[Cite as State v. Prues, 2018-Ohio-4259.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2018-03-011

                                                   :           OPINION
    - vs -                                                     10/22/2018
                                                   :

JESSICA PRUES,                                     :

        Defendant-Appellant.                       :



           CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                             Case No. 2018 CRB 0219



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for defendant-appellant



        RINGLAND, J.

        {¶ 1}     Defendant-appellant, Jessica Prues, appeals her conviction in the Clermont

County Municipal Court. For the reasons detailed below, we affirm.

        {¶ 2}     Appellant was charged in the Clermont County Municipal Court on one count

of domestic violence in violation of R.C. 2919.25(A), a first-degree misdemeanor, one count

of assault in violation of R.C. 2903.13(A), a first-degree misdemeanor, and one count of

resisting arrest in violation of R.C. 2921.33, a second-degree misdemeanor.
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         {¶ 3}   Appellant appeared before the magistrate with counsel and entered a not guilty

plea. During the hearing, the magistrate discussed appellant's rights, specifically "you have

the right to demand a jury trial, if you'd like a jury trial just inform your attorney and they'll

advise you of the procedures for doing so."           Appellant affirmatively stated that she

understood her rights.

         {¶ 4}   At a hearing to set the case for trial, appellant's attorney requested a bench

trial:

                 THE COURT: This is State v. Jessica Prues, 2018 CRB 219.
                 [Appellant] is present in the courtroom today with her attorney,
                 Ms. Dalton. The State of Ohio is represented by Mr. Parker.
                 There's a request that this case be set for trial. Ms. Dalton, is
                 she requesting a bench trial?

                 MS. DALTON: Yes, Your Honor.

                 ***

                 THE COURT: Okay, this asks that I set the case by the 8th of
                 February because you're not waiving time so I will set the case
                 for a bench trial before February 8th. All right, thank you.

         {¶ 5} On February 7, 2018, the case was tried to the bench. The trial court found

appellant guilty of assault and resisting arrest, but found her not guilty of domestic violence.

Appellant was then sentenced to 205 days in jail. Appellant now appeals, raising a single

assignment of error for review:

         {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT IN FAILING TO VERIFY THAT SHE WAS WILLING TO WAIVE HER RIGHT

TO A TRIAL BY JURY.

         {¶ 7} Appellant contends that the trial court erred when it conducted a bench trial

without a written jury trial waiver. We disagree.

         {¶ 8} Under the Sixth Amendment to the Constitution of the United States and

Section 5, Article I of the Constitution of Ohio, trial by jury in a criminal case is guaranteed.
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However, the guarantee of a jury trial in criminal cases contained in the state and federal

Constitutions is not an absolute and unrestricted right in Ohio with regard to misdemeanors.

State v. Tate, 59 Ohio St. 2d 50, 52 (1979).

       {¶ 9} Crim.R. 23(A) provides that "[i]n 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 * * *. Failure to demand a jury trial

as provided in this subdivision is a complete waiver of the right thereto."

       {¶ 10} It is well-established that where a jury demand is not timely made in a petty

offense case, the requirements for the waiver of the jury trial right in R.C. 2945.05 do not

apply. City of Middletown v. Flinchum, 12th Dist. Butler No. CA99-11-193, 2000 Ohio App.

LEXIS 5908, at *18 (Dec. 18, 2000); State v. Roberts, 9th Dist. Wayne No. 14AP0035, 2015-

Ohio-5044, ¶ 18; State v. Lecorcik, 9th Dist. Summit No. 24388, 2009-Ohio-942, ¶ 6 ("[The

defendant] had a right to a jury trial under [Crim.R. 23(A)], but was required to file a proper

jury demand to assert that right.")

       {¶ 11} In this case, appellant was charged with two first-degree misdemeanors and

one second-degree misdemeanor.           None of the individual offenses subjected her to

confinement for more than six months. R.C. 2929.24. As a result, appellant was charged on

petty offenses for the purposes of Crim.R. 23(A) and was required to file a written jury

demand to preserve her rights. Crim.R. 2(D) (defining "petty offense"). Appellant did not file

a written jury demand and therefore, under well-settled law, waived her right to a jury trial.

       {¶ 12} On appeal, appellant makes several additional arguments: (1) the trial court

abused its discretion by failing to verify that she was waiving her right to a jury trial, (2) the

trial court committed plain error by failing to grant a jury trial, (3) a written demand is not

necessary to obtain a jury trial, (4) and the court form provides a space for a defendant to

waive the right to a jury trial and she did not effect a written waiver. However, as noted
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above, Crim.R. 23 provides the appropriate legal standard for requesting a jury trial under

these circumstances. Appellant failed to file a timely written jury demand. See State v.

Miyamoto, 3d Dist. Union No. 14-05-43, 2006-Ohio-1776, ¶ 9 (noting that an oral request for

a jury trial is insufficient).

        {¶ 13} Finally, although appellant does not raise the issue as a separate assignment

of error, she argues that she received ineffective assistance of counsel because her trial

counsel failed to verify with her that she was willing to waive her right to a jury trial. However,

trial counsel's decision to proceed with a bench trial, rather than requesting a jury trial, is a

strategic decision, and is not a meritorious reason for reversal as an ineffective assistance of

counsel claim. City of Cleveland v. Gholston, 8th Dist. Cuyahoga No. 96592, 2011-Ohio-

6164, ¶ 12. Furthermore, appellant's contention that she was unaware of her right to request

a jury trial is not only entirely speculative, but also rebutted by the record. As a result, we find

appellant's sole assignment of error is without merit and it is hereby overruled.

        {¶ 14} Judgment affirmed.


        S. POWELL, P.J., and HENDRICKSON, J., concur.




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