[Cite as State v. White, 2013-Ohio-5858.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JASON V. WHITE                               :       Case No. CT2013-0039
                                             :
        Defendant- Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the County Court, Case
                                                     No. CRB1300346



JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    December 26, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

MARIA N. KALIS                                       JESSICA G. FALLON
27 North 5th Street                                  713 South Front Street
Suite 201                                            Columbus, OH 43206
Zanesville, OH 43701
Muskingum County, Case No. CT2013-0039                                                      2

Farmer, P.J.

      {¶1}     On April 15, 2013, a criminal complaint was filed against appellant, Jason

White, charging him with one count of assault in violation of R.C. 2903.13. On May 1,

2013, a trial was set for May 24, 2013. Appellant filed a jury trial demand on May 2,

2013. A bench trial commenced on June 27, 2013. By sentencing entry filed June 27,

2013, the trial court found appellant guilty and sentenced him to two hundred hours of

community service.

      {¶2}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶3}     "THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONDUCT A

BENCH TRIAL WHEN APPELLANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY

WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO COMPLY WITH O.R.C.

§2945.05."

                                            II

      {¶4}     "APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL WHEN TRIAL COUNSEL FAILED TO (1) OBJECT

TO JOINDER OF THE CASES FOR TRIAL; (2) FILE A MOTION FOR SEVERANCE

AND (2) (SIC) INSTRUCT APPELLANT AS TO THIS 5TH AMENDMENT RIGHT

AGAINST SELF INCRIMINATION."

                                            III

      {¶5}     "THE TRIAL COURT PLAINLY ERRED BY VIOLATING APPELLANT'S

CONSTITUTIONAL RIGHTS TO A FULL AND FAIR TRIAL BY JURY."
Muskingum County, Case No. CT2013-0039                                                    3


                                             I


      {¶6}   Appellant claims the trial court erred in conducting a bench trial as

opposed to a jury trial. We agree.

      {¶7}   Crim.R. 23(A) states the following in pertinent part:



             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}   On May 1, 2013, a trial date was set for May 24, 2013. Appellant had filed

a jury demand on May 2, 2013; therefore, it was timely made.

      {¶9}   Before the commencement of the bench trial, the following discussion was

had between the trial court and defense counsel, Attorney Trafford Dick (T. at 5-6):



             THE COURT: (INAUDIBLE) - - and then on - - Mr. White has an

             assault, and it's six months in jail, a thousand dollars in fines if you

             reject the plea bargain. Who's Mr. White? Do you want to reject

             that plea bargain arrangement and take your chance on jail time?

             JASON WHITE: Yes, I do.
Muskingum County, Case No. CT2013-0039                                                     4


             THE COURT: All right. State ready to proceed?

             MS. KALIS: We are Your Honor. I'd just like to, for the record, in

             Mr. White's case, there was a request for a jury trial. I talked to Mr.

             Dick. I believe - - there's no - - not been a formal waiver, so I'd just

             like to address that on the record so we actually have that.

             THE COURT: Are you waiving that, Mr. Dick?

             MR. DICK: We - - we had - - I was actually just informed yesterday

             afternoon that he wanted to try this so I was - - had not filed a

             formal waiver.

             THE COURT: All right. But you are waiving?

             MR. DICK: Yes.

             THE COURT: Good enough. All right. State ready to proceed?



      {¶10} Appellant never filed a written withdrawal of his jury demand, and the trial

court did not specifically address appellant as to his withdrawal. R.C. 2945.05 governs

"Defendant may waive jury trial" and states the following:



             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. It shall be entitled in the court and cause, and in

             substance as follows: "I __________, defendant in the above
Muskingum County, Case No. CT2013-0039                                                       5


                cause, hereby voluntarily waive and relinquish my right to a trial by

                jury, and elect to be tried by a Judge of the Court in which the said

                cause may be pending. I fully understand that under the laws of

                this state, I have a constitutional right to a trial by jury."

                Such waiver of trial by jury must be made in open court after the

                defendant has been arraigned and has had opportunity to consult

                with counsel. Such waiver may be withdrawn by the defendant at

                any time before the commencement of the trial.



        {¶11} Without a written waiver, we conclude appellant did not relinquish his right

to a jury trial.      See, State v. Fish, 104 Ohio App.3d 236 (1st Dist.1995); State v.

Cheadle, 30 Ohio App.3d 253 (3rd Dist.1986). In addition, the state concedes the issue

in its brief at 10.

        {¶12} Assignment of Error I is granted.

                                                II, III

        {¶13} Based upon our decision in Assignment of Error I which necessitates a

new trial, we find these assignments to be moot.
Muskingum County, Case No. CT2013-0039                                             6


      {¶14} The judgment of the County Court of Muskingum County, Ohio is hereby

reversed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                       _______________________________
                                       Hon. Sheila G. Farmer




                                       _______________________________
                                       Hon. John W. Wise




                                       _______________________________
                                       Hon. Craig R. Baldwin


SGF/sg 1210
[Cite as State v. White, 2013-Ohio-5858.]


                 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JASON V. WHITE                                 :
                                               :
        Defendant-Appellant                    :       CASE NO. CT2013-0039




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

judgment of the County Court of Muskingum County, Ohio is reversed, and the matter is

remanded to said court for further proceedings consistent with this opinion. Costs to

appellee.




                                               _______________________________
                                               Hon. Sheila G. Farmer




                                               _______________________________
                                               Hon. John W. Wise




                                               _______________________________
                                               Hon. Craig R. Baldwin
