[Cite as State v. Palacios, 2017-Ohio-8674.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-16-071

        Appellee                                   Trial Court No. CRB 1600046AB

v.

Ashley A. Palacios                                 DECISION AND JUDGMENT

        Appellant                                  Decided: November 22, 2017

                                               *****

        Wayne R. Nicol, City of Vermilion Prosecuting Attorney, for appellee.

        Jack W. Bradley and Jason S. Harless, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Ashley Palacios, appeals the December 2, 2016 judgment of the

Vermilion Municipal Court which, following a trial to the court where she was found

guilty of domestic violence and child endangering, sentenced her to 180 days in jail, 150

days suspended, probation, and a fine. For the reasons that follow, we reverse.
       {¶ 2} On February 25, 2016, a complaint was filed against appellant charging her

with two first-degree misdemeanors: one count of endangering children, in violation of

R.C. 2919.22(B)(1), and one count of domestic violence, in violation of R.C. 2919.25(A).

Appellant entered not guilty pleas to the charges.

       {¶ 3} On April 7, 2016, the matter was set for a jury trial commencing on May 25,

2016. Appellant filed a written motion for a jury trial on May 18, 2016. The state

opposed the motion arguing that pursuant to Crim.R. 23(A), the motion was untimely

and, thus, appellant’s right to a jury trial had been waived. The court granted the state’s

motion and the matter proceeded to a trial to the court.

       {¶ 4} On May 31, 2016, the trial court entered its judgment finding appellant

guilty of the charges. On June 6, 2016, after retaining new counsel, appellant filed a

motion for a new trial arguing that her attorney was ineffective by failing to properly

request a jury trial, failing to request a competency hearing for the five-year-old child-

victim, and failing to subpoena various defense witnesses. Appellant further argued that

the court had been made aware of her request for a jury trial weeks prior and had ordered

the clerk to call potential jurors; thus, the purpose of Crim.R. 23, to prevent delay and

potential prejudice to the state, was not offended.

       {¶ 5} In response, the state argued that ineffective assistance of counsel was not a

proper basis for a new trial under Crim.R. 33. The state disputed appellant’s additional

arguments.




2.
       {¶ 6} On August 24, 2016, the trial court denied the motion. As to the request for

a jury trial, the court found that the ten-day written notice requirement in Crim.R. 23 was

mandatory. The court further rejected appellant’s ineffective assistance of counsel claim

finding that appellant presented no showing of a reasonable probability that she would

not have been convicted by a jury. Finally, the court found that the statements made by

the child victim to his pediatrician were an exception to the hearsay rule under Evid.R.

803(4), irrespective of whether the child has been deemed competent to testify.

       {¶ 7} By agreement of the state, appellant was sentenced on the domestic violence

charge only to 180 days in jail with 150 days suspended, placed on probation, and

ordered to pay a fine. This appeal followed with appellant raising four assignments of

error for our review:

              First Assignment of Error: The trial court committed a plain error

       when failing to conduct an inquiry into the competency of the complaining

       witness due to his age.

              Second Assignment of Error: The trial court committed a prejudicial

       error when permitting testimonial hearsay evidence to be admitted without

       proper inquiry into the facts surrounding the testimony.

              Third Assignment of Error: Ms. Palacios was deprived of her

       constitutionally guaranteed right to the effective assistance of counsel by

       trial counsel’s deficient performance.




3.
                 Fourth Assignment of Error: The trial court erred when it denied the

       defendant’s motion for a new trial.

       {¶ 8} We will address appellant’s fourth assignment of error as it is dispositive.

Appellant argues that the trial court erred when it denied her motion for a new trial.

Appellant claims she is entitled to a new trial under Crim.R. 33(A) which provides, in

relevant part:

                 (A) Grounds. A new trial may be granted on motion of the

       defendant for any of the following causes affecting materially his

       substantial rights:

                 (1) Irregularity in the proceedings, or in any order or ruling of the

       court, or abuse of discretion by the court, because of which the defendant

       was prevented from having a fair trial;

                 ***

                 (3) Accident or surprise which ordinary prudence could not have

       guarded against;

                 (4) That the verdict is not sustained by sufficient evidence or is

       contrary to law. If the evidence shows the defendant is not guilty of the

       degree of crime for which he was convicted, but guilty of a lesser degree

       thereof, or of a lesser crime included therein, the court may modify the

       verdict or finding accordingly, without granting or ordering a new trial, and

       shall pass sentence on such verdict or finding as modified;




4.
              (5) Error of law occurring at the trial;

              (6) When new evidence material to the defense is discovered, which

       the defendant could not with reasonable diligence have discovered and

       produced at the trial. When a motion for a new trial is made upon the

       ground of newly discovered evidence, the defendant must produce at the

       hearing on the motion, in support thereof, the affidavits of the witnesses by

       whom such evidence is expected to be given, and if time is required by the

       defendant to procure such affidavits, the court may postpone the hearing of

       the motion for such length of time as is reasonable under all the

       circumstances of the case. The prosecuting attorney may produce affidavits

       or other evidence to impeach the affidavits of such witnesses.

       {¶ 9} A trial court’s denial of a motion for new trial is reviewed under an abuse of

discretion standard. State v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54 (1990). An

abuse of discretion implies an unreasonable or arbitrary attitude of the trial court.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 10} In addition to various claims of ineffective assistance of trial counsel,

appellant’s motion for new trial also argued that her rights were violated when the trial

court refused to allow her case to proceed to a jury trial. Crim.R. 23(A) provides:

              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




5.
       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.

       {¶ 11} A criminal defendant’s right to a jury trial in Ohio is secured by Article I,

Section 10 of the Ohio Constitution and R.C. 2945.17. However, as Crim.R. 23(A)

states, a defendant charged with a petty offense, or one with a potential period of

incarceration of six months or less, may have his or her right to a jury trial conditioned on

the timely filing of a written jury demand. This court and courts in Ohio have

consistently held that these requirements are mandatory and failure to comply constitutes

a waiver of a jury trial. This is so in order to ensure that “criminal defendants do not wait

until they have reached the courthouse steps on the day of trial to demand a jury. This

would result in undue delay and expense and possibly prejudice the state.” State v.

Burton, 39 Ohio App.3d 151, 151, 530 N.E.2d 955 (6th Dist.1988). However, “[w]here a

demand for a jury trial is made far enough in advance of the actual trial date so as to

remove these concerns of delay and prejudice, it is improper to deny a jury trial.” Id. at

151-152, citing State v. Edwards, 4 Ohio App.2d 261, 208 N.E.2d 758 (4th Dist.1965).

Accord, State v. Sims, 7th Dist. Mahoning No. 14 MA 0027, 2016-Ohio-5316; State v.

Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-1437.




6.
       {¶ 12} Finding that the rule’s objective was not frustrated absent a timely, written

jury request, the Eleventh Appellate District vacated a misdemeanor conviction and

remanded the matter for a jury trial. State v. Palo, 11th Dist. Ashtabula No.

2002-A-0095, 2005-Ohio-6906. In Palo, at the initial pretrial the court asked the

defendant whether he had filed a jury demand; defense counsel responded negatively but,

when asked, the defendant stated that he wanted a jury trial. During a status conference

the day before trial, it was discovered that a written request for a jury trial had not been

filed; over objection, the court put on the docket that the case would be tried to the bench.

The defendant, then pro se, filed a written jury demand the day of trial which was denied.

Id. at ¶ 21.

       {¶ 13} Reversing the denial of the defendant’s jury trial request, the appellate

court noted:

               While Crim.R. 23 requires a written jury demand in petty offense

       cases, here the trial court put on an order stating the matter was to be set for

       jury trial. The trial court then sent two notices to this effect. Appellant had

       the right to rely on the trial court’s order. Further, the order was put on in

       response to appellant’s oral representation at the August 19, 2002 pretrial

       that he wanted a jury trial. The trial court acknowledged this and stated,

       “All right, you’ll have your jury trial.” Thus, we conclude the trial court

       erred and denied appellant his right to a jury trial under the facts of this

       case. By so holding, we do not imply that an oral demand is sufficient




7.
          under Crim.R. 23. We merely hold that a trial court is bound by its own

          order stating a matter will be set for jury trial, absent a proper waiver by the

          defendant. Here, there was no such waiver. Id. at ¶ 32.

Accord, State v. Diroll, 11th Dist. Portage No. 2006-P-0110, 2007-Ohio-6930; State v.

Long, 4th Dist. Ross No. 1184, 1986 Ohio App. LEXIS 7673 (June 11, 1986) (Grey, J,

dissenting). But see State v. Collier, 2d Dist. Clark Nos. 2006 CA 102, 2006 CA 104,

2007 Ohio-6349, ¶ 14-46 (although the court, sua sponte, set the case for a jury trial the

court distinguished Palo, supra, noting that the defendant repeatedly and adamantly

expressed that he did not want a jury trial).

          {¶ 14} In the present case, the record reveals that the matter was initially set for a

jury trial at the April 5, 2016 pretrial. The order was journalized on April 7, 2016 and

stated:

                 This matter has been set for a jury trial on May 25, 2016 at 8:30 a.m.

          in the Vermilion Municipal Court. A final pretrial will be held on this

          matter on May 17, 2016 at 3:00 p.m. Counsel should file proposed jury

          instruction no later than the date of the final pretrial and all pretrial motions

          must be filed in accordance with the time frames contained in Ohio

          Criminal Rule 12. No plea bargain agreement shall be accepted after the

          final pretrial, except where the interests of justice require otherwise.




8.
              The Clerk is hereby ordered to pull 50 names from the jury wheel

       and issue summons to be served. Costs assessed.

       {¶ 15} On the same date, the court filed a scheduling order for discovery, jury

instructions, witness lists, etc., which also referenced the May 25, 2016 jury trial. On

May 6, 2016, the court filed an order instructing the clerk of courts to pull 20 additional

names from the jury wheel.

       {¶ 16} Appellant filed her written motion for a jury trial on May 18, 2016. The

next day, the state filed its proposed jury instructions as well as a motion in limine

requesting that appellant’s counsel be prohibited from referencing the grand jury

proceedings in the presence of the jury. On the same date and at the same time, the state

filed an objection to appellant’s request for a jury trial arguing that it was filed less than

ten days before the trial date in contravention of Crim.R. 23(A). On May 19, 2016, the

trial court found the objection well-taken; the case was then tried to the court.

       {¶ 17} Reviewing the proceedings below, it is clear that appellant’s counsel failed

to file her request for a jury trial within the ten-day window. We believe that the best

practice would have been insisting on a written request for a jury trial prior to the court

scheduling the case as such. Thus, because the court set the matter for a jury trial and the

parties relied upon and prepared the matter for a jury trial, the state was not prejudiced by

the untimely filing of appellant’s Crim.R. 23(A) motion. Accordingly, the court abused

its discretion when it denied appellant’s motion for a new trial on this basis. Appellant’s

fourth assignment of error is well-taken.




9.
       {¶ 18} Based on our disposition of appellant’s fourth assignment of error, we find

that appellant’s first, second, and third assignments of error are moot and not well-taken.

       {¶ 19} On consideration whereof, we find that appellant was prejudiced or

prevented from having a fair proceeding and the judgment of the Vermilion Municipal

Court is reversed and the matter is remanded for a jury trial. Pursuant to App.R. 24,

appellee is ordered to pay the costs of this appeal.


                                                                        Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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