 90 days of

this latter date. This Court’s

jurisdiction is invoked under 28 U.S.C.

section 1257(a).

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment VI:

In all criminal prosecutions, the

accused shall enjoy the right to speedy

and public trial by, an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defense.

United States Constitution, Amendment

XIV, Section 1:

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

priviliges or immunities of the citizens

of the United States; nor shall any State

deprive any person of life, liberty, or

property without due process of law; nor

deny to any person within its

jurisdiction the equal protection of the

laws.

KENTUCKY STATUTORY PROVISIONS AND

PROCEDURAL RULES

Kentucky Rule of Criminal Procedure

9.26(1):

Cases required to be tried by a jury

shall be so tried unless the defendant

waives a jury trial in writing with the

approval of the Court and the consent of

the Commonwealth.

KRS 29A.270(1):

Defendants shall have the right toa

jury trial in all criminal prosecutions,

including prosecutions for violations of

traffic laws, in the circuit and district

Courts. The defendant may request a jury

trial at any time prior to the time his

case is called for trial. KY. REV. STAT.

ANN. §29A.270(1) (Michie/Bobbs-Merrill

1992).

STATEMENT OF THE CASE

The Petitioner, Charles Ladwig, was

charged in a private criminal complaint

with the offenses of Assault in the 4th

Degree, KY. REV. STAT. ANN. § 508.030

(Michie/Bobbs-Merrill 1988), and

Terroristic Threatening, Id. at §508.080.

Both offenses are Class A Misdemeanors.

A Kentucky Class A Misdemeanor carries a

maximum sentence of 12 months in jail.

Id. at §532.090(1).

On January 29, 1992, the Petitioner,

with retained counsel Bernard Blau, was

arraigned before the Hon. James Godsey,

Commonwealth of Kentucky Kenton District

Court. On February 5, 1992, an Order was

entered appointing C. Donald Wells to

preside as Special Judge in the case and

scheduling the matter for trial on

March 4, 1992, at 10:00 a.m. On March

4, 1992, the case was sent to

pretrial services for Mediation. On

6

August 9, 1992, an Order was entered

setting the matter for trial before the

Court on Thursday, Septeuber 24, 1992, in

Falmouth, Kentucky.

On September 24, 1992, and September

25, 1992, the case was tried to the Hon.

C. Donald Wells without a jury.

Petitioner was represented by retained

counsel who answered "thats correct" when

the Court asked if the defendant was

ready for trial. The Petitioner was

acquitted of Terroristic Threatening, and

convicted of Assault in the Fourth

Degree.

On November 10, 1992, and

November 13, 1992, the case was

called for sentencing hearing. The Court

found that there was no record of any

prior conviction of the Defendant and

sentenced him to 100 days in jail,

$500.00 fine and costs. The Court

entered a conditional discharge and

7

probation Order, ordering the Petitioner

to spend 84 hours in jail, to do 50 hours

of Community Service for a Governmental

Agency, to be on supervised probation for

3 months, to pay costs of supervision, to

pay $17.50 per day for the four days in

jail, and to initiate no contact or

communication with the complainant.

Counsel on Appeal and for Certiorari

has reviewed the record in the case

consisting of the filings in the District

Court, and the tape recorded Record of

Proceedings of January 29, 1992, March 4,

1992, September 24, 1992 and September

25, 1992 and represents that the record

is completely silent and fails to reveal

any of the following:

1. A Waiver of his right to trial

by jury by the Petitioner, Charles

Ladwig, written or oral.

2. A Waiver of his right to trial

by jury by counsel for the Petitioner,

8

Charles Ladwig, written or oral.

3. A Waiver of trial by jury by

counsel for the Commonwealth of Kentucky,

written or oral.

4. An Approval by the

Commonwealth of Kentucky District Court

of the Waiver of trial by jury, written

or oral.

5. Any evidence that the Petitioner

was advised or addressed by the Court

regarding his right to trial by jury at

any stage of the proceedings.

Direct appeal of the Defendant’s

judgment of conviction was timely made to

the Kenton Circuit Court. The statement

on Appeal presented the following

argument:

The defendant’s conviction must

be reversed because the record

fails to reveal that a

knowing and voluntary waiver of

the right to trial by jury was

ever made by the defendant or

by the Commonwealth or approved

by the Court.

LTC

Federal Constitutional authority

cited included the United States

Constitution Amendment VI, Amendment XIV;

Baldwin v. New York, 399 U.S. 66 (1970);

Boykin v. Alabama, 295 U.S. 238 (1969);

Duncan v. Louisiana, 391 U.S. 145 (1968);

Johnson v. Zerbst, 304 U.S. 438 (1938);

Patton v. United States, 281 U.S. 276

(1930).

The Kenton Circuit Court’s judgment

affirming the District Court’s decision

and denying Petitioner’s aforementioned

ground on appeal stated in pertinent

part:

The ... [Petitioner] was

represented by an attorney at

all stages of these proceedings.

He never requested a jury trial.

He announced ready for trial at

the call of his case for trial.

With the ... [Petitioner’s]

concurrence, he was tried by the

Court and was found guilty.

He cannot complain because the

results of the bench trial were not

to his advantage.

10

The Petitioner then moved the

Commonwealth of Kentucky Court of Appeals

for discretionary review of the Circuit

Court’s judgment. The Court of Appeals

denied discretionary review in an order

dated April 8, 1993. (App., page 6a).

After being denied discretionary

review by the Court of Appeals,

Petitioner then moved the Kentucky

Supreme Court for discretionary review of

the Circuit Court’s judgment. The

Kentucky Supreme Court denied

discretionary review in an order dated

August 25, 1993. (App., page 7a).

11

REASON FOR GRANTING THE WRIT

I. The Commonwealth of Kentucky

Circuit Court decision on direct appeal

holding that a defendant represented by

counsel in a nonpetty criminal case had

the affirmative burden to request a jury

trial and inferring waiver of the

Federal Jury Trial Right from a silent

record conflicts directly with applicable

U.S. Supreme Court Law which sets forth

minimum conditions precedent to a valid

waiver of this important Federal right,

in particular, waiver must be of record,

preferably in writing, and it must be

voluntary, knowing, and intelligent.

The Federal Constitutional right to

trial by jury under the VI & XIV

Amendments of the United States

Constitution applies to all criminal

prosecutions for offenses which carry a

maximum penalty of confinement of more

12

than six months or death. Baldwin v. New

York, 399 U.S. 66, 69 (1970). Duncan v.

Louisiana, 391 U.S. 145, 159 (1968).

This fundamental right is applicable to

the charge of Assault in the 4th Degree,

KY. REV. STAT. ANN. §508.030

(Michie/Bobbs-Merrill 1992), a Class A

Misdemeanor carrying a maximum sentence

of 12 months in jail.

Under federal constitutional law,

a waiver of a federal constitutional

right is not valid under the Due Process

Clause unless it is “an intentional

relinquishment or abandonment of a known

right or privilege". Johnson v. Zerbst,

304 U.S. 458, 464 (1938).

When a Defendant is waiving his or

her Federal Constitutional right to trial

by jury, four conditions must be met

before a valid waiver in a criminal case

becomes effective: first, the waiver must

be in writing; second, the government

13

attorney must consent to the waiver;

third, the trial court must approve the

waiver; and fourth, Defendant’s waiver

must be voluntary, knowing, and

intelligent. See Patton vs. United

States, 281 U.S. 276, 312-13 (1930);

Singer v. United States, 380 U.S. 24, 31

(1965); Adams v. United States ex rel

McCann, 317 U.S. 269, 275 (1943). See

also United States v. Martin, 704 F.2d

267, 271 (6th Cir. 1983).

Perhaps the most important language

in the Patton opinion deals with the

fourth condition of a voluntary, knowing,

and intelligent waiver of a Federal

Constitutional right to trial by jury:

Before any waiver of the right of

one charged with crime to trial by

jury can become effective, the

consent of government counsel, and

the sanction of the court must

be had, in addition to the express

and intelligent consent of the

defendant; and the duty of the trial

court in that regard is not to be

discharged as a mere matter of

rote, but with sound and advised

14

—

discretion, with an eye to avoid

unreasonable or undue departures

from that mode of trial, or from

any essential elements thereof, and

with a caution increasing in degree

as the offenses dealt with increase

in gravity. Patton v.Unites States,

28 U.S. 276, 312-13 (1930).

Several U.S. Supreme Court Opinions

have affirmed Patton in holding

that waiver of important Federal

Constitutional rights, including the

right to trial by jury, cannot be

presumed from a silent record, especially

to establish the fourth condition of a

voluntary, knowing, and intelligent

waiver.

Boykin v. Alabama involved a direct

appeal from a conviction based upon a

guilty plea where the record was

Silent on its face as to waiver of the

Federal Constitutional right to trial by

jury. 295 U.S. 238, 242 (1969). Boykin

approved the procedure of direct appeal

of such convictions and held that the

15

waiver of a defendant’s right to trial by

jury, as one of three important Federal

Rights, cannot be presumed from a silent

record. Id. at 243. The Court further

held that it was plain error for a trial

judge to enter a judgment based upon a

guilty plea without an affirmative

showing that the waiver of jury trial was

intelligently and voluntarily made. Id.

at 242. Boykin established a requirement

that the prosecution must spread upon the

record of the case evidence of a valid

waiver of federal constitutional rights.

See Park v. Raley 61 U.S.L.W 4007,

(1992), McCarthy v. United States,

394 U.S. 459, 466 (1969).

Carnley vs. Cochran concerned the

waiver of the Federal Constitutional

right to counsel. 369 U.S. 506, 516

(1962). This Court held: "presuming a

waiver from a silent record is

impermissible. The record must show, or

16

*e7-*

there must be an allegation which shows,

that an accused was offered counsel but

intelligently and understandingly

rejected the offer." Id. at 516.

The Kentucky Circuit Court decision

which held that the failure of Charles

Ladwig or his counsel to request a jury

trial, standing alone, constituted a

valid waiver of that right, reflects

Kentucky doctrine set forth in Brown v.

Hoblitzel, 307 S.W.2d 739 (Ky. 1957);

Williams v. Pierson, 191 S.W.2d 574 (Ky.

1945), and codified in Ky. Rev. Stat.

29.A.270(1). Although Kentucky R Cr

9.26(1) and later decisions in Short v.

Commonwealth, 519 S.W.2d 828 (Ky. 1975)

and Crane v. Commonwealth, 680 S.W.2d 138

(Ky. Ct. Apps. 1984), appear to mandate

adherence to Federal Constitutional

requirements for a valid waiver, these

requirements continue to be ignored in

practice by the District Courts. The

17

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Kentucky District Judge’s Benchbook

wey ivitn nisteneaner arraignment

procedure does not require advice to the

defendant of jury trial right or how to

assert it, nor any procedure for

obtaining jury trial waivers before

proceeding to bench trials. (App.,

page 10a). In Kenton County the Court

Standard Form requires filing by a

Defendant of a written motion for jury

trial before one is granted. (App.,

page 8a).

Because of these procedures, which

continue to exist, Charles Ladwig was

tried, convicted and sentenced to jail by

a judge for a nonpetty offense without an

oral or written waiver of jury trial by

himself, his attorney, the prosecutor, or

the Court ever appearing of record.

There is not even a record of the jury

trial right ever being discussed or

explained to him.

18

CONCLUSION

The total omission by the Kentucky

trial court of adherence to

Constitutionally mandated procedure for

obtaining and approving a waiver of this

defendant’s right to trial by jury

requires reversal of his conviction on

direct appeal as a matter of important

Federal Constitutional Law. The issue of

"silent waivers" has not been clearly

addressed under State Law or Federal Law

by the Kentucky Court of Appeals or by

the Kentucky Supreme Court. Both of

these Courts have declined

discretitionary review in this case and

thereby continue to allow Kentucky

District Courte to reduce jury trial

calenders by practicing their game of

"Don’t Tell - Don’t Ask". For these

19

reasons a writ of certiorari should be

issued to review the judgment of the

Kenton County, Kentucky Circuit Court.

Respectfully submitted,

Jhs dd

W. Robert Lotz

120 West Fifth Stree

Covington, KY 41011

(606) 491-2206

/

Attorney for Petitioner

20

FILE STAMPED:

ENTERED KENTON CIRCUIT COURT:

JANUARY 28, 1993

COMMONWEALTH OF KENTUCKY

KENTON CIRCUIT COURT

THIRD DIVISION

CASE NO. 92-xx-00048

CHARLES LADWIG APPELLANT

vs.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM KENTON DISTRICT COURT

HON. C. DONALD WELLS, SPECIAL JUDGE

CASE NO. 92-M-00142

ORDER AND OPINION AFFIRMING

This is a criminal appeal filed by

Charles Ladwig, Defendant below, from a

Judgment and Sentence of the Kenton

District Court entered November >

1992, which found him guilty of

violating KRS 508.030, Assault in the

Fourth Degree, and which sentenced him

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ated: Aiea ee Patarueiniets

to 100 days in jail and a $500.00 fine.

The 96 days in jail were probated and

he was ordered to spend 84 hours in

jail, and to perform 50 hours of

community service, and he was placed on

probation for two (2) years, supervised

for three (3) months, to pay the costs

of supervision, and to pay $17.50 per

day for the four (4) days in jail, and

to initiate no contact or communication

with Mark Modlin.

his Appellant’s first ground on

appeal is that the record does not

contain a knowing and voluntary waiver

of the right to a trial by jury by the

Appellant. That RCr 9.26 (1) and KRS

29A.270 (1) require a jury trial in the

Appellant’s case. That since the

Appellant was not tried by a jury, and

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since he did not waive his right to a

jury trial, this case should _ be

remanded for a jury trial.

RCr 9.26 (1) states that cases

required to be tried by a jury shall be

so tried unless waived.

KRS 29A.270 (1) states that

defendants shall have the right to a

jury trial in all criminal

prosecutions, in circuit and district

court. The defendant may request a

jury trial at any time prior to the

time his case is called for trial.

The Appellant was represented by

an attorney at all stages of these

proceedings. He never requested a jury

trial. He announced ready for trial at

the call of his case for trial. With

the Appellant’s concurrence, he was

3a

|

tried by the Court and was_ found

guilty. He cannot complain because the

results of the bench trial were not to

his advantage.

2. Appellant’s next ground of

appeal is that the evidence presented

at his trial was insufficient to

support a finding that he intended to

cause physical injury to Mark Modlin,

which is an essential element of

Assault in the Fourth Degree.

The evidence heard by the Trial

Court was sufficient to support the

conviction by a finding that’ the

Appellant caused physical injury to the

victim,

3. Appellant’s final ground of

appeal is that the Trial Court erred in

overruling Appellant’s request to

4a

a oa etites:

participate in the Kenton County

Diversion Program.

According to the rules of the

Program, the Appellant was not eligible

to participate therein.

ORDER

IT IS, THEREFORE, ORDERED by the

Court that the Judgment of the Kenton

District Court is affirmed.

January 28, 1993.

/s/ Daniel J. Goodenough

DANIEL J. GOODENOUGH, JUDGE

KENTON CIRCUIT COURT

THIRD DIVISION

cc: Hon. Stephen P. Huddleston,

Special Prosecutor

Hon. Robert Lotz,

For Appellant

Hon. C. Donald Wells,

Special Judge

Kenton District Court Clerk

5a

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

93-CA-517-D

CHARLES LADWIG MOVANT

Vv. ON MOTION FOR

DISCRETIONARY REVIEW

FROM KENTON CIRCUIT COURT

ACTION NO. 92-x-48

COMMONWEALTH OF KENTUCKY RESPONDENT

zx kkk kk kkk it

ORDER DENYING DISCRETIONARY REVIEW

BEFORE: LESTER, Chief Judge;

EMBERTON and WILHOIT, Judges

Having considered the motion for

discretionary review and the response

thereto, and being otherwise

sufficiently advised, the Court ORDERS

that the motion be, and it is hereby

DENIED.

ENTERED: April 8, 1993

/s/ Charles B. Lester

JUDGE, COURT OF APPEALS

SUPREME COURT OF KENTUCKY

93-SC-307-D

(93-CA-517-D)

CHARLES LADWIG MOVANT

Vv. KENTON CIRCUIT COURT

92-x-48

COMMONWEALTH OF KENTUCKY RESPONDENT

ORDER DENYING DISCRETIONARY REVIEW

The motion for review of the

decision of the Court of Appeals is

denied.

ENTERED August 25, 1993

/s/ Robert F. Stephens

CHIEF JUSTICE

DIVISION

CASE NUMBER __

COMMONWEALTH OF KENTUCKY PLAINTIFF

vs

DEFENDANT

MOTION FOR JURY TRIAL

COMES NOW THE DEFENDANT, BY AND

THROUGH COUNSEL, AND RESPECTFULLY MOVES

THIS COURT FOR A TRIAL BY JURY IN THE

AFOREMENTIONED MATTER.

ATTORNEY FOR THE DEFENDANT

NOTICE

PLEASE TAKE NOTICE THAT THIS

MATTER WILL BE ON FOR HEARING AT THE

COURT’S CONVENIENCE.

8a

uM P : : \

E bs As a) 7 va ek ee,

OF ee ee ee ae ae ae Oe Cee OL ee ee ae ee ee Pee at eee :

CERTIFICATION

I, HEREBY CERTIFY THAT I HAVE SENT

A TRUE COPY OF THE JURY DEMAND AND

NOTICE TO HON. JON ELFERS, COUNTY

ATTORNEY, 3RD FLOOR, COUNTY BLDG.,

COV., KY, THIS THE DAY OF

, 19 ‘

9a

1.15 INITIAL APPEARANCE OF DEFENDANT

CHARGED WITH A MISDEMEANOR OR VIOLATION

OFFENSE |

he Ask the defendant:

a. name

b. address

Ge date of birth

2. Advise the defendant:

a. of the charge against him/her

(RCr 3.05)

b. of right to remain silent

(RCr 3.05)

Cc. that any statement made by

him/her may be used against

them (RCr 3.05)

d. that defendant has a right to

a trial (RCr 3.05)

e. of defendant’s right to have

counsel (RCr 3.05)

1. KENTUCKY DISTRICT JUDGES BENCHBOOK,

Published by AAAA Administrative Office

of the Courts, Frankfort, Kentucky.

Revised December 1, 1989.

10a

Determine whether the charge

equires that defendant has he

assistance of counsel:

if the offense is punishable by a

fine in excess of $500 or by

confinement (KRS 31.100(4)(b)),

defendant must be advised of right

to appointed counsel if defendant

is a "needy person" (KRS 31.110).

A "needy person" means a person

who is unable to provide for the

payment of an attorney and all

other necessary expenses of

representation. KRS 31.100(3).

NOTE: Concerning the appointment

of counsel, see 1.20.

appoint counsel where appropriate.

Ask the defendant how he/she

intends to plead:

a. if guilty, proceed to

section on Guilty Pleas,

1.25.

b. if not guilty, set a trial

date. Defendant must be

given opportunity to consult

counsel. (RCr 3.07, 3.05,

9.02).

Review Conditions of Release if

defendant remains in custody (RCr

3.05).

lla