         [Cite as State v. Taylor, 2011-Ohio-4648.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-110062
                                                          TRIAL NO. B-1007054
        Plaintiff-Appellee,                           :
                                                          O P I N I O N.
  vs.                                                 :

DONALD TAYLOR,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 16, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Thomas Hodges, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     Defendant-appellant Donald Taylor was indicted and tried to the

bench for one count of kidnapping in violation of R.C. 2905.01(A)(3) and one count

of abduction in violation of R.C. 2905.02(A)(2), both felonies. Following the state’s

case-in-chief, Taylor moved for a judgment of acquittal pursuant to Crim.R. 29(A).

The trial court granted the motion with respect to the kidnapping charge, but not the

abduction charge. The court found Taylor not guilty of abduction, but guilty of the

lesser-included offense of unlawful restraint in violation of R.C. 2905.03, a third-

degree misdemeanor.

       {¶2}     On appeal, Taylor raises two assignments of error. In the first, he

argues that his conviction was contrary to the manifest weight of the evidence, and in

the second, he argues that the trial court erred in holding a bench trial without

including a jury waiver in the record. We address the second assignment of error

first because it implicates the trial court’s exercise of jurisdiction.

       {¶3}     Section 5, Article I, of the Ohio Constitution guarantees that the “right

of trial by jury shall be inviolate * * * .” Likewise, the Sixth Amendment to the United

States Constitution, made applicable to the states through the Fourteenth

Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed * * * .” State v. Lomax, 114 Ohio St.3d

350, 2007-Ohio-4277, 872 N.E.2d 279, ¶6, citing Duncan v. Louisiana (1968), 391 U.S.

145, 88 S.Ct. 1444.

       {¶4}     “In serious offense cases the defendant before commencement of the

trial may knowingly, intelligently and voluntarily waive in writing his right to a trial




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                      OHIO FIRST DISTRICT COURT OF APPEALS



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.” Crim.R. 23(A). Under R.C. 2945.05, a jury waiver must be “(1) in writing,

(2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made in open

court.” Lomax at ¶9. “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, 1996-Ohio-102, 658 N.E.2d 766, paragraph one of the syllabus

(emphasis added). See, also, State v. Pflanz (1999), 135 Ohio App.3d 338, 733 N.E.2d

1212 (holding that a trial court committed plain error in conducting a bench trial where

no jury waiver was filed and made part of the record).

       {¶5}      Although Taylor was ultimately convicted of only a petty offense, he was

indicted and tried to the bench on two serious offenses. See Crim.R. 2(C) and (D)

(defining “serious offense” as “any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months” and “petty offense”

as “a misdemeanor other than a serious offense”).         Thus, strict compliance with

R.C. 2945.05 was mandatory. Because, as the state concedes, no jury waiver was filed

and made part of the record in this case, the trial court lacked jurisdiction to hold a

bench trial. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992,

¶26 (explaining that the failure to comply with R.C. 2945.05 does not affect a trial

court’s subject-matter jurisdiction, but rather involves “error in the court’s exercise of

its jurisdiction”). For this reason, we sustain the second assignment of error.

       {¶6}      Because our disposition of the second assignment of error renders the

first assignment of error moot, we decline to address it. See App.R. 12(A)(1)(c);

Pflanz at 340.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}    Therefore, the judgment of the trial court is reversed and the cause is

remanded for further proceedings consistent with this opinion and the law.

                                               Judgment reversed and cause remanded.



D INKELACKER , P.J., and S UNDERMANN , J., concur.


Please Note:
       The court has recorded its own entry this date.




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