[Cite as State v. McGuire, 2020-Ohio-3108.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                    :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
 -vs-                                          :
                                               :   Case No. 2019 CA 0085
                                               :
 SHAWN L. MCGUIRE                              :
                                               :
                                               :
        Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 18 CR 00775



JUDGMENT:                                          REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                            May 26, 2020




APPEARANCES:

 For Plaintiff-Appellant:                          For Defendant-Appellee:

 Paula M. Sawyer                                   William T. Cramer
 20 South Second Street, 4th Floor                 470 Olde Worthington Road, Suite 200
 Newark, Ohio 43055                                Westerville, Ohio 43082
Licking County, Case No.2019 CA 0085                                                      2


Delaney, J.

       {¶1} Plaintiff-Appellant State of Ohio appeals the August 21, 2019 judgment

entry of the Licking County Court of Common Pleas, which granted a motion for new trial

in favor of Defendant-Appellee Shawn L. McGuire.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} McGuire was indicted on November 1, 2018, for Aggravated Possession of

Drugs, R.C. 2925.11(A)(C)(1)(c), a second degree felony (Count One); Aggravated

Trafficking in Drugs, R.C. 2925.03(A)(2)(C)(1)(d), a second degree felony (Count Two)

and Having Weapons While Under Disability, R.C. 2923.13(A)(2), a third degree felony

(Count Three), along with forfeiture specifications for U.S. currency and a firearm.

       {¶3} The facts underlying McGuire’s indictment are not pertinent to this appeal.

       {¶4} On November 6, 2018, McGuire entered a plea of not guilty and was

appointed counsel. After various continuances, the matter was set for trial on July 23,

2019. Prior to prospective jurors being brought into the courtroom, defense counsel made

an oral request to waive McGuire’s right to have the jury determine the Weapons Under

Disability charge. McGuire had a prior conviction for involuntary manslaughter which was

the underlying conviction for Count Three. No written waiver of the right to jury was

presented to the trial court. The State objected because it would be unduly burdensome

to recall multiple witnesses in order to present the evidence relevant to Count Three.

McGuire refused to stipulate to the prior conviction. The trial court overruled defense

counsel’s oral waiver request and agreed to give a limiting instruction to the jury that the

conviction was only for purposes of the weapons charge and not for any other reason.

       {¶5} The jury found McGuire guilty as charged.
Licking County, Case No.2019 CA 0085                                                        3


       {¶6} On August 7, 2019, McGuire filed a Crim. R. 33 motion for new trial and

Crim. R. 29(C) motion for judgment of acquittal. The State opposed the motion.

       {¶7} On August 21, 2019, the trial court granted McGuire’s motion for a new trial

pursuant to Crim. R. 33(A)(5), finding it was in error to deny the oral request to waive trial

by jury as to the Weapons Under Disability charge. The trial court cited State v. Van

Sickle, 90 Ohio App. 3d 301, 629 N.E.2d 39 (10th Dist.1993), for the proposition that a

defendant has the right to waive a jury and elect to have counts tried to the court. The

trial court denied as moot the motion for judgment of acquittal.

       {¶8} The State appeals and sets forth a single assignment of error:

                                 ASSIGNMENT OF ERROR

       {¶9} “THE         TRIAL       COURT        ERRED         IN     GRANTING          THE

APPELLEE/DEFENDANT’S MOTION FOR NEW TRIAL.”

                                        ANALYSIS

       {¶10} Crim. R. 33(B)(5) provides, in part, that the trial court may grant a new trial

based upon “error of law occurring at trial”.

       {¶11} Generally, a motion for a new trial pursuant to Crim. R. 33(B) is addressed

to the sound discretion of the trial court, and will not be disturbed on appeal absent an

abuse of discretion. State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54 (1990). However,

when a new trial is granted by a trial court, for reasons which involve no exercise of

discretion but only a decision on a question of law, the order granting a new trial may be

reversed upon the basis of a showing that the decision was erroneous as a matter of law.

Wright v. Suzuki Motor Corp., 4th Dist. Meigs No. 3-CA-2, 2005-Ohio-3494, ¶127.
Licking County, Case No.2019 CA 0085                                                          4


       {¶12} In this case, the trial court granted a motion for new trial under Crim. R.

33(A) (5): “error of law occurring at trial.” Therefore, our standard of review is de novo.

       {¶13} The question presented in this appeal is whether an error of law occurred

when the trial court denied McGuire’s oral motion to waive jury with respect to Count 3,

Weapons Under Disability, before commencement of trial. If the trial court erred in

denying the oral motion, then the trial court properly granted the motion for new trial. We

find, though, that the trial court properly denied the oral motion to waive trial by jury as to

Count 3, therefore there was no error of law, and ultimately the trial court should not have

sustained the motion for new trial.

       {¶14} The State points out that McGuire never filed a written waiver of a jury trial,

therefore the trial properly denied the oral motion to waive jury as to Count 3. The Sixth

Amendment to the United States Constitution and Article 1, Section 10 of the Ohio

Constitution guarantee a criminal defendant the right to a jury trial.

       {¶15} Crim R. 23 (A) states: “In serious offense cases the defendant before

commencement of the trial may knowingly, intelligently and voluntarily waive in writing his

right to trial by jury. Such waiver may also be made during trial with the approval of the

court and the consent of the prosecuting attorney.”

       {¶16} The General Assembly has prescribed the manner in which a defendant

may waive this right in R.C. 2945.05, which states:

                     “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,
Licking County, Case No.2019 CA 0085                                                        5


              signed by the defendant, and filed in said cause and made a part of

              the record thereof. * * *”.

       {¶17} For a jury waiver to be valid, it must be: (1) in writing, (2) signed by the

defendant, (3) filed, (4) made part of the record, and (5) made in open court.” State v.

Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 7. Trial courts must

strictly comply with these five requirements. See, id. at ¶ 41; State v. Pless, 74 Ohio St.3d

333, 1996-Ohio-102, 658 N.E.2d 766 (1996), paragraph one of the syllabus (holding that

the jury-waiver requirements in R.C. 2945.05 must be strictly observed).

       {¶18} The purpose of the written waiver is to ensure that the defendant’s waiver

is intelligent, knowing and voluntary. State v. Sweeting, 1st Dist. Hamilton No. C-180161,

2019-Ohio-2360, ¶ 16 (citations omitted).

       {¶19} After reviewing the record, we find that the jury waiver requirements were

not satisfied in this case. McGuire did not read, sign, or submit a written jury waiver to the

court. Strict compliance with R.C. 2945.05 requires a written waiver signed by the

defendant. Therefore, the trial court was correct in denying McGuire’s oral request and

no error of law occurred.

       {¶20} The trial court’s reliance upon State v. Van Sickle, supra, was misplaced.

90 Ohio App.3d 301, 629 N.E.2d 39 (10th Dist.1993). In Van Sickle, the defendant filed

a pre-trial motion to sever an aggravated-murder charge and an abuse-of-a-corpse

charge. Defendant requested that the aggravated-murder count be tried before a jury

and the abuse-of-a-corpse count be tried before a judge with a specific written request to

waive jury trial on that charge. The motion was overruled. The two counts were tried

together before a jury in the trial court. The jury found defendant not guilty of aggravated
Licking County, Case No.2019 CA 0085                                                      6


murder but guilty of murder and a firearm specification. The jury also found defendant

guilty of abuse of corpse. Defendant appealed and assigned as error the trial court abused

in discretion in overruling the motion to sever.

         {¶21} The Tenth District Court of Appeals found the trial court’s overruling of the

motion to sever was in error due to the prejudicial nature of evidence (a video) which

would not have been admissible in the murder case and separate trials were warranted

under Crim. R. 14. Id., at 309. The court further found that since the defendant desired

to waive a jury trial on the charge of abuse of a corpse, the denial of the motion to sever

deprived of her statutory right to waive a jury trial on that charge. Id. However, there was

no discussion or analysis of the mandatory requirements of either R.C. 2945.05 or Crim.

R. 23.

         {¶22} Consequently, we find Van Sickle is not determinative of the outcome of

this case.
Licking County, Case No.2019 CA 0085                                                      7


                                      CONCLUSION

       {¶23} For the foregoing reasons, we conclude that McGuire did not waive his right

to a jury trial as prescribed by R.C. 2945.05 and Crim.R. 23 (A), and consequently, the

trial court committed no legal error in overruling McGuire’s oral request. Accordingly, we

sustain the assignment of error and reverse the judgment of the trial granting the motion

for new trial pursuant to Crim. R. 33 (A)(5). This matter is remanded to the trial court for

further proceedings consistent with this opinion and the law.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.
