# Petition for Writ of Certiorari — Ladwig v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1191

## Text

|

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

Kentucky Statutory Provisions and

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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

2a

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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

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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

---

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