[Cite as State v. Sweeting,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-180161 TRIAL NO. B-1706232 Plaintiff-Appellee, : O P I N I O N. vs. :

DEIONANDREA SWEETING, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 14, 2019

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Angela Glaser, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Following a bench trial, defendant-appellant Deionandrea Sweeting

was found guilty of violating R.C. 2950.04 for failing to register his address with the

Hamilton County Sheriff within five days of coming into the county, a felony of the

third degree. He was sentenced to 18 months’ incarceration. He appeals his

conviction arguing that the trial court erred in conducting a bench trial without a

proper jury waiver. Sweeting contends that the court failed to strictly comply with

R.C. 2945.05 because he did not sign a jury waiver, and that any purported waiver

was not knowingly and intelligently made. Because Sweeting did not execute a valid

jury waiver, the judgment of the trial court is reversed, and the matter remanded for

a new trial.

Pretrial Proceedings

{¶2} Sweeting was indicted on October 24, 2017, for failing to register in

violation of R.C. 2950.04. After his first attorney withdrew from his case, the trial

court appointed a second attorney on December 18, 2017. Approximately a month

later, Sweeting filed a motion to remove counsel for failing to file an affidavit of

disqualification, and the trial court appointed a third attorney on February 2, 2018.

At that point, Sweeting waived his right to counsel and proceeded to represent

himself. The trial court appointed standby counsel at Sweeting’s request. The case

was scheduled for trial on March 7, 2018.

{¶3} On the day of trial, Sweeting was informed that a jury was present and

waiting in the hallway for the proceedings to begin. Sweeting replied, “I never asked

for a jury. I am having a bench trial. You was the one that set it up for a jury. Ain’t

2 OHIO FIRST DISTRICT COURT OF APPEALS

nobody told me nothing about that [Judge] Dinkelacker.” Sweeting reaffirmed that

he wanted a bench trial, and the trial court searched for a waiver form.

{¶4} While the court was securing a jury-waiver form, Sweeting addressed

the court and asked for a continuance for a litany of reasons that the trial court

patiently addressed. First, Sweeting had filed an affidavit of disqualification alleging

that he had filed criminal charges against the judge and asking that the judge be

removed from the case due to the appearance of impropriety. The judge informed

Sweeting that the Ohio Supreme Court had overruled his affidavit. Additionally, the

court explained that no criminal charges had been instituted against him, and that

the court proceedings could continue.

{¶5} Finally, Sweeting explained that he was not prepared for trial because

his standby counsel told him that the trial had been postponed for a day, so he did

not have the necessary paperwork for trial. Standby counsel confirmed that he had

told Sweeting earlier that morning that the trial had been delayed until the following

day. The court overruled the request and reminded Sweeting that he had never come

to court prepared and had been warned to be ready for trial.

{¶6} After the continuance was denied, Sweeting asked the judge to recuse

himself alleging that the judge was biased and prejudiced against him. After

allowing Sweeting to express his opinion, the court asked him if he wanted to

proceed with the jury. Sweeting opined that juries do not know about the law and

can be persuaded. When standby counsel addressed the court and stated, “Your

honor, before we bring the jury in,” Sweeting interrupted and exclaimed, “I am not

having no jury. I object to this. I am not having no jury because you are trying to

blame it on the jury. You are not going to blame it on the jury. I want a bench trial.”

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} When the court attempted to confirm that he wanted a bench trial,

Sweeting responded, “You are not binding me in no contract, no contract with you.”

Shortly thereafter, the court engaged in following colloquy:

THE COURT: I have a jury waiting out there.

MR. SWEETING: I am not picking no jury. I am not having no jury.

THE COURT: You do not want a jury. Okay. I have in my hand, then,

a waiver of trial by jury. Before we can proceed - -

MR. SWEETING: You are not binding me in no contract.

THE COURT: It says: I Deionandrea Sweeting - - listen for a second,

please. I Deionandrea Sweeting, the defendant in the above cause,

hereby voluntarily waive my right to a trial by jury. I fully understand

--

MR. SWEETING: I am not binding any contract you trying to put me

in. I am not. I am not binding into any contract what you talking

about.

THE COURT: I am reading this to you.

MR. SWEETING: I ain’t binding into no contract.

THE COURT: You do not want a jury; is that correct?

MR. SWEETING: I am not going to allow you to hear me on the case.

THE COURT: You don’t want a jury?

MR. SWEETING: I am not going to allow you to hear me on the case. I

didn’t say that. You keep saying that. You trying to bribe me. You

trying to bribe me into settling the matter. You are not going to bribe

me. I am not going. I am not going. You trying to bribe me.

4 OHIO FIRST DISTRICT COURT OF APPEALS

THE COURT: Don’t use the word bribe again.

MR. SWEETING: That’s what you doing.

THE COURT: If you do it again, you use that again, you use the word

bribe against me again, and I am going to hold you in contempt.

MR. SWEETING: Hold me in contempt. What can I lose? What can I

lose?

THE COURT: You want to proceed with jury trial or - -

MR. SWEETING: You keep trying to bind me into a contract. You

can’t bind me to settle the matter. That’s what you are doing. And

now you know what you doing.

THE COURT: I think based upon everything that has happened,

Counsel, I know you are just standby, [prosecutor], he is not going to

proceed in an orderly fashion no matter what I do. He has indicated

earlier that he does not want a jury. He will not sign or listen to a

waiver of trial by jury - - hold on now.

One more time, I believe at this point it is appropriate for me to

procced without a jury. He indicated several times he does not want a

jury, and I think it is best to do that with the waiver of trial by jury,

which he will not sign, will not do anything with. I am at a loss for

Court of Appeals or anybody else as to what to do. I think the fair

thing is to honor his request not to have a jury, so we are going to

proceed without a jury.

{¶8} The court proceeded to a bench trial, and Sweeting objected. After a

brief recess to dismiss the jurors, the trial court declared that “based upon what Mr.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Sweeting has indicated for the record, I take it as a waiver of his trial by jury.” The

court journalized a jury waiver that was not signed by Sweeting, with the following

notation: “Mr. Sweeting indicated on the record he did not want a jury trial. He

refused to respond to the court’s request to sign this waiver even though he indicated

he wanted a trial to the court.” The waiver form was signed by the judge. The case

proceeded to trial, and the trial court rendered a guilty verdict and sentenced

Sweeting to 18 months’ incarceration.

{¶9} On appeal, Sweeting presents a single assignment of error contending

that the court had no jurisdiction to conduct a bench trial without a proper jury

waiver.

Validity of Jury Waiver

{¶10} 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. Under Crim.R. 23(A), a defendant may “may knowingly, intelligently, and

voluntarily waive in writing his right to trial by jury.” 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 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

6 OHIO FIRST DISTRICT COURT OF APPEALS

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.

{¶11} 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,

,

,

. Trial

courts must strictly comply with these five requirements. See id. at ¶ 41; State v.

Pless,

,

(1996), paragraph one of the syllabus

(holding that the jury-waiver requirements in R.C. 2945.05 must be strictly

observed).

{¶12} The Ohio Supreme Court has repeatedly held that strict compliance

with R.C. 2945.05 is necessary for a valid jury waiver. See, e.g., State ex rel. Larkins

v. Baker,

,

(1995) (holding that the trial court had

failed to strictly comply with R.C. 2945.05, since there was no evidence that Larkins’s

written waiver form had ever been formally filed and made a part of the record in the

criminal case); State ex rel. Jackson v. Dallman,

,

(1994) (stating that “[t]here 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”);

(finding that the requirements of R.C. 2945.05 are clear and

7 OHIO FIRST DISTRICT COURT OF APPEALS

unambiguous, and the statute “requires that in order to effectuate a valid waiver of

the right to trial by jury, the defendant in a criminal action must sign a written

waiver * * * .”).

{¶13} Moreover, a valid jury waiver must be in writing. See State v. Tate,

,

(1979) (“[w]here a defendant in a petty offense

case has a right to trial by jury and pleads not guilty and demands a jury trial in the

manner provided by Crim.R. 23(A), 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.

Anderson, 12th Dist. Fayette No. CA91-02-003,

, *2 (Jan. 27, 1992)

(concluding that despite the defendant’s oral jury waiver, the “trial court has no

jurisdiction to hear opening statements or the first witness in a criminal case until a

written waiver has been executed by the defendant”). In the absence of strict

compliance, a trial court lacks jurisdiction to try the defendant without a jury. Pless

at paragraph one of the syllabus, citing State v. Tate,

,

(1979).

{¶14} After reviewing the record, we find that the jury-waiver requirements

were not satisfied in this case. Sweeting 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. See

; Anderson at *2. While we understand

the difficult situation faced by the trial court and appreciate the patience exhibited by

the court, we conclude that in the absence of a written jury waiver signed by the

defendant, the trial court lacked jurisdiction to try Sweeting without a jury. See Pless

at paragraph one of the syllabus.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} The state contends, without citing to any legal authority, that the

written waiver that the judge read to Sweeting, signed, and filed coupled with

Sweeting’s oral request for a bench trial satisfies the mandates of R.C. 2945.05. In

effect, the state is arguing that, under these circumstances, Sweeting implicitly

waived his jury-trial right.

{¶16} First, we note that the content of a written jury waiver need only

substantially comply with the language set forth in R.C. 2945.05. See State v.

Woodbridge, 9th Dist. Summit No. 26911,

; State v. Bell, 2017-

Ohio-7512,

(2d Dist.). The purpose of the written waiver is to

ensure that the defendant’s waiver is intelligent, knowing, and voluntary. See State

v. Brown, 6th Dist. Wood No. WD-09-058,

, ¶ 91. “A defendant

must have some knowledge of the nature of the jury trial right to make a valid

waiver.” See State v. Bays,

,

(1999).

{¶17} Although the trial court started to read the jury waiver to Sweeting in

open court, the judge did not read the waiver in its entirety. The judge read to him

the following: “I Deionandrea Sweeting, the defendant in the above cause, hereby

voluntarily waive my right to a trial by jury. I fully understand - -.” The judge

omitted two critical pieces of information: (1) that he was “elect[ing] to be tried by a

Judge of the Court”; and (2) that he fully understood “that under the laws of this

state, [he has] a constitutional right to a trial by jury.” See R.C. 2945.05.

{¶18} Even if we could construe the reading of a written waiver to substitute

for a written waiver signed by the defendant as required by R.C. 2945.05, the

substance of the waiver read to Sweeting contained no language to communicate that

Sweeting had a constitutional right to a jury trial and that he was electing to be tried

9 OHIO FIRST DISTRICT COURT OF APPEALS

by a judge. As the court acknowledged, the written waiver was not read to Sweeting

in its entirety, and Sweeting did not personally read or review the written waiver

form. Accordingly, the substance of the communicated waiver did not comply with

R.C. 2945.05. See Woodbridge at ¶ 7 (holding a jury waiver was invalid because

there was nothing in the written waiver indicating that the defendant understood

that he had a constitutional right to a jury trial).

{¶19} Furthermore, the Ohio Supreme Court has considered and rejected the

proposition that an implicit waiver can substitute for a written waiver signed by the

defendant. See Tate,

,

. In Tate, a written

demand for a jury trial was filed by Tate’s counsel, but his case was tried to the

bench. Affidavits to the court of appeals indicated that Tate’s counsel had orally

waived Tate’s right to a jury trial. The Ohio Supreme Court noted that:

Affidavits were presented to the Court of Appeals indicating that

attorney Gaines orally waived appellant’s right to a jury trial during a

discussion with the judge. The Court of Appeals found that these

affidavits ‘do not meet the definition of the record on appeal as set out

in App.R. 9, and accordingly cannot be considered.’ While we concur

in this ruling, it should become apparent that the presence of these

affidavits would change neither the reasoning of this opinion, nor our

final judgment.

.

That footnote confirms that the Ohio Supreme Court recognizes that a written jury

waiver, signed by the defendant, is mandatory for a valid waiver. See

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} Moreover, the state’s argument fails because there is nothing in this

record to indicate that Sweeting had the requisite knowledge and understanding of

the nature of the jury-trial right to orally waive it. See Bays,

,

. The colloquy between the trial court and Sweeting did not establish

that Sweeting knowingly and intelligently waived his right to a jury trial.

{¶21} Initially when informed a jury was waiting, Sweeting did not

understand that the jury was summoned because he had a constitutional right to a

jury. Instead, he believed that the judge had ordered a jury because the judge was

“trying to blame the jury.” When the court mentioned the jury-waiver form,

Sweeting repeatedly told the judge that he would not be bound in a contract with the

judge and further explained his belief that the judge was attempting to get him to

“settle the matter.” Based on Sweeting’s comments and responses, we cannot

conclude that he understood or knew that he had a constitutional right to a jury trial

that he could waive by signing the jury-waiver form.

{¶22} The dissent determines that strict compliance was achieved by the

signature of the trial court on the jury waiver primarily due to Sweeting’s refusal to

sign the jury waiver. Based on a careful review of the record and colloquy, we cannot

conclude that Sweeting refused to sign the jury waiver. The record does not reflect

that Sweeting was given the jury waiver, was asked to read the jury waiver, was

informed that he was required to sign the jury waiver if he wanted a bench trial, or

was asked to sign the jury waiver.

{¶23} Had Sweeting been informed that his signature on the jury waiver was

required in order to have a bench trial, he would have either signed the waiver or

refused. His signature would have provided the trial court with the jurisdiction to

11 OHIO FIRST DISTRICT COURT OF APPEALS

conduct a bench trial. His refusal to sign would have resulted in an impartial jury

trial as guaranteed by the state and federal constitutions. By reaffirming strict

compliance with R.C. 2945.05, we continue to protect the constitutional rights of all

defendants. The effect of a local rule1 is not a factor we consider in determining

whether the jury-waiver requirements in R.C. 2945.05 were strictly observed.

Conclusion

{¶24} For the foregoing reasons, we conclude that Sweeting 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 did not have jurisdiction to conduct a bench trial.

Accordingly, we sustain the assignment of error, reverse the judgment of the trial

court and remand the cause for further proceedings consistent with this opinion and

the law.

Judgment reversed and cause remanded.

CROUSE, J., concurs. MYERS, J., dissents.

MYERS, J., dissenting. {¶25} Courts must scrupulously honor a defendant’s rights and must diligently follow the law. Because I find the trial court did exactly that in this case, I

must dissent. When a defendant not only knowingly, intelligently, and voluntarily

waives his right to a jury trial, but also demands a bench trial in no uncertain terms,

but then refuses to sign the written jury waiver, I would hold that there has been

strict compliance with R.C. 2945.05 when the waiver is signed by the trial judge on

the defendant’s behalf. This is particularly true when the defendant has tried every

1 Loc.R. 7(F) of the Court of Common Pleas of Hamilton County, General Division states, in relevant part, “When a new trial is ordered, for any reason, either by the judge who originally tried the case or by a reviewing court, the case, for purposes of such new trial, shall be reassigned by lot in accordance with the system authorized by Paragraph B hereof.”

12 OHIO FIRST DISTRICT COURT OF APPEALS

means possible to get the trial judge removed from his case and has been denied in

his efforts by the Supreme Court of Ohio. By refusing to sign the jury waiver when he

demanded a bench trial and insisted that he did not want a jury trial, Sweeting has

accomplished through the majority just what he was denied by the Supreme Court,

having a trial by a judge other than the assigned trial judge. See Loc.R. 7(F) of the

Court of Common Pleas of Hamilton County, General Division.2

{¶26} I recognize and agree with the majority that R.C. 2945.05 requires strict compliance. And I agree that one of the requirements is that the written waiver

be signed by the defendant. But if a defendant refuses to sign, he himself has made

his signature an impossibility. Surely we are not suggesting that the trial court

should have forcibly required him to sign. Nor could we be suggesting that the court

should have required him to sign under threat or duress. Then what option did the

trial court have? I suppose the court could have brought the jury into the courtroom

and begun a jury trial. But when a defendant is adamantly declaring over and over in

open court that he does not want a jury trial and explicitly demands a bench trial,

how could this be the correct option for the trial court? I suggest it is not. And I

suggest that under the unique facts of this case, the statute has been strictly complied

with.

{¶27} The majority sets forth the colloquoy between the court and Sweeting that took place on the day of trial. But this was not the only time Sweeting made his

wishes known to the trial court. As early as December 18, 2017, the day that

Sweeting’s second counsel was appointed to represent him, Sweeting asked that

counsel be removed because counsel had not yet filed an affidavit of bias and

prejudice with the Supreme Court of Ohio to remove the trial judge. The court

2Should there be any doubt of Sweeting’s intentions, one only has to see his own words: “Why don’t you just recuse yourself? What’s so hard about that?” The court replied, “Because I try to do the right thing.”

13 OHIO FIRST DISTRICT COURT OF APPEALS

overruled Sweeting’s oral motion to remove counsel and told counsel to file whatever

he needed to file. Then, Sweeting told the judge that he wanted a trial. A trial date of

January 11, 2018, was selected, and the court made sure Sweeting heard what the

date was.

{¶28} On January 11, 2018, the trial did not occur because Sweeting’s affidavit of disqualification was pending before the Supreme Court of Ohio. The trial

court continued the matter on its own motion as it awaited the Supreme Court’s

decision.

{¶29} On January 24, 2018, the Supreme Court denied Sweeting’s affidavit of disqualification.

{¶30} Then, on February 1, 2018, after the trial court noted that the Supreme Court had denied Sweeting’s request to remove him, the court informed the parties

that it wanted to select a trial date. Sweeting again requested the removal of

appointed counsel and indicated that he wanted to represent himself. The trial court

permitted counsel to withdraw and appointed standby counsel for Sweeting. Of note

is that Sweeting himself signed the continuance entry, which clearly stated that the

case was continued at Sweeting’s request and set for jury trial on March 7, 2018. In

fact, he signed it twice—once on the line for his own signature and once on the line

for defense counsel.

{¶31} Sweeting was back in court on February 15, 2018, for a hearing on his pro se motion to dismiss. He confirmed that he still wanted to represent himself.

Sweeting was not prepared to argue the motion, so the court continued the hearing

until February 21. The court reminded Sweeting of the March 7 trial date.

{¶32} On February 22, Sweeting appeared and confirmed he had the entry setting trial for March 7, which he earlier signed. He again attempted to get the trial

judge removed from the case. Sweeting refused to proceed on his motion to dismiss.

He also claimed he was filing criminal charges and a writ of mandamus against the

14 OHIO FIRST DISTRICT COURT OF APPEALS

trial judge. The judge refused to recuse himself and reiterated that the trial would

proceed on March 7. Then the following exchange occurred:

MR. SWEETING: I object to that. I am not coming.

THE COURT: Make it clear to you, thought I made it clear, I

am making it very clear to you, Mr. Sweeting. We will be going to trial

on March 7. If you come in unprepared, that’s on you.

{¶33} The court then re-emphasized why Sweeting should reconsider representing himself and reminded him of the dangers of doing so. The court then

stated, “This trial will proceed on March 7. Be prepared to go to trial.” Sweeting

responded, “Okay. Hopefully not with you. Thank you.”

{¶34} Then on the day of trial, Sweeting and the court engaged in the interaction about the jury as quoted by the majority, adamantly stating that he did

not want a trial by jury and demanding a bench trial. There is no question that

Sweeting understood that he had a right to a jury trial. He signed the entry setting

the case for jury trial; he knew the jury was in the hall; and the court continually had

informed him that the case would be tried to a jury. This is not a case of implicit

waiver. Sweeting was explicit.

{¶35} As the majority correctly points out, five things are necessary for a valid jury waiver. 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.” Lomax,

,

,

, at ¶ 9. Here, the waiver was in writing, filed, made

part of the record, and was made in open court. And it was signed. The only

question is whether the signature of the judge suffices under the unique facts of this

case.

{¶36} I would find that a defendant cannot demand a trial without a jury, request a bench trial, refuse to sign the jury waiver, and then declare the waiver

invalid because he refused to sign. His own actions in refusing to sign the jury

15 OHIO FIRST DISTRICT COURT OF APPEALS

waiver made strict compliance impossible. In this limited case, I would find that the

judge’s signature was sufficient for strict compliance.

{¶37} Finally, I disagree with the majority’s conclusion that Sweeting did not knowingly, intelligently, and voluntarily waive his right to a jury. The record is clear

that Sweeting understood that he had a right to a jury trial. He even asked for one

earlier in the case. I disagree with the majority’s conclusion that Sweeting did not

understand that he had a right to a jury. The statement of Sweeting relied on by the

majority is as follows:

MR. SWEETING: I am not having no jury. I object to this. I

am not having no jury because you are trying to blame it on the jury.

You are not going to blame it on the jury. I want a bench trial.

THE COURT: Let’s back it up, then. You want a bench trial; is

that correct?

MR. SWEETING: You not binding me in no contract, no

contract with you.

{¶38} But the exchange immediately prior clarifies Sweeting’s meaning. Apparently recognizing that his failure-to-register charge involved a legal issue more

than a factual issue, Sweeting stated that he wanted a bench trial because “[j]uries

don’t know nothing about law. They can be persuaded.” He was not confused at all

about his right to a jury trial and why he wanted a bench trial. And his waiver was

voluntary. In fact, he refused to have his case tried before a jury. Whether it was a

delay tactic or an attempt to have another judge hear the case is irrelevant.

{¶39} In conclusion, I would find that Sweeting, who insisted that his case not be tried to a jury, demanded a bench trial, and then refused to sign a jury waiver,

rendered the requirement that he personally sign the waiver an impossibility, and

that under these limited circumstances, signature by the judge on his behalf on the

16 OHIO FIRST DISTRICT COURT OF APPEALS

jury waiver constituted strict compliance. Sweeting’s constitutional right to a jury

trial was protected and waived by him. I would affirm.

Please note: The court has recorded its own entry this date.

17