[Cite as State v. Scoles, 2018-Ohio-1149.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 17-CA-49
STEVEN SCOLES                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 16-CRB-919



JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            March 26, 2018


APPEARANCES:




For Plaintiff-Appellee                             For Defendant-Appellant

DOUGLAS E. SASSEN                                  TODD BARSTOW
44 West Main Street, 4th Fl                        538 South Yearling Road, Ste. 202
Newark, OH 43055                                   Columbus, OH 43213
[Cite as State v. Scoles, 2018-Ohio-1149.]


Gwin, P.J.

        {¶1}     Appellant Steven Scoles [“Scoles”] appeals his conviction for one count of

domestic violence in the Licking County Municipal Court.

                                             Facts and Procedural History

        {¶2}     On May 10, 2016, a Complaint was filed charging Scoles with one count of

Domestic Violence, a misdemeanor of the first degree.

        {¶3}     On June 16, 2016, Scoles requested and was granted a court appointed

attorney to represent him. Scoles filed a written demand for a jury trial on June 17, 2016.

A jury trial was scheduled for August 4, 2016. By Judgment Entry filed August 3, 2016,

the trial court continued the jury trial so that Scoles could apply for the Licking County

Municipal Court’s Pre-trial Diversion program.

        {¶4}     On August 25, 2016, Scoles withdrew his previously entered plea and

applied for the prosecutor's diversion program. By Judgment Entry filed August 29, 2016,

the trial court granted a continuance of Scoles’ arraignment so Scoles could apply for the

diversion program. The entry ordered Scoles to appear for arraignment October 25,

2016, “unless notified by the Court’s Probation Department that the Defendant has been

accepted into the Diversion Program.”

        {¶5}     By Judgment Entry filed October 13, 2016, Scoles was accepted into the

Licking County Municipal Court’s Pre-trial Diversion program. This judgment entry stated

the matter was before the trial court on Scoles’ application for diversion. The entry does

not state that a hearing was held in open court. Neither Scoles nor his attorney’s

signatures appear on the entry. No hearing date or transcript from October 13, 2016 has

been located in the record.
Licking County, Case No. 17-CA-49                                                           3


       {¶6}   On March 14, 2017, the Licking County Municipal Court Probation

Department filed a “Memorandum Termination of Diversion” with the trial court, alleging

that Scoles violated the terms and conditions of the Diversion program. By Judgment

Entry filed the same day, Scoles’ case was returned to the active docket and Scoles was

ordered to appear for arraignment on March 29, 2017.

       {¶7}   Scoles’ appointed counsel withdrew on March 16, 2017, and new counsel

was appointed by the trial court on March 22, 2017. Scoles’ new trial counsel filed a

request for discovery, request for bill of particulars, and request for evidence in chief, a

request for notice of intent by the state to use evidence, and a written demand for a jury

trial on March 24, 2017.

       {¶8}   On March 29, 2017, a Judgment Entry was filed noting that Scoles failed to

appear for arraignment.     On March 31, 2017, the state filed a response to Scoles’

discovery request.

       {¶9}   On April 25, 2017, Scoles appeared for arraignment and entered a plea of

not guilty. By “Court Order” dated May 8, 2017, Scoles’ case was scheduled for a jury

trial on May 18, 2017. By Judgment Entry filed May 23, 2017, the Court on its own motion

continued Scoles’ jury trial to June 8, 2017 because Scoles had reasserted his right to a

jury trial. The trial court set a pretrial conference to consider if Scoles’ entry into the

Diversion Program constituted a guilty plea and waiver of a jury trial. On June 8, 2017,

the trial court held a hearing and overruled Scoles’ request for a jury trial. The Court ruled

that pursuant to the Diversion Agreement executed by Scoles, the trial court was to

determine the guilt of innocence of Scoles if he were terminated from the program. At the

conclusion of the hearing, which included a recitation of the facts by the prosecutor and a
Licking County, Case No. 17-CA-49                                                           4


review of the file by the court, a guilty verdict was entered and the court proceeded with

sentencing.

        {¶10} By Judgment Entry filed June 17, 2017, the trial court concluded that by

entering the Diversion Program, Scoles had entered a plea of guilty and had waived his

right to a jury trial. The trial court found that Scoles “knowingly, intentionally and

voluntarily bargained away his right to a contested hearing or trial in the case at

bar.”

                                      Assignments of Error

        {¶11} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE

PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION

AND THE OHIO CONSTITUTION BY FAILING TO ENGAGE IN A PROVIDENT AND

CONSTITUTIONAL PLEA COLLOQUY PURSUANT TO OHIO RULE OF CRIMINAL

PROCEDURE 11.

        {¶12} “II. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF

DUE     PROCESS        OF    LAW     AS    GUARANTEED          BY    THE    FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE

SECTION TEN OF THE OHIO CONSTITUTION BY OVERRULING HIS MOTION TO

WITHDRAW HIS PLEA.”

                                        Law and Analysis.

        {¶13} In his two assignments of error, Scoles contends that the trial did not obtain

a proper waiver of his Constitutional rights, including his right to a jury trial. See, Change

of Plea T. June 8, 2017 at 3.
Licking County, Case No. 17-CA-49                                                         5


       STANDARD OF APPELLATE REVIEW.

       {¶14} “When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d

440, ¶6. Because the assignments of error involve the interpretation of statutes and the

Ohio Constitution, which is a question of law, we review the trial court’s decision de novo.

Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237,

¶ 13; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9;

Hurt v. Liberty Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031,

2017-Ohio-7820, ¶ 31. However, insofar as factual issues must be determined by the

trial court as a predicate to resolving the legal questions, such factual determinations

should be accorded deference. MA Equip. Leasing I, LLC v. Tilton, 10th Dist., 2012-Ohio-

4668, 980 N.E.2d 1072, ¶ 18; Block Communications, Inc. v. Pounds, 6th Dist. Lucas No.

L-13-1224, 2015-Ohio-2679, 34 N.E.3d 984, ¶ 44

       {¶15} RC 2935.36 provides for the establishment of pretrial diversion programs.

The prosecuting attorney is authorized to establish these programs, and they operate

pursuant to written standards that have been approved by the court. The statute provides

for the waiver of a limited number of the accused’s rights,

              (B) An accused who enters a diversion program shall do all of the

       following:
Licking County, Case No. 17-CA-49                                                        6


             (1) Waive, in writing and contingent upon the accused’s successful

      completion of the program, the accused’s right to a speedy trial, the

      preliminary hearing, the time period within which the grand jury may

      consider an indictment against the accused, and arraignment, unless the

      hearing, indictment, or arraignment has already occurred;

             (2) Agree, in writing, to the tolling while in the program of all periods

      of limitation established by statutes or rules of court, that are applicable to

      the offense with which the accused is charged and to the conditions of the

      diversion program established by the prosecuting attorney;

             (3) Agree, in writing, to pay any reasonable fee for supervision

      services established by the prosecuting attorney.

      {¶16} If the accused satisfactorily completes the diversion program, the

prosecutor must recommend to the trial court that the charges be dismissed, and the

court, upon such recommendation, is required to dismiss the charges. R.C. 2935.36(D).

In the event the accused does not participate or does not successfully complete the

diversion program, R.C. 2935.36(D) provides,

             If the accused chooses not to enter the prosecuting attorney’s

      diversion program, or if the accused violates the conditions of the

      agreement pursuant to which the accused has been released, the accused

      may be brought to trial upon the charges in the manner provided by law,

      and the waiver executed pursuant to division (B)(1) of this section shall be

      void on the date the accused is removed from the program for the violation.

      {¶17} The diversion agreement in the case at bar provided, in relevant part,
Licking County, Case No. 17-CA-49                                                          7


              I wish to enter into a Diversion Agreement and submit my case on

       the record. I understand that by doing so, I am stipulating (agreeing) to the

       admissibility of the evidence contained in the reports and materials, which

       have been reviewed with me, and further stipulate that there is sufficient

       evidence contained in said reports to support a finding of guilt. I understand

       that if I meet all terms of this agreement, then the case against me will be

       dismissed with without [sic.] prejudice (meaning the Judgment will not be

       brought up again). I understand that if I violate any of the terms of this

       agreement, a trial/hearing can be held in which the Judge reads the

       investigative reports and materials relating to the above enumerated case

       and can decide, on that evidence alone, if I am guilty of the crime(s) of

       Domestic violence as originally filed by the Newark Police Department.

              By entering into the Diversion Program Agreement, I hereby knowing

       and voluntarily waive my rights to a speedy trial under R.C. 2945.71 et. Seq,

       [sic.] the United States Constitution and the constitution of the State of Ohio.

       {¶18} In the case at bar, this agreement was executed without counsel on Scoles’

behalf. The agreement was not executed in open court and the only person present was

a probation officer. The trial court did not conduct a Crim.R. 11 colloquy, nor did the court

review the agreement with Scoles in open court. The trial court did not obtain a written

waiver of Scoles previously filed demand for a jury trial.

       {¶19} Subsequent to being removed from the Diversion Program, Scoles re-

asserted in writing his demand for a jury trial.

       2). Right to a jury trial for petty offenses.
Licking County, Case No. 17-CA-49                                                        8


      {¶20} Crim.R. 2 defines a “petty offense” as “a misdemeanor other than a serious

offense.” See Crim.R. 2(D). A “serious offense” is “any felony, and any misdemeanor for

which the penalty prescribed by law includes confinement for more than six months.”

Thus, a petty offense is one for which a defendant is at risk of six months incarceration

or less. Scoles was charged with domestic violence a first-degree misdemeanor, a petty

offense.

      {¶21} R.C. 2945.17 provides,

             (A) At any trial, in any court, for the violation of any statute of this

      state, or of any ordinance of any municipal corporation, except as provided

      in divisions (B) and (C) of this section, the accused has the right to be tried

      by a jury.

             (B) The right to be tried by a jury that is granted under division (A) of

      this section does not apply to a violation of a statute or ordinance that is any

      of the following:

             (1) A violation that is a minor misdemeanor;

             (2) A violation for which the potential penalty does not include the

      possibility of a prison term or jail term and for which the possible fine does

      not exceed one thousand dollars.

             (C) Division (A) of this section does not apply to, and there is no right

      to a jury trial for, a person who is the subject of a complaint filed under

      section 2151.27 of the Revised Code against both a child and the parent,

      guardian, or other person having care of the child. (Emphasis added).
Licking County, Case No. 17-CA-49                                                           9


       {¶22} Article I, Section 5 of the Ohio Constitution generally provides, “The right of

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

Constitution, entitled “Rights of Criminal Defendants,” 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 * * *.” However, “(t)he 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

respect to misdemeanors, and a statute, ordinance or authorized rule of court may validly

condition the right to a jury trial in such a case on a written demand therefor * * *.” Mentor

v. Giordano, 9 Ohio St.2d 140, 224, 224 N.E.2d 343, N.E.2d 343(1967), paragraph one

of the syllabus. In State v. Tate, the petty offender demanded a jury trial but never

received one. The state argued that he implicitly waived his right by standing silent during

the bench trial. But, the Supreme Court disagreed. The Court explained that every

reasonable presumption should be made against the waiver “especially when it relates to

a right or privilege deemed so valuable as to be secured by the Constitution.” State v.

Tate, 59 Ohio St.2d 50, 53, 391 N.E.2d 738(1979). The Court then concluded that since

the written waiver statute was not complied with, the misdemeanor defendant “was denied

his constitutional right to trial by jury.” Id. at 54, 391 N.E.2d 738 (emphasis added).

       {¶23} Scoles first filed a written demand for a jury trial on June 17, 2016. Scoles

filed a second demand for a jury trial after he was discharge from the diversion program.

This demand was filed March 24, 2017. By “Court Order” dated May 8, 2017, Scoles’

case was scheduled for a jury trial on May 18, 2017. Scoles objected on the record to

the trial court’s refusal to honor his demand for a jury trial.

       3). Waiver of the right to a jury trial after a written demand has been filed.
Licking County, Case No. 17-CA-49                                                         10


       {¶24} R.C. 2945.05 governs jury waivers:

              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 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 by 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. (Emphasis added).

       {¶25} 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 350, 2007–Ohio–4277, 872 N.E.2d 279, paragraph one of the

syllabus (2007). To satisfy the “in open court” requirement set forth in R.C. 2945.05, there

must be some evidence in the record that the defendant, while in the courtroom and in

the presence of counsel, acknowledged the jury waiver to the trial court. Id. at paragraph

two of the syllabus. In finding the colloquy inadequate to waive a jury trial, the Ohio

Supreme Court in Lomax noted, “We do not mandate magic words, or a prolonged

colloquy, but simply what Ohio law intends—that a defendant while in the courtroom and
Licking County, Case No. 17-CA-49                                                           11


in the presence of counsel, if any, acknowledge to the trial court that the defendant wishes

to waive the right to a jury trial.” Id. at ¶48.

       {¶26} The law is clear that, absent strict compliance with R.C. 2945.05, a

waiver of a jury demand is not effective. State v. Pless, 74 Ohio St.3d 333, 658

N.E.2d 766 (1996), paragraph one of the syllabus. As the Ohio Supreme Court has

stated,

               Even in petty offense cases where a defendant properly demands a

       jury trial, “it must appear of record that such defendant waived this 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 v. Tate (1979),

       59 Ohio St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738, syllabus. See, also, Lima

       v. Rambo (1960), 113 Ohio App. 158, 17 O.O.2d 133, 177 N.E.2d 554. The

       Criminal Rules and the Revised Code are satisfied by a written waiver,

       signed by the defendant, filed with the court, and made in open court, after

       arraignment and opportunity to consult with counsel. State v. Jells (1990),

       53 Ohio St.3d 22, 26, 559 N.E.2d 464, 468. There must be strict compliance

       with R.C. 2945.05 for there to be a waiver of a right to a jury trial; where the

       record does not reflect strict compliance, the trial court is without jurisdiction

       to try the defendant without a jury. State v. Tate, supra. See, also, State v.

       Harris (1991), 73 Ohio App.3d 57, 596 N.E.2d 563; State v. Anderson (Jan.

       27, 1992), Fayette App. No. CA91-02-003, unreported, 1992 WL 12614.

State ex rel. Jackson v. Dallman, 70 Ohio St.3d 261, 262, 1994-Ohio-235, 638

N.E.2d 563 (emphasis added). The “waiver must clearly and affirmatively appear
Licking County, Case No. 17-CA-49                                                        12


upon the record, and it cannot be assumed or implied by a reviewing court from

the silence of the accused * * *.” Furthermore, (e) very reasonable presumption

should be made against the waiver, especially when it relates to a right or privilege

deemed so valuable as to be secured by the Constitution.” Simmons v. State, 75

Ohio St. 346,352, 79 N.E. 555(1906).

       {¶27} In the case at bar, the record reflects that there was no written waiver

reviewed and signed by Scoles pertaining to either of his written jury demands. Further,

the record does not reflect that Scoles 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, either prior to entering the diversion program, or after Scoles was

discharge from the program. See, State v. Johnson, 5th Dist. Stark No. 2016CA00119,

2017-Ohio-1251; State v. Howell, 1st Dist. Hamilton Nos. C-160679, C-160680, 2017-

Ohio-7182 (holding application of the invited-error doctrine would circumvent R.C.

2945.05, and declining to apply the doctrine in this situation). Scoles objected on the

record and renewed his demand for a jury trial in open court at the hearing held June 8,

2017. Scoles did not enter a guilty or no contest plea in open court at any time.

       {¶28} In the case at bar, the trial court failed to comply with R.C. 2945.05.

Because there was no written waiver of Scoles’ jury demand made in open court and filed

with the trial court, Scoles was denied his constitutional right to trial by jury.      This

prejudicial error requires us to reverse the conviction of the trial court.
Licking County, Case No. 17-CA-49                                               13


      CONCLUSION

      {¶29} Scoles’ assignments of error are sustained. The judgment of the Licking

County Municipal Court is reversed and this case is remanded to that court for

proceedings consistent with this Opinion.



By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
