[Cite as State v. Schneider, 2020-Ohio-343.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 19-COA-027
BOB SCHNEIDER                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland Municipal
                                                   Court, Case No. 19-CRB-00699



JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            January 31, 2020



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

THOMAS GILMAN                                      JOSEPH KEARNS, JR.
133 South Market Street                            P.O. Box 345
Loudonville, OH 44842                              153 West Main Street
                                                   Ashland, OH 44805
Ashland County, Case No. 19-COA-027                                                         2


Gwin, P.J.

        {¶1}   Appellant Bob Schneider appeals his conviction for one count of domestic

violence in the Ashland Municipal Court. Appellee is the State of Ohio.

                                    Facts & Procedural History

        {¶2}   On May 8, 2019, appellee filed a complaint charging appellant with a

violation of R.C. 2919.25(A), domestic violence, a misdemeanor of the first degree, for

knowingly causing or attempting to cause physical harm to his wife. On May 10, 2019,

appellant was appointed counsel to represent him. Appellant filed a written demand for

a jury trial on May 13, 2019. The matter proceeded to a trial by the court on May 29,

2019.

        {¶3}   After brief introductory remarks by each party, appellee called Officer Adam

Harper (“Harper”) as a witness. Harper testified that he was dispatched to appellant’s

house on May 8, 2019 and when he arrived on the scene, appellant’s wife was sitting on

the front porch crying and visibly upset. She explained to Harper that appellant struck

her in the side of the head, grabbed her arms, threw her on the couch, punched her in

the arm, and bit her finger. Harper observed she had swelling and bruising on her face

and bite marks on her finger. Harper took photographs of her injuries. Appellant advised

Harper that appellant’s wife had thrown a plate at appellant and scratched his eye.

Appellant referred Harper to Facebook posts and Harper believed appellant was eluding

his questions.

        {¶4}   A.S., appellant’s wife, testified that appellant punched her in the arms, ribs,

and back of the head, and also bit her finger. A.S. threw a plate at appellant to attempt
Ashland County, Case No. 19-COA-027                                                          3


to get him off of her. A.S. stated they were in a verbal fight, but appellant physically struck

her first. A.S. confirmed she has several drug-related convictions.

       {¶5}   Appellant testified A.S. threw a plate at him and clawed at his face and eyes

and he bit her finger to stop her. Appellant called the police to report A.S. hitting him.

       {¶6}   At the conclusion of the bench trial, the trial court found appellant guilty. Via

a judgment entry on May 29, 2019, the trial court sentenced appellant to a term of 180

days in jail, with 150 days suspended, and also placed appellant on probation for three

years. This Court granted appellant leave to file a delayed appeal.

       {¶7}   Appellant appeals the May 29, 2019 judgment entry of the Ashland

Municipal Court and assigns the following as error:

       {¶8}   “I. APPELLANT WAS DENIED HIS RIGHT TO A TRIAL BY JURY.

       {¶9}   “II. THE CONVICTION OF THE DEFENDANT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                                  I.

       {¶10} In his first assignment of error, appellant argues his conviction must be

reversed because the trial court violated his right to a jury trial. We agree.

       {¶11} In this case, appellant was charged with one count domestic violence, a

first-degree misdemeanor, which is a petty offense. The Supreme Court of Ohio has held,

“[e]ven in petty offense cases where a defendant properly demands a jury trial, it must

appear of record that such defendant waived his right in writing in the manner provided

by R.C. 2945.05, in order for the trial court to have jurisdiction to try the defendant without

a jury.” State ex rel. Jackson v. Dallman, 70 Ohio St.3d 261, 638 N.E.2d 563 (1994); see

also R.C. 2945.17. Article I, Section 5 of the Ohio Constitution generally provides, “The
Ashland County, Case No. 19-COA-027                                                         4


right of trial by jury shall be inviolate * * *.” Furthermore, Article I, Section 10 of Ohio’s

Constitution states, in part, “In any trial, in any court, the party accused shall be allowed

* * * to have * * * a speedy public trial by an impartial jury * * *.”

       {¶12} R.C. 2945.05 governs jury waivers and provides as follows:

               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 a 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 cause, hereby voluntarily waive and relinquish my

       right to a trial by jury, and elect to be tried 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.

       {¶13} The Ohio Supreme Court has held that a waiver of the right to a trial by jury

must be made in writing, signed by the defendant, and filed as a part of the record, and

must also be made in open court. State v. Lomax, 114 Ohio St.3d 500, 2007-Ohio-4277,

872 N.E.2d 279.

       {¶14} Appellant filed a written jury demand on May 13, 2019. The record reflects

that there was no written waiver reviewed and signed by appellant. Further, the record
Ashland County, Case No. 19-COA-027                                                     5


does not reflect that appellant was addressed personally by the trial court to ascertain

whether it was his intention to waive his right to a jury trial on the domestic violence

charge. Appellee does not dispute that in the case at bar, a signed jury waiver is not

present in the record and appellee also does not dispute that appellant did not waive his

right to a jury trial in open court as required by R.C. 2945.05.

       {¶15} The Ohio Supreme Court and this Court have previously held that the

proper remedy when a jury waiver is invalid is to remand the case to the trial court for a

new trial. State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766; State v. Parks, 5th Dist.

Stark No. 2016CA00168, 2017-Ohio-4152; State v. Scoles, 5th Dist. Licking No. 17-CA-

49, 2018-Ohio-1149.

       {¶16} Appellant’s first assignment of error is sustained.

                                                 II.

       {¶17} Based upon our decision in appellant’s first assignment of error, which

necessitates a new trial, we find this assignment of error moot. State v. Parks, 5th Dist.

Stark No. 2016CA00168, 2017-Ohio-4152.

       {¶18} Accordingly, appellant’s first assignment of error is sustained. Appellant’s

second assignment of error is moot.
Ashland County, Case No. 19-COA-027                                               6


       {¶19} The judgment of the Ashland Municipal Court is reversed and the case is

remanded to that court for a new trial.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
