State v. Barnhart , 2023 Ohio 1916 ( 2023 )

[Cite as State v. Barnhart, 2023-Ohio-1916.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
PEGGY A. BARNHART, MICHAEL D. BARNHART
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 22 CO 0014Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2020 CR 387
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Reversed, Vacated and Remanded.
Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Steven V. Yacovone,
Assistant Prosecuting Attorney, 135 South Market Street, Lisbon, Ohio 44432, for
Plaintiff-Appellee
Atty. William Kissinger, 7631 South Avenue, Suite F, Youngstown, Ohio 44512, for
Defendants-Appellants.
Dated: June 8, 2023
–2–
D’APOLITO, P.J.
{¶1} Appellants, Peggy A. Barnhart and Michael D. Barnhart, appeal their
convictions by the Columbiana Court of Common Pleas for one count each of breaking
and entering in violation of R.C. 2911.13, a felony of the fifth degree, following a trial to
the bench.1 Appellants advance two assignments of error. First, they assert their
convictions should be reversed because the waiver of jury trial entry filed by their trial
counsel was not signed by Appellants. Second, they contend that the verdicts are against
the manifest weight of the evidence.
{¶2} Because the trial court did not strictly comply with the statutory waiver
requirements, the trial court was without jurisdiction to try Appellants without a jury.
Therefore, the judgment of the trial court is reversed, Appellants’ convictions are vacated,
and this matter is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
{¶3} At a status conference on October 8, 2021, Appellants’ trial counsel stated,
“Your Honor, at this time, we will withdraw our right to a jury, and we will try that matter to
the bench.” (10/8/21 Hrg., p. 5.) The trial court responded, “Would you put that in a
written motion?” Appellant's trial counsel replied, “I would be happy to.” The trial court
responded, “would prefer it that way.” Although Appellants were present, they did not
voice their waiver.
{¶4} As a consequence, a pleading captioned, “WAIVER OF RIGHT TO TRIAL
BY JURY,” was filed on behalf of Appellants on October 18, 2021. It reads, in pertinent
part:
Now comes the Defendants, Peggy A. Barnhart and Michael D. Barnhart,
by and through undersigned counsel, who respectfully waive their right to
1 Appellants were charged under separate case numbers, 2020 CR 387 and 388, and the cases
were assigned to different trial judges. On April 29, 2021, the state filed a pleading captioned
“State’s Request to Join Multiple Defendants in a Single Indictment” in both cases. Appellants
did not file a response. The trial judge in 2020 CR 388 deferred ruling on the motion to the trial
judge assigned to the lower-numbered case. On May 10, 2021, the trial court in 2020 CR 387
sustained the state’s motion, transferred 2020 CR 388 to her docket, and joined the two cases
“as a single indictment.”
Case No. 22 CO 0014–3–
trial by jury and consent to trial before the bench in the above captioned
matter.
{¶5} The pleading is electronically signed by Appellants’ trial counsel, but does
not bear Appellants’ signatures. The pleading indicates that a copy was forwarded to the
state.
{¶6} The trial court conducted the bench trial on December 21, 2021. The trial
court issued a judgment entry on February 15, 2022 finding both Appellants guilty of the
sole count in the single indictment.
{¶7} At the sentencing hearing on March 18, 2022, Appellants' trial counsel
challenged the efficacy of the waiver. The trial court continued the sentencing hearing to
May 16, 2022 in order to allow the parties to brief the issue. The state asserted the invited
error doctrine, that is, Appellants' trial court either intentionally or inadvertently failed to
produce a statutorily-compliant waiver.
{¶8} In a judgment entry dated May 17, 2022, the trial court imposed a thirty-day
term of incarceration in the county jail, followed by four years of probation, for each
Appellant. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT TRIED THE DEFENDANTS
WITHOUT THEIR SIGNATURES AFFIXED TO THE JURY TRIAL
WAIVER.
{¶9} The Sixth Amendment to the United States Constitution and Section 10,
Article I, of the Ohio Constitution provide criminal defendants with the right to a jury trial.
Five conditions must be met in order for a waiver of a defendant’s constitutional right to a
jury trial to be effective:
The waiver 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.
Case No. 22 CO 0014–4–
State v. VanFossen, 7th Dist. Carroll No. 21 CA 0953, 2022-Ohio-4022, 199 N.E.3d 716,
¶ 15.
{¶10} The requirements for waiver of a jury trial in Ohio are addressed by both
criminal rule and statute. “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.” Crim.R. 23(A). More specifically, R.C. 2945.05, captioned “Defendant may waive
jury trial,” reads in its entirety:
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.”
{¶11} The 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. The waiver may be
withdrawn by the defendant at any time before the commencement of the trial.
{¶12} The trial court need not engage in a lengthy colloquy with the defendant.
For instance, in State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d
905 (10th Dist.), the trial court stated to the defendant in open court, “it is my
understanding that you have waived your right to a jury trial and would like to have the
court decide this case,” and the defendant replied, “yes.” The Tenth District concluded
that the foregoing exchange satisfied the minimum requirements of R.C. 2945.05 and
Lomax. Id. at ¶ 13.
{¶13} Trial courts must strictly comply with the requirements of R.C. 2945.05.
State v. Pless (1996), 74 Ohio St.3d 333, 337, 339, 658 N.E.2d 766; State ex rel. Jackson
v. Dallman (1994), 70 Ohio St.3d 261, 262, 638 N.E.2d 563. “In the absence of strict
Case No. 22 CO 0014–5–
compliance with R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without
a jury.” Pless at 337, 74 Ohio St.3d 333, 658 N.E.2d 766.
{¶14} Further, pursuant to Pless and the cases reviewed therein, a defendant can
neither waive nor invite the error. See Pless, 74 Ohio St.3d 333. We have likewise held
that invited error is not a valid argument by the state to circumvent strict compliance with
R.C. 2945.05. State v. Croom, 7th Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 126-
131; State v. Harrison, 7th Dist. Mahoning No. 02CA157, 2004-Ohio-2933, ¶ 41-43.
{¶15} Prior to the bench trial in this case, there was no signed waiver from
Appellants and no acknowledgement in open court by Appellants regarding the waiver of
their constitutional right to a jury trial. Accordingly, we find that the first assignment of
error has merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AS THE CASE WAS TRIED TO THE BENCH
AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶16} Based on our resolution of the first assignment of error, we find that
Appellants’ second assignment of error is moot.
CONCLUSION
{¶17} For the foregoing reasons, the judgment of the trial court is reversed,
Appellants’ convictions are vacated, and this matter is remanded for further proceedings.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 22 CO 0014[Cite as State v. Barnhart, 2023-Ohio-1916.]
For the reasons stated in the Opinion rendered herein, the first assignment of
error is sustained and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Columbiana County, Ohio, is reversed and Appellants’
convictions are vacated. We hereby remand this matter to the trial court for further
proceedings according to law and consistent with this Court’s Opinion. Costs to be
taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.