[Cite as State v. Van Dyne, 2016-Ohio-1476.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 15CA26
NANCY VAN DYNE                                 :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Cambridge
                                                   Municipal Court, Case No. 15CRB00155



JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            April 7, 2016

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM FERGUSON                                   RONALD YARWOOD
Cambridge Law Director                             42 North Phelps St.
By: Myra K. Scheurer                               Youngstown, OH 44503
150 Highland Ave., Ste. A
Cambridge, OH 43725
[Cite as State v. Van Dyne, 2016-Ohio-1476.]


Gwin, P.J.

        {¶1}    Appellant, Nancy Van Dyne [“Van Dyne”] appeals the October 14, 2015

Judgment Entry of the Cambridge Municipal Court, Guernsey County, Ohio denying her

motion to dismiss on Double Jeopardy grounds.

                                        Facts and Procedural History

        {¶2}    Van Dyne was charged with domestic violence, a misdemeanor of the first

degree in violation of R.C. 2919.25(A).           She was arraigned on February 13, 2015.

Subsequently a jury demand was filed on April 15, 2015.

        {¶3}    Van Dyne’s original defense counsel filed a waiver of jury trial on June 22,

2015; however only defense counsel signed the document.

        {¶4}    Prior to the start of the bench trial, Van Dyne and her attorney confirmed in

open court that Van Dyne was waiving her right to a jury trial and would proceed to a trial

to the court. Docket and Journal Entry, filed Oct. 14, 2015, ¶3. However, the trial judge

did not have Van Dyne execute a written waiver of her right to a jury trial. Id. The matter

proceeded to a bench trial on June 25, 2015. Van Dyne was found guilty of domestic

violence. The trial court scheduled the matter for a sentencing hearing.

        {¶5}    Prior to the sentencing hearing, Van Dyne hired new counsel and

objected to the bench trial on the ground that Van Dyne did not sign the written waiver to

a jury trial. The court subsequently vacated the guilty finding and again set the matter for

a jury trial.

        {¶6}    Prior to the second trial Van Dyne filed a motion to dismiss on the theory

that her right against double jeopardy had attached at the commencement of the bench

trial thereby preventing the second trial.
Guernsey County, Case No. 15CA26                                                          3


       {¶7}   By Judgment Entry filed October 14, 2015, the trial court overruled Van

Dyne’s motion.

                                       Assignment of Error

       {¶8}   Van Dyne raises one assignment of error,

       {¶9}   “I. THE TRIAL COURT IS PREVENTED FROM RETRYING APPELLANT,

BY JURY OR OTHERWISE, AS SHE HAS ALREADY BEEN PUT IN JEOPARDY AND

HAS ALREADY BEEN CONVICTED OF THE OFFENSE CHARGED MAKING ANY

SUBSEQUENT TRIAL VIOLATIVE OF THE FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION, SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION

AND R.C. 5924.44.”

                                             Analysis

       {¶10} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution protects criminal defendants

against multiple prosecutions for the same offense. This court has recognized that “[t]he

protections afforded by the two Double Jeopardy Clauses are coextensive.” State v.

Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State v.

Gustafson (1996), 76 Ohio St.3d 425, 432, 668 N.E.2d 435.

       {¶11} The principle behind the Double Jeopardy Clause “‘is that the State with all

its resources and power should not be allowed to make repeated attempts to convict an

individual for the alleged offense, thereby subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well

as enhancing the possibility that even though innocent he may be found guilty.’ ” State

v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green
Guernsey County, Case No. 15CA26                                                           4

v. United States (1957),355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199. The federal

and state constitutions' double jeopardy protection further guards citizens against

cumulative punishments for the “same offense.” State v. Moss (1982), 69 Ohio St.2d 515,

518.

       {¶12} Even so,

              “‘[T]he conclusion that jeopardy has attached,’ ” however, “‘begins,

       rather than ends, the inquiry as to whether the Double Jeopardy Clause

       bars retrial.’” [Serfass v. United States, 420 U.S. 377, 390, 95 S.Ct. 1055,

       43 L.Ed.2d 265 (1975)]. The remaining question is whether the jeopardy

       ended in such a manner that the defendant may not be retried. See 6

       LaFave § 25.1(g) (surveying circumstances in which retrial is and is not

       allowed).

Martinez v. Illinois, 572 U.S.__, 134 S.Ct. 2070, 2075, 188 L.Ed.2d 112(2014).

       R.C. 2945.05 and waiver of a jury trial.

       {¶13} R.C. 2945.05 provides,

              In all criminal cases pending in courts of record in this state, the

       defendant may waive a trial by jury and be tried by the court without a jury.

       Such waiver by a defendant, shall be in writing, signed by the defendant,

       and filed in said cause and made a part of the record thereof.

       {¶14} In the case at bar, the parties agree that Van Dyne did not execute a valid

waiver of her right to a jury trial. Accordingly, the trial court granted her motion, vacated

her conviction and scheduled the case for a jury trial.
Guernsey County, Case No. 15CA26                                                             5


       {¶15} Absent strict compliance with the requirements of R.C. 2945.05, a trial court

lacks jurisdiction to try the defendant without a jury. State v. Pless, 74 Ohio St.3d 333,

339, 1996-Ohio-102, 658 N.E.2d 766. The failure to comply with R.C. 2945.05 may be

remedied in a direct appeal from a criminal conviction. Id.

       Trial court jurisdiction.

       {¶16} The Ohio Supreme Court has recognized that the term “jurisdiction”

encompasses three distinct concepts: 1) subject matter jurisdiction; 2) jurisdiction over

the person; and 3) jurisdiction over the particular case. State v. Parker, 95 Ohio St.3d

524, 2002–Ohio–2833, 769 N.E.2d 846, ¶ 22 (Cook, J., dissenting), citing State v. Swiger,

125 Ohio App.3d 456, 462, 708 N.E.2d 1033(9th Dist. 1998), abrogated on other grounds,

100 Ohio St.3d 176, 2003-Ohio-5607. “The third category of jurisdiction encompasses

the trial court’s authority to determine a specific case within that class of cases that is

within its subject matter jurisdiction. * * * Where it is apparent from the allegations that

the matter alleged is within the class of cases in which a particular court has been

empowered to act, jurisdiction is present. Any subsequent error in the proceedings is

only error in the ‘exercise of jurisdiction,’ as distinguished from the want of jurisdiction in

the first instance.” Swiger, 125 Ohio App.3d at 462–463, 708 N.E.2d 1033. When a trial

court lacks subject matter jurisdiction its judgment is void; lack of jurisdiction of the

particular case merely renders the judgment voidable. Id., citing Russell v. Russell, 666

N.E.2d 943, 952(Ind.App.1996), vacated on other grounds, 682 N.E.2d 513.

       {¶17} Thus, any defect in failing to obtain a properly executed written jury trial

waiver is a defect in the trial court’s exercise of its jurisdiction and not a lack of subject

matter jurisdiction in the first instance. Consequently, if a trial court acts beyond its
Guernsey County, Case No. 15CA26                                                            6


statutory authority by trying a defendant without complying with the jury waiver

requirements of R.C. 2945.05, that defendant’s conviction may be voidable, but it is not

void ab initio for lack of subject matter jurisdiction. See, State ex rel. Jackson v. Dallman,

70 Ohio St.3d 261, 262, 638 N.E.2d 563(1994); State v. Franklin, 8th Dist. Cuyahoga No.

81426, 2003-Ohio-2649, ¶7.

       Van Dyne’s retrial is not barred by Double Jeopardy.

       {¶18} In the case at bar, the trial court recognized its error in failing to obtain a

valid waiver of her right to a jury trial from Van Dyne. The trial court corrected this error

itself, rather than waiting for appellate review to correct the mistake.

       {¶19} “Ordinarily, when one who has been convicted successfully seeks review of

that conviction there is no double jeopardy impediment to a new trial. United States v.

Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Francis v. Resweber, 329

U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); United States v. Ball, 163 U.S. 662, 16 S.Ct.

1192, 41 L.Ed. 300 (1896).

       {¶20} That a defendant’s conviction is overturned on collateral rather than direct

relief is irrelevant for purposes of double jeopardy since courts are empowered to grant

new trials, and it would be incongruous to compel greater relief for one who proceeds

collaterally than for one whose rights are vindicated on direct review. United States v.

Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448(1964); Thacker v. Slayton, 375

F.Supp. 1332, 1338 (D.C.Va.1974).

       {¶21} Because the trial court acted beyond its statutory authority by trying Van

Dyne without complying with the jury waiver requirements of R.C. 2945.05, Van Dyne’s

conviction was voidable. Accordingly, Double jeopardy does not bar her right to have a
Guernsey County, Case No. 15CA26                                                          7

jury trial on remand. State v. Pless, 74 Ohio St.3d 333, 340, 1996-Ohio-102, 658 N.E.2d

766; State ex rel. Jackson v. Dallman , 70 Ohio St.3d 261, 263, 638 N.E.2d 563(1994)

[“We note that our reversing the court of appeals, granting the writ and discharging

Jackson from prison does not preclude the common pleas court from trying Jackson again

on the robbery charge (with a jury, unless he waives it, and there is strict compliance with

R.C. 2945.05).”]; State v. Baghdady, 10th Dist. Franklin No. 05AP-142, 2005-Ohio-5092.

       {¶22} Van Dyne’s sole assignment of error is overruled.

       {¶23} The judgment of the Cambridge Municipal Court, Guernsey County, Ohio is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
