State v. Simmons , 2012 Ohio 268 ( 2012 )

[Cite as State v. Simmons, 2012-Ohio-268.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96778
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONALD SIMMONS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-541368
BEFORE: Sweeney, P.J., Jones, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik, Esq.
Assistant Public Defender
By: John T. Martin, Esq.
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Steven E. Gall, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant appeals from his conviction for aggravated murder with
firearm specifications. On appeal, he asserts that his constitutional rights were violated in
relation to his jury waiver. For the reasons that follow, we affirm.
{¶ 2} Defendant executed a voluntary waiver of jury trial on April 11, 2011 that
was filed the same day. The court addressed defense counsel and defendant in open court
concerning defendant’s decision to waive his right to a jury. Specifically, the court
confirmed that defense counsel had explained the jury waiver to defendant and that he
attested to it in writing. Defendant stated that he voluntarily executed the waiver. A bench
trial commenced after the defendant’s waiver of jury trial was filed and journalized.
Defendant’s sole assignment of error in this appeal is as follows:
{¶ 3} “The Defendant’s jury waiver was not knowingly[,] intelligently and
voluntarily entered.”
{¶ 4} Defendant maintains that the trial court’s colloquy with defendant and
counsel did not adequately establish that he understood the rights he was surrendering.
However, defendant acknowledges that the written waiver that he voluntarily executed
was “valid on its face.” We construe this to mean that it adequately advised defendant of
his constitutional rights and memorialized the fact of his executed waiver of them. The
written waiver also contains a certification from defense counsel as follows: “I have
explained to my client his/her rights under the Constitution and laws of the United States
and the State of Ohio to a trial by jury. No threats or promises have been made to induce
the Defendant to waive that right, and I certify that this waiver has been knowingly,
intelligently, and voluntarily made.”
{¶ 5} R.C. 2945.05 governs the waiver of a jury trial and provides:
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.
{¶ 6} In order to be valid, a jury waiver must satisfy five conditions: “[i]t must be
(1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5)
made in open court.” See State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872
N.E.2d 279, ¶9. The Ohio Supreme Court has further directed, “a trial court does not need
to engage in an extended colloquy with the defendant in order to comply with the statutory
requirement that a jury waiver be made in open court.” Lomax, 114 Ohio St.3d 350,
2007-Ohio-4277, 872 N.E.2d 279, ¶42. R.C. 2945.05 does “not mandate magic words, or
a prolonged colloquy.” Id. at ¶48. To be valid, there need only be “some evidence in the
record of the proceedings that the defendant acknowledged the waiver to the trial court
while in the presence of counsel, if any.” Id. at ¶42.
{¶ 7} The record establishes that defendant acknowledged the waiver to the trial
court while in the presence of his counsel. Defendant signed the written waiver; it was
filed and made part of the record and done in open court. This court has found valid the
waiver of these rights under factually analogous circumstances. See State v. Cantie, 8th
Dist. No. 93864, 2010-Ohio-5350, 2010 WL 4352266. This assignment of error is
accordingly overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR