STATE OF MISSOURI,                           )
                                             )
       Plaintiff-Respondent,                 )
                                             )
vs.                                          )              No. SD35590
                                             )
LARRY DEAN PRESLEY,                          )              Filed: October 8, 2019
                                             )
       Defendant-Appellant.                  )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                     Honorable Thomas E. Mountjoy, Circuit Judge

AFFIRMED

       Larry Dean Presley (“Defendant”) signed a Waiver of Trial by Jury. The judge

who accepted the waiver of a jury trial subsequently recused. Defendant now complains

that the second judge who tried the case failed to ascertain that Defendant’s waiver was

knowing and voluntary. Defendant argues the waiver was supposed to be specifically for

the first judge. We find no error. The judgment is affirmed.

       Defendant signed the following waiver of trial by jury:

               The undersigned defendant waives his right to trial by jury in the
       above-styled cause and submits the trial thereof to the Court, sitting
       without a jury, whose findings shall have the force and effect of the
       verdict of a jury.


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               Defendant states this waiver is made after consultation with
       defendant’s attorney of record, and that no threats or promises were made
       to defendant to induce this waiver.
               Defendant prays the Court to assent to this waiver.
               Entered this 16th day of September, 2015.
                                             [signature of Defendant]
                                             Larry Presley, Defendant

The waiver was also signed by Defendant’s attorney and the trial court judge.

       The trial court adduced the following at a hearing:

              On the 16th day of September, 2015, the above cause came on
       before THE HONORABLE DAVID C. JONES, Judge of Division II, of
       the Thirty-First Judicial Circuit, at Springfield, Missouri.

              ....

       THE COURT: We’re calling in the State of Missouri vs. Larry Presley.
       We’ll have everyone introduce themselves, starting with the prosecution
       first.

       MR. ARNOLD: Joseph Arnold appearing for the State.

       MR. SHERWOOD: Devon Sherwood appearing for Mr. Presley, and Mr.
       Presley is present.

       THE COURT: And you’re Mr. Presley; is that right?

       THE DEFENDANT: Yes.

       THE COURT: Would you raise your right hand, Mr. Presley.
       (Defendant, Larry D. Presley, was duly sworn by the Court.)

       THE COURT: Thank you. Now, you’re Larry D. Presley; is that right?

       THE DEFENDANT: Yes, I am.

       THE COURT: You’re set for a jury trial starting on Monday; is that
       correct?

       THE DEFENDANT: Yes.
       THE COURT: And I have in front of me a waiver of jury trial that appears
       to have your signature on it. Is that your signature?

       THE DEFENDANT: That is my signature.



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        THE COURT: And you understand that you’d have the right to a jury trial
        before 12 individuals. The State would have the burden of proof, and you
        would be presumed innocent until such time, if ever, that the State proves
        its case beyond a reasonable doubt. Do you understand that?

        THE DEFENDANT: Yes.

        THE COURT: You also have the right, though, to waive that jury trial.
        And by executing this document, it indicates that’s what you want to do.
        Have you had enough time to talk with Mr. Sherwood about that?

        THE DEFENDANT: Yes.

Defendant contends the following language changed the general language above from the

waiver to a specific waiver of a jury trial only if Judge Jones tried the case:

        THE COURT: And do you believe it would be in your best interests to
        waive your jury trial rights and have it tried by me?

        THE DEFENDANT: Yes.

        THE COURT: Now, the same burden of proof will apply with me. They’ll
        have to prove it to me beyond a reasonable doubt, or I will find that they
        did not prove it. Do you understand that?

        THE DEFENDANT: Yes, I do.

The problem with Defendant’s argument is that at no time did he ever raise an objection

to the second judge trying the case. He did not object at the time of Judge Jones’ recusal,

at the pre-trial hearing, or at the trial itself. The first time Defendant raised the issue that

this was a “specific to Judge Jones” waiver is on appeal. As such, the only review

available to Defendant is plain error review. Our standard of review for plain error is

two-prong:

        First, this Court considers the facts and circumstances to facially
        determine if there was plain error—meaning “evident, obvious and clear”
        error. [State v. Jennings, 322 S.W.3d 598, 601 (Mo.App. S.D. 2010).] “In
        the absence of ‘plain error,’ we lack discretion to review claimed error
        under Rule 30.20.” [State v.] Bode, 125 S.W.3d [924, 927 (Mo.App. W.D.



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       2004)]. Only after identifying plain error, do we proceed to the second
       step of determining whether manifest injustice, or a miscarriage of justice
       resulted. Id. [Defendant] has the burden to establish the trial court
       committed plain error, and that there has been a manifest injustice or
       miscarriage of justice. State v. Robinson, 392 S.W.3d 545, 554 (Mo.App.
       S.D. 2013).

State v. Collins, 413 S.W.3d 689, 694 (Mo.App. S.D. 2013). We find no error.

       Defendant has not referred us to any Missouri authority, and we are not aware of

any Missouri authority, that supports Defendant’s claim that the colloquy between the

trial judge and a defendant can change a general waiver of a jury trial to a waiver specific

to a certain trial judge. In the absence of supporting authority, we find no error, plain or

otherwise, in this case. Additionally, even if Defendant had raised the issue by filing a

motion to withdraw his waiver, the standard of review for the denial of that motion would

be abuse of discretion. State v. Richardson, 313 S.W.3d 696, 700 (Mo.App. S.D. 2010).

There would be no abuse of discretion in this case. The conversation between the trial

court and Defendant establishes that the waiver was voluntary. At no time did Defendant

condition any of his answers concerning his waiver that the trial take place before Judge

Jones. Judge Jones did not talk in the third person (“trial court” instead of “me”) while

talking with Defendant. That colloquy does not result in the general waiver becoming a

narrow, judge-specific waiver. The fact that Defendant never complained prior to or

during the trial that Judge Jones was no longer hearing his trial supports the conclusion

that the waiver was a knowing and voluntary waiver of Defendant’s right to a jury trial.

Defendant’s point is denied.

       The judgment is affirmed.




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Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, P.J. – Concurs

William W. Francis, Jr., J. – Concurs




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