Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:10 PM CDT




                                                       - 743 -
                               Decisions of the Nebraska Court of A ppeals
                                     23 Nebraska A ppellate R eports
                                               STATE v. PEREZ-CRUZ
                                               Cite as 23 Neb. App. 743




                                        State of Nebraska, appellee, v.
                                          R aymundo M. Perez-Cruz,
                                                  appellant.
                                                   ___ N.W.2d ___

                                         Filed March 8, 2016.    No. A-15-273.

                1.	 Criminal Law: Jury Trials: Waiver. The right to trial by jury is per-
                    sonal and may be waived by a criminal defendant.
                2.	 Jury Trials: Waiver. In order to waive the right to trial by jury, a
                    defend­ant must be advised of the right to jury trial, must personally
                    waive that right, and must do so either in writing or in open court for
                    the record.
                3.	 Jury Trials: Waiver: Presumptions. The waiver of a right to jury
                    trial must be express and intelligent and cannot be presumed from a
                    silent record.
                4.	 Jury Trials: Waiver. Once trial by jury is knowledgeably and volun-
                    tarily waived, a defendant has no absolute right to withdraw or revoke
                    the waiver and demand a jury trial.
                5.	 Jury Trials: Waiver: Appeal and Error. Whether one accused of a
                    crime who has previously waived the right to trial by jury will be per-
                    mitted to withdraw the waiver is within the discretion of the trial court;
                    there is no error absent an abuse of discretion.
                6.	 Appeal and Error. An appellate court is not obligated to engage in an
                    analysis that is not necessary to adjudicate the case and controversy
                    before it.

                  Appeal from the District Court for Lancaster County:
               A ndrew R. Jacobsen, Judge. Reversed and remanded for a
               new trial.
                 Jim K. McGough, of McGough Law, P.C., L.L.O., for
               appellant.
                                - 744 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                        STATE v. PEREZ-CRUZ
                        Cite as 23 Neb. App. 743

   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
  Moore, Chief Judge, and Irwin and Inbody, Judges.
  Inbody, Judge.
                       INTRODUCTION
   Raymundo M. Perez-Cruz appeals his conviction and sen-
tence in Lancaster County District Court for first degree sexual
assault of a child. For the reasons that follow, we find that the
district court abused its discretion by overruling Perez-Cruz’
motion to withdraw the waiver of his right to a jury trial.
Perez-Cruz’ conviction and sentence are reversed, and the mat-
ter is remanded to the district court for a new trial.
                    STATEMENT OF FACTS
   On October 18, 2013, the State filed an information charg-
ing Perez-Cruz with one count of first degree sexual assault
of a child, a Class IB felony, in violation of Neb. Rev. Stat.
§ 28-319.01(2) (Cum. Supp. 2014) based upon allegations that
Perez-Cruz, who at that time was older than 25 years old, sub-
jected a victim, born in 1999, to sexual penetration.
   On January 30, 2014, Perez-Cruz came before the court for
purposes of entering a waiver of his right to a speedy trial and
right to a jury trial. Counsel for Perez-Cruz indicated that a
plea agreement might be reached with the State and requested
60 days to do so. The court advised Perez-Cruz of his right to
a speedy trial and right to a jury trial. Perez-Cruz indicated,
in open court, that he understood those rights and wished to
waive them both. The district court found that Perez-Cruz had
freely, voluntarily, knowingly, and intelligently waived his
right to a speedy trial and right to a jury trial. The district court
set the matter for entry of plea for April 2014.
   On May 5, 2014, Perez-Cruz filed a motion to withdraw
his waiver of a jury trial. The motion alleged that the waiver
was premised upon “inducement, expectancy on a partial plea
agreement and would not have been made but for the fact that
                               - 745 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. PEREZ-CRUZ
                       Cite as 23 Neb. App. 743

the case was put on a Plea Calendar.” The motion alleged that
on April 26, he was informed that there would be no plea,
and that thus, he wished to reinstate his right to a jury trial.
On May 19, Perez-Cruz’ motion came before the court. In
response to the motion, the State indicated that it had missed
an opportunity to try the case during the February, April, and
June term because it was “too late” and that the State was not
going to be in a position to try the case in June. The trial court
took the matter under advisement and, on June 2, overruled the
motion. The trial court ordered that “[b]ased on the evidence,
[Perez-Cruz’] motion to withdraw his waiver of a jury trial
is overruled.”
   The matter came on for bench trial in November 2014, after
which the district court found that the State had proved beyond
a reasonable doubt that Perez-Cruz was guilty of the charge as
alleged in the information. The district court later sentenced
Perez-Cruz to 25 to 40 years’ imprisonment with 606 days’
credit for time served.
                 ASSIGNMENTS OF ERROR
   Perez-Cruz assigns that the district court erred by over-
ruling his request to withdraw his waiver of a jury trial, by
finding that the evidence was sufficient to convict him of first
degree sexual assault, and by imposing an excessive sentence.
Perez-Cruz also assigns that trial counsel was ineffective for
advising him to waive his right to a jury trial.
                          ANALYSIS
Withdraw Waiver of Jury Trial.
   Perez-Cruz assigns that the district court abused its discre-
tion by denying his motion to withdraw his waiver of the right
to a jury trial.
   [1-3] The right to trial by jury is personal and may be
waived by a criminal defendant. State v. Russell, 248 Neb.
723, 539 N.W.2d 8 (1995); State v. Zemunski, 230 Neb. 613,
433 N.W.2d 170 (1988). In order to waive the right to trial by
jury, a defendant must be advised of the right to jury trial, must
                               - 746 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. PEREZ-CRUZ
                       Cite as 23 Neb. App. 743

personally waive that right, and must do so either in writing
or in open court for the record. State v. Russell, supra; State v.
High, 225 Neb. 690, 407 N.W.2d 776 (1987). The waiver of a
right to jury trial must be express and intelligent and cannot be
presumed from a silent record. See, State v. Miller, 226 Neb.
576, 412 N.W.2d 849 (1987); State v. Bishop, 224 Neb. 522,
399 N.W.2d 271 (1987). See, also, State v. Predmore, 220 Neb.
336, 370 N.W.2d 99 (1985).
   [4,5] Once trial by jury is knowledgeably and voluntarily
waived, a defendant has no absolute right to withdraw or
revoke the waiver and demand a jury trial. See State v. Kaba,
217 Neb. 81, 349 N.W.2d 627 (1984). Whether one accused of
a crime who has previously waived the right to trial by jury
will be permitted to withdraw the waiver is within the discre-
tion of the trial court; there is no error absent an abuse of dis-
cretion. See id.
   Perez-Cruz argues that his motion to withdraw should have
been granted because there was no prejudice to the State or the
court as the case was not yet scheduled for trial.
   In the case of State v. Zemunski, supra, the record indicated
that the defendant was advised of his right to a jury trial and
waived that right. By his own admission, the defendant chose
to waive his right to jury trial at that time in order to gain a
tactical advantage through delay. Once he achieved his objec-
tive, the defendant sought to withdraw his waiver. The trial
court denied the motion, and the Nebraska Supreme Court
found that there was no abuse of discretion evident from the
record because the waiver was made in order to gain a tactical
advantage. Id.
   In the case of State v. Kaba, supra, the defendant alleged
that the district court abused its discretion in overruling his
motion to withdraw his right to a jury trial. The Nebraska
Supreme Court found no abuse of discretion because the
defend­ ant did not file his motion until the date set for
trial. See, also, Sutton v. State, 163 Neb. 524, 80 N.W.2d
475 (1957).
                               - 747 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. PEREZ-CRUZ
                       Cite as 23 Neb. App. 743

   In the case of Sutton v. State, supra, the defendant was con-
victed by a jury in a justice of the peace court for speeding.
The defendant appealed the matter to the district court and
waived a jury trial. The matter was continued to the next term
of the court and came on for trial. On the date which the trial
without a jury was set, the defendant asked to withdraw the
previous waiver of the jury trial for no reason other than he
wished to withdraw the waiver and requested a jury trial. The
Nebraska Supreme Court generally cited “46 A. L. R. 2d 920
[and] 50 C. J. S., Juries, § 111 b, p. 825,” for authorities which
pointed out the elements which must appear in the record to be
considered by an appellate court to determine whether or not
the trial court abused its discretion in refusing to permit the
withdrawal of a waiver. Sutton v. State, 163 Neb. at 526, 80
N.W.2d at 476. The court then went on to find: “To enumerate
them here would serve no purpose. It is sufficient to say that
defendant herein made no affirmative showing with relation
thereto. He simply sought to withdraw the voluntary waiver
at his mere will, which he had no right or power to do.” Id. at
527, 80 N.W.2d at 476.
   We are mindful that once trial by jury is knowledgeably and
voluntarily waived, a defendant has no absolute right to with-
draw or revoke the waiver and demand a jury trial. See State
v. Kaba, 217 Neb. 81, 349 N.W.2d 627 (1984). However, that
determination is made at the discretion of the trial court. Id. In
this case, the trial court gave no indication whatsoever, other
than “[b]ased on the evidence,” for the reason it was overrul-
ing Perez-Cruz’ motion to withdraw his waiver of his right to
a jury trial.
   We find that upon our review of the record, clearly, Perez-
Cruz made an affirmative showing the district court abused
its discretion by not allowing him to withdraw his waiver.
There is no evidence in the record to indicate that reinstating
Perez-Cruz’ right to a jury trial was made to gain a tactical
advantage, was made on the date set for trial, or was made
for any other reason other than Perez-Cruz’ belief that a plea
                               - 748 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                       STATE v. PEREZ-CRUZ
                       Cite as 23 Neb. App. 743

agreement would be reached. At the waiver hearing, counsel
for Perez-Cruz indicated that he was hopeful that a plea agree-
ment would be reached, an indication with which the State did
not object, and the State acknowledged that the parties were
working toward a plea agreement. However, at the motion to
withdraw hearing, the State argued that it would not be ready
to try the case during the upcoming June trial term, although
the record shows that Perez-Cruz also waived his right to a
speedy trial, and there is nothing to indicate that the State
would not be able to set the matter for trial during the follow-
ing term in order to have more time to prepare for trial. In fact,
the record shows that the bench trial was not held until the fol-
lowing November and that setting the matter for a subsequent
jury term would not have adversely affected the State’s ability
to have time to try the case.
   Furthermore, we are dealing with a set of circumstances
much different than those in the cases cited above wherein
the denial of a motion to withdraw the waiver of the right to
a jury trial was denied. See, State v. Zemunski, 230 Neb. 613,
433 N.W.2d 170 (1988); State v. Kaba, supra. Perez-Cruz was
not using the waiver of his jury trial to gain a tactical advan-
tage, nor was he using it to delay the start of a previously
scheduled trial. The parties were in the preliminary stages of
the case and were very clearly in contemplation of reaching
a plea agreement. At the waiver hearing, the district court
asked Perez-Cruz if the parties were continuing the matter for
a bench trial, which Perez-Cruz denied and instead requested
that it be set for a plea. Obviously, the parties had an inclina-
tion that, most likely, there would not be a need for a trial date,
bench or jury, and, as such, preemptively waived the right to
a jury trial in order to avoid any unnecessary scheduling. The
State cannot now contend that such a procedure would have
impeded its ability to adequately prepare for a trial which was
not contemplated at the time of the waiver of Perez-Cruz’ right
to a jury trial.
                              - 749 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                      STATE v. PEREZ-CRUZ
                      Cite as 23 Neb. App. 743

   Therefore, based upon the record before the court and the
circumstances of this case, we find that the trial court abused
its discretion by overruling Perez-Cruz’ motion to withdraw the
waiver of his right to a jury trial. Therefore, the judgment of
conviction and sentence are hereby reversed and the matter is
remanded to the district court for a new trial.
Remaining Assignments of Error.
   [6] Having made this determination regarding the motion
to withdraw Perez-Cruz’ right to a jury trial, we need not
address his remaining assignments of error. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. Johnson v.
Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015).
                         CONCLUSION
   In conclusion, we find that the district court abused its
discretion by overruling Perez-Cruz’ motion to withdraw his
right to a jury trial. Perez-Cruz’ conviction and sentence are
reversed, and the matter is remanded to the district court for
a new trial.
                     R eversed and remanded for a new trial.
