[Cite as State v. Williams, 2011-Ohio-2231.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 10CA000019
R. LEROY WILLIAMS                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Mount Vernon
                                                   Municipal Court, Case No. 10CRB598

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 10, 2011




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM D. SMITH                                   CHRISTOPHER W. ZUERCHER
LAW DIRECTOR                                       305 East High Street
BY: P. ROBERT BROEREN, JR.                         Mount Vernon, OH 43050
5 north Gay Street, Ste. 222
Mount Vernon OH 43050
[Cite as State v. Williams, 2011-Ohio-2231.]


Gwin, P.J.

        {¶1}     Defendant R. Leroy Williams appeals a judgment of the Municipal Court of

Mount Vernon, Knox County, Ohio, which convicted him of criminal trespass in violation

of Section 541.05 of the Ordinances of the City of Mount Vernon. Appellant assigns a

single error to the trial court:

        {¶2}     “THE TRIAL COURT ERRED IN DENYING APPELLANT’S DEMAND

FOR A JURY TRIAL.”

        {¶3}     The record indicates appellant was arraigned on July 16, 2010 and pled

not guilty to one count of criminal trespass, a fourth degree misdemeanor, and

disorderly conduct, a minor misdemeanor. [The disorderly conduct conviction is not a

part of this appeal.] The court set the matter for pre-trial on August 4, 2010, and for trial

to the bench on August 18, 2010. Appellant signed a time waiver and requested a

continuance of the August 18 trial on August 13, 2010, because counsel had not

received the entire discovery requested, and he required more time to review the

discovery and/or prepare for trial. The court re-set the matter for September 15, 2010.

        {¶4}     On September 8, 2010, appellant filed a demand for a jury trial and a

motion to continue the trial. The court overruled the motions, and appellant’s counsel

again raised the matter on September 15th, prior to the trial. Counsel conceded the jury

demand was untimely, but asserted case law permitted the court to consider it unless

there is some prejudice to the State or some compelling reason why the court could not

grant the request for a jury.              Appellant’s counsel asserted appellant had always

understood that he was going to have a jury trial, and it was counsel‘s error that the
Knox County, Case No. 10CA000019                                                             3


demand was not filed in a timely manner. The court again overruled the motion and the

trial proceeded to the bench.

       {¶5}   Crim. R. 23 states in pertinent part:

       {¶6}    “(A) Trial by jury

       {¶7}   In serious offense cases the defendant before commencement of the trial

may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such

waiver may also be made during trial with the approval of the court and the consent of

the prosecuting attorney. 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. Failure to demand a jury trial as provided in this subdivision is a

complete waiver of the right thereto.”

       {¶8}   Appellant argues Ohio courts have not interpreted the statutory time limit

strictly. For example, appellant cites us to State v. Burton (1988), 39 Ohio App. 3d 151,

530 N.E. 2d 955, wherein the court appointed a public defender to represent the

defendant, but the defendant waited until four days before the trial to contact the Public

Defender’s office. Three days before the scheduled trial, the public defender filed a

demand for jury trial and a motion for continuance. The court sustained the motion for

continuance but did not rule on the jury demand. Subsequently, the court continued the

matter a second time on defendant’s motion, and then overruled the demand for jury

trial on the ground that it was not timely. The Court of Appeals for the Sixth District

found the purpose of the Rule was to ensure defendants did not wait until the day of trial
Knox County, Case No. 10CA000019                                                           4


to demand a jury because this would result in undue delay and expense and possibly

prejudice the State. The court found the appellant made his demand for jury trial far

enough in advance of the actual trial date, so as to alleviate any concerns of delay or

prejudice. The court concluded the trial court erred in overruling the motion for a jury

trial.

         {¶9}   Likewise in State v. Scott (1997), 123 Ohio App.3d 331, 704 N.E.2d 265,

the notice the defendant’s case was set for trial was not filed until three days prior to the

trial date. The defendant had made an oral jury demand but had not submitted a written

request. He offered to sign one the morning of the trial and the trial court refused to

accept it. The Court of Appeals for the Second District held the court should have

afforded the defendant a jury trial because it was not the defendant’s fault the jury

demand was untimely. These cases are distinguishable from the case at bar.

         {¶10} Appellant also cites us to State v. Tackett, Jackson App. No. 04CA12,

2005-Ohio-1437. In Tackett, the pro se defendant was charged with domestic violence.

At arraignment defendant viewed a video recording advising him of his rights, and he

stated he understood them. He did not file a written request for a jury trial. The record

revealed the defendant was actually uncertain about whether he had a right to a jury

and how to obtain one, but when he appeared before the trial court, it did not answer his

questions. The Court of Appeals for the Fourth District found on these facts, the court

could not presume appellant had waived his right to a jury trial. This case is also

distinguishable from the case at bar.

         {¶11} Appellant argues the State made no allegation it would be prejudiced or

any witnesses would be inconvenienced if the court continued the matter. Appellant
Knox County, Case No. 10CA000019                                                           5


asks us to find that the motion, although untimely, was nevertheless made sufficiently in

advance of the actual trial date, and thus, the court should have afforded him a jury trial.

       {¶12} Appellant received one continuance of the trial, and had the court granted

the request for jury trial the matter would have continued it a second time.

       {¶13} We find the trial court did not err in denying the second motion for

continuance and jury demand because the demand was untimely, and appellant had

already received one continuance of the matter.

       {¶14} The assignment of error is overruled.

       {¶15} For the foregoing reasons, the judgment of the Municipal Court of Mount

Vernon, Knox County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur




                                               _________________________________
                                               HON. W. SCOTT GWIN

                                               _________________________________
                                               HON. WILLIAM B. HOFFMAN

                                               _________________________________
                                               HON. PATRICIA A. DELANEY
WSG:clw 0426
[Cite as State v. Williams, 2011-Ohio-2231.]


                 IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
R. LEROY WILLIAMS                                 :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10CA000019



        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Mount Vernon, Knox County, Ohio, is affirmed.

Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN

                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
