             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

               No. 1603

        September Term, 2013


         DUSTIN MEREDITH

                   v.

       STATE OF MARYLAND




   Krauser, C.J.,
   Zarnoch,
   Raker, Irma S.
          (Retired, Specially Assigned),

                   JJ.


          Opinion by Raker, J.


         Filed: June 26, 2014
       Dustin Meredith, appellant, was convicted in the Circuit Court for Caroline County

of theft scheme between $1,000 and $10,000 and six counts of theft. Before this Court, he

presents one issue for our review: whether the trial court erred by failing to make a finding

on the record that appellant voluntarily waived his right to a jury trial as required by Rule 4-

246(b).

       We shall hold that the issue has not been preserved for our review and shall affirm.




                                               I.

       Appellant was charged by criminal information in the Circuit Court for Caroline

County with the offenses of first degree burglary, third degree burglary, fourth degree

burglary, theft scheme between $1,000 and $10,000 and eleven counts of theft.                He

proceeded to trial before the Circuit Court for Caroline County, after purportedly waiving a

jury trial. Pursuant to Maryland Code (2002, Repl. Vol. 2012) § 7-104 of the Criminal Law

Article, the court convicted appellant of theft scheme and six counts of theft. The court

acquitted appellant of all the other charges. The court sentenced appellant to a term of

incarceration of ten years for theft scheme with all but seven years suspended and five years

probation.1

       Inasmuch as the sole issue on appeal relates to whether the trial judge complied with

Rule 4-246 and the adequacy of a waiver of the right to a jury trial, we will dispense with the




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           The court merged the theft charges for sentencing purposes.
underlying facts of the crimes and consider only the facts related to the jury trial waiver.

Appellant’s purported waiver of his right to a jury trial occurred on July 23, 2013, as follows:

              “THE COURT: All right. [Appellant], um, [Defense Counsel]
              just told me that you wish to waive your right to a jury trial.
              What’s your date of birth?

              [APPELLANT]: 6/29/89

              THE COURT: How old are you today?

              [APPELLANT]: 24.

              THE COURT: How much education have you had?

              [APPELLANT]: I have a high school diploma.

              THE COURT: Can you read and write?

              [APPELLANT]: Yes.

              THE COURT: Can you speak and understand English?

              [APPELLANT]: Yes.

              THE COURT: Are you under the influence of any substance that
              might affect your judgment?

              [APPELLANT]: No.

              THE COURT: Do you have any disability that might affect your
              judgment?

              [APPELLANT]: No.

              THE COURT: You have a right to be tried either by a judge or
              a jury in this case. If you, if you were to be tried by a judge, that
              would be one person who would have to be satisfied beyond a
              reasonable doubt that you were guilty in order to find you guilty.

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              If you chose a jury you and your lawyer and the State’s Attorney
              would pick 12 people from the voter rolls and the driver rolls of
              Caroline County. They would represent a cross-section of the
              community and each of the 12 would have to be satisfied beyond
              a reasonable doubt that you were guilty in order to find you
              guilty. All 12 would have to agree you were not guilty in order
              to find you not guilty. And if they cannot agree, that would be
              a hung jury and the State could try you over until, until you were
              found not guilty, not guilty or guilty. You’ve indicated that you
              wish to waive your right to a jury trial, which means you are
              selecting a judge trial if you go to trial. Is that correct?

              [APPELLANT]: Yes, it is.

              THE COURT: And is that, is that decision being freely and
              voluntarily made by you?

              [APPELLANT]: Yes it is.

              THE COURT: All right, I’m going to rule that you have
              knowingly and intelligently waived your right to a jury trial.
              Thank you very much.”

Appellant did not object to the court’s ruling and proceeded to trial before the court.

       As indicated, the court convicted appellant of theft scheme and six counts of theft and

he was sentenced for the theft scheme charge.

       This timely appeal followed.




                                             II.

       Appellant argues that the court erred by failing to announce on the record that he

voluntarily waived his right to a jury trial. He argues that the court’s ruling that he

“knowingly and intelligently” waived his right is insufficient to satisfy Maryland Rule 4-

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246(b) without an explicit finding of voluntariness. He contends that his failure to object to

the court’s ruling does not preclude appellate review.

       The State maintains that the court complied with Rule 4-246(b). The State concedes

that the Rule requires strict compliance, but argues that, in the instant matter, the court did

find that appellant made a voluntary waiver. The State notes that the court, before making

its final ruling, asked appellant whether his decision to elect a bench trial was “freely and

voluntarily” made to which appellant responded in the affirmative. As such, the State

concludes, it would be perverse to give appellant a “windfall benefit of a new trial” when the

record clearly indicates that the court ensured that appellant knowingly and voluntarily

waived his right to a jury trial.




                                             III.

       We turn to appellant’s argument that the trial court erred by failing to announce on the

record a determination that he voluntarily waived his right to a jury trial. Maryland Rule 4-

246(b) provides, in pertinent part, as follows:

               “A defendant may waive the right to a trial by jury at any time
               before the commencement of trial. The court may not accept the
               waiver until, after an examination of the defendant on the record
               in open court conducted by the court, the State’s Attorney, the
               attorney for the defendant, or any combination thereof, the court
               determines and announces on the record that the waiver is made
               knowingly and voluntarily.” (Emphasis added).




                                              4
The waiver of a jury trial is a two-step process. The trial judge must determine that the

waiver is knowing and voluntary. And the trial judge must make that finding on the record.

       In Valonis & Tyler v. State, 431 Md. 551, 567, 66 A.3d 661, 670 (2013), the Court of

Appeals left no doubt that the trial judge must make a determination, on the record, that the

defendant’s waiver is both knowing and voluntary. In order to guide the trial courts, the

Court of Appeals in that consolidated case exercised its discretion under Rule 8-131 and

addressed appellants’ argument even though there was no contemporaneous objection lodged

in the trial court. The Court did so “to review the merits . . . due to our perception of a

recurring problem—namely, the failure of trial judges to follow Rule 4-246(b)—and to

further encourage trial judges to adhere to the letter of the Rule.” Nalls & Melvin v. State,

_ Md. _, slip op. at 15, (2014). Post Valonis, there can be no doubt that, even though no

specific litany is required, the record must reflect that the trial judge explicitly found that the

defendant waived a jury both knowingly and voluntarily.

       What was less clear following Valonis was whether an appellate court would review

a jury trial waiver absent a contemporaneous objection in the trial court. In Nalls & Melvin

v. State, the Court of Appeals spoke loud and clear that a contemporaneous objection in the

trial court is a necessary predicate for appellate review. After exercising its discretion under

Rule 8-131 to review the trial court’s compliance with Rule 4-246(b), the Court stated as

follows:

               “Going forward, however, the appellate courts will continue to
               review the issue of a trial judge’s compliance with Rule 4-

                                                5
              246(b) provided a contemporaneous objection is raised in the
              trial court to preserve the issue for appellate review.”

Id. (Emphasis added).

       In the case sub judice, appellant made no objection below to the waiver procedure, to

its content, or to the trial court’s announcement as to the “knowingly and intelligently” made

waiver of his right to a jury trial. His challenge to the effectiveness of his waiver is not

preserved for our review and is not properly before this Court. We shall not exercise our

discretion under Rule 8-131 to consider the issue.




                                                  JUDGMENTS OF THE CIRCUIT
                                                  COURT FOR CAROLINE COUNTY
                                                  AFFIRMED. COSTS TO BE PAID BY
                                                  APPELLANT.




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