IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2024 Term FILED _______________ June 7, 2024 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 22-771 SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
V.
BRADLEY ROHRBAUGH, Defendant Below, Petitioner.
____________________________________________________________
Appeal from the Circuit Court of Grant County The Honorable Lynn A. Nelson, Judge Case No. 21-F-38
VACATED AND REMANDED ____________________________________________________________
Submitted: May 1, 2024 Filed: June 7, 2024
Jeremy B. Cooper, Esq. Patrick Morrisey, Esq. Blackwater Law PLLC Attorney General Aspinwall, Pennsylvania Andrea Nease Proper, Esq. Attorney for the Petitioner Deputy Attorney General Charleston, West Virginia Attorney for the Respondent
JUSTICE BUNN delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “Certain constitutional rights are so inherently personal and so tied to
fundamental concepts of justice that their surrender by anyone other than the accused acting
voluntarily, knowingly, and intelligently would call into question the fairness of a criminal
trial.” Syllabus point 5, State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988).
2. “The right to a jury trial is so fundamental that procedural safeguards
must be employed, including making an appropriate record of any waiver of this right, to
ensure that a defendant’s waiver of the right was made personally, knowingly, intelligently
and voluntarily. State v. Neuman, 179 W. Va. 580, 584, 371 S.E.2d 77, 81 (1988).” Syllabus
point 3, State v. Redden, 199 W. Va. 660, 487 S.E.2d 318 (1997).
3. “[W]hen the record contains no written waiver of the right to a jury
trial personally signed by the defendant, as required by West Virginia Rule[] of Criminal
Procedure 23(a), and a defendant contends that he or she did not personally, knowingly,
intelligently, and voluntarily waive the right to a jury trial, the jury trial waiver is valid only
when the record firmly establishes the defendant’s personal, knowing, intelligent and
voluntary waiver of the right to a jury trial.” Syllabus point 7, in part, State v. Redden, 199
i BUNN, Justice:
Petitioner Bradley Rohrbaugh appeals the Circuit Court of Grant County’s
September 22, 2022 order sentencing him to one to five years of imprisonment after a
bench trial convicting him of fleeing from an officer with reckless indifference, in violation
of West Virginia Code § 61-5-17(f). In this appeal, Mr. Rohrbaugh asserts that he did not
waive his right to a jury trial voluntarily, knowingly, and intelligently and that the circuit
court erred by finding that he wished to waive this right and then conducting a bench trial.
He also claims that the circuit court’s factual findings, after the bench trial, do not support
his conviction. We agree that the circuit court erred by finding that Mr. Rohrbaugh waived
his right to a jury trial and subsequently holding a bench trial. As we resolve the matter on
that ground, we do not address his contention regarding the sufficiency of the evidence.
I.
FACTUAL AND PROCEDURAL HISTORY
Late on July 3, 2021, a member of the West Virginia State Police (“the State
Trooper”) purportedly saw Mr. Rohrbaugh driving in Grant County at a high rate of speed.
The State Trooper activated his emergency lights in an attempt to initiate a traffic stop,
while Mr. Rohrbaugh allegedly continued accelerating, reaching speeds of approximately
one hundred miles per hour and crossing the center line in sharp, blind turns. Mr.
Rohrbaugh ultimately came to a stop, and the State Trooper searched the vehicle and
arrested Mr. Rohrbaugh and his passenger.
1 The next day, the State Trooper filed a criminal complaint accusing Mr.
Rohrbaugh of violating West Virginia Code § 61-5-17(f), fleeing from an officer with
reckless indifference. The grand jury later returned a one-count indictment charging Mr.
Rohrbaugh with violating West Virginia Code § 61-5-17(f). Mr. Rohrbaugh filed numerous
pretrial motions, including motions to suppress the search of his vehicle and his statement
and to prevent the State from disclosing, “in front of the jury,” numerous circumstances
relating to Mr. Rohrbaugh’s status as a felon and circumstances of his arrest.
At the motions hearing, the prosecuting attorney informed the circuit court
that Mr. Rohrbaugh’s defense counsel had recently told him, “We’re thinking about a bench
trial.” The prosecuting attorney then advised the circuit court, “I think we’re here just to
schedule a bench trial before you on a single charge.” The court asked counsel about the
estimated length of the trial, but did not directly address Mr. Rohrbaugh about either Mr.
Rohrbaugh’s desire for a bench trial or his right to a jury trial. After the hearing, the circuit
court entered an order stating that “the [c]ourt was advised that [Mr. Rohrbaugh] wished to
waive his right to a jury trial.” The court then scheduled the bench trial.
On the day of the trial, the circuit court stated that “We’re here for a bench
trial, is my understanding.” Defense counsel confirmed, responding “Yes, your honor.” The
prosecuting attorney notified the court that both parties were waiving opening and closing
arguments. Defense counsel also reminded the court that Mr. Rohrbaugh had filed a motion
2 “to suppress the stop,” and suggested that the parties address that issue when the State
Trooper who stopped Mr. Rohrbaugh testified. The State Trooper testified, and then Mr.
Rohrbaugh testified. The circuit court did not advise Mr. Rohrbaugh of any constitutional
rights before he testified in his own defense. The State called the State Trooper again to
testify on rebuttal. After the trial of less than one hour, the circuit court found Mr.
Rohrbaugh guilty of the charged offense. Four days later, on June 13, 2022, the court
entered a written order memorializing the bench trial and guilty verdict. The circuit court
later sentenced Mr. Rohrbaugh to one to five years imprisonment, and he now appeals.
II.
STANDARD OF REVIEW
The circuit court’s determination of whether a defendant’s waiver of a jury
trial was voluntary, knowing, and intelligent is a legal question reviewed de novo, while
the circuit court’s findings of fact are reviewed under the clearly erroneous standard. Syl.
pt. 1, State v. Redden, 199 W. Va. 660, 487 S.E.2d 318 (1997).1 Syllabus point 1 of Redden
provides the following:
A trial court’s ultimate determination of the knowing, intelligent voluntariness of a criminal defendant’s waiver of the
1 Although Mr. Rohrbaugh did not object to the failure of the court to obtain a waiver of the jury trial, we need not reach plain error review in this case based upon the standard set forth in State v. Redden. Nonetheless, we have recognized that “even if error is invited, ‘under Rule 23(a) the primary responsibility for protecting the right to trial by jury rests on trial judges and prosecutors.’” Redden, 199 W. Va. 660, 665, 487 S.E.2d 318,
3 constitutional right to a jury trial is upon review a legal question requiring independent appellate determination. In such a case, although appellate review of the trial court’s ultimate determination is plenary and de novo, this Court will review specific findings of fact by the trial court which underlie its determination under the deferential “clearly erroneous” standard.
Id. Yet, if the trial court merely states that the waiver was knowing, intelligent, and
voluntary, but “did not make specific factual findings going to the knowing, intelligent and
voluntary nature of the appellant’s jury trial waiver, we will uphold the trial court’s
determination ‘only if a reasonable review of the evidence clearly supports [the trial court’s
determination.]’” Id. at 666, 487 S.E.2d at 324 (alteration in original) (quoting State v.
Farley, 192 W. Va. 247, 254, 452 S.E.2d 50, 56-57 (1994)).
III.
DISCUSSION
We find that the trial court violated Mr. Rohrbaugh’s constitutional right to a
jury trial by proceeding with a bench trial without ensuring that Mr. Rohrbaugh waived his
right to a jury trial voluntarily, knowingly, and intelligently. Because we determine his
conviction and sentence should be vacated and remanded on that issue, we need not reach
the issue of whether substantial evidence supported the conviction.
323 (1997) (quoting United States v. Garrett, 727 F.2d 1003, 1013 (1984), aff’d, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985), superseded by statute as recognized in United States v. Christian, 614 F. App’x 1001 (11th Cir. 2015)).
4 The right to a jury trial stems from the West Virginia and the United States
Constitutions. Article III, section 14 of the West Virginia Constitution, entitled “Trials of
Crimes – Provisions in Interest of Accused” provides:
Trials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men,[2] public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witness against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defence; and there shall be awarded to him compulsory process for obtaining witnesses in his favor.
Likewise, the Sixth Amendment of United States Constitution, through the Fourteenth
Amendment, extends the guarantee of an impartial jury to defendants in “serious” state
prosecutions. See Duncan v. Louisiana, 391 U.S. 145, 154, 88 S. Ct. 1444, 1450, 20
L. Ed. 2d 491 (1968) (noting that “the right to jury trial in serious criminal cases is a
fundamental right and hence must be recognized by the States as part of their obligation to
extend due process of law to all persons within their jurisdiction”).3
2 Article III, section 21 of the West Virginia Constitution provides that women are eligible for criminal jury service. 3 The federal right to a jury trial reaches certain state defendants through the Fourteenth Amendment:
Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in
5 This Court has recognized the constitutional right to a jury trial can only be
waived voluntarily, knowingly, and intelligently. “Certain constitutional rights are so
inherently personal and so tied to fundamental concepts of justice that their surrender by
anyone other than the accused acting voluntarily, knowingly, and intelligently would call
into question the fairness of a criminal trial.” Syl. pt. 5, State v. Neuman, 179 W. Va. 580,
371 S.E.2d 77 (1988); accord Syl. pt. 2, Redden, 199 W. Va. 660, 487 S.E.2d 318. A
defendant forsaking the fundamental right to a jury trial must make a personal voluntary,
knowing, and intelligent waiver of that right, as this Court observed in Syllabus point 3 of
Redden:
The right to a jury trial is so fundamental that procedural safeguards must be employed, including making an appropriate record of any waiver of this right, to ensure that a defendant’s waiver of the right was made personally, knowingly, intelligently and voluntarily. State v. Neuman, 179 W. Va. 580, 584, 371 S.E.2d 77, 81 (1988).[4]
199 W. Va. 660, 487 S.E.2d 318.
all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.
Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d 491 (1968). 4 The Neuman Court, in discussing whether a defendant validly waived his right to testify on his own behalf, recognized that the decision to testify was similar to the right to a jury trial. State v. Neuman, 179 W. Va. 580, 584, 371 S.E.2d 77, 81 (1988) (explaining that “the decision to testify [on] one’s own behalf, like the right to determine what plea to enter, the right to a jury trial, the right to counsel, and the right to be present at trial, is so fundamental that procedural safeguards must be employed on the record to insure that the defendant’s waiver of the right to testify was made voluntarily, knowingly,
6 Although Rule 23 of the West Virginia Rules of Criminal Procedure requires
that a defendant waive his or her jury trial rights in writing “‘with the approval of the court
and the consent of the state,’” still, if the record “firmly establishes” that a defendant’s
waiver is voluntary, knowing, and intelligent, the absence of a written waiver and a
subsequent bench trial will not constitute reversible error. Redden, 199 W. Va. at 669, 487
S.E.2d at 327 (quoting W. Va. R. Crim. P. 23(a)); 5 see also Syl. pt. 7, in part, Redden, 199
W. Va. 660, 487 S.E.2d 318 (acknowledging that “the failure to obtain a written waiver
signed by the defendant does not in itself make the jury trial waiver invalid”). In Syllabus
point seven, the Redden Court set forth the analysis we apply when, like here, a defendant
challenges his or her waiver to a jury trial and the record does not contain a written waiver:
[W]hen the record contains no written waiver of the right to a jury trial personally signed by the defendant, as required by West Virginia Rule[] of Criminal Procedure 23(a), and a defendant contends that he or she did not personally, knowingly, intelligently, and voluntarily waive the right to a jury trial, the jury trial waiver is valid only when the record
and intelligently”). While a defendant has a right to testify, a defendant has a right not to testify. See Syl. pt. 7, id. (noting that in addition to a trial court advising a defendant about his right to testify, a “defendant should also be advised that [the defendant] has a right not to testify and that if [the defendant] does not testify then the jury can be instructed about that right”). 5 West Virginia Rule of Criminal Procedure 23(a) states: “Trial by Jury. — Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state.” The written waiver requirement notifies a defendant of “‘the significance of the right relinquished’” and “‘provide[s] evidence’” of a defendant’s agreement to give up that right. Redden, 199 W. Va. at 669, 487 S.E.2d at 327 (quoting United States v. Robertson, 45 F.3d 1423, 1431 (10th Cir. 1995)).
7 firmly establishes the defendant’s personal, knowing, intelligent and voluntary waiver of the right to a jury trial.
Syl. pt. 7, in part, Redden, 199 W. Va. 660, 487 S.E.2d 318. In Redden, this Court
determined that a colloquy on the record demonstrated that the defendant made a
“knowing, intelligent and voluntary waiver of his right to a jury trial” without a written
waiver, although the Court acknowledged Rule 23 required a written waiver. Redden, 199
W. Va. at 669-70, 487 S.E.2d at 327-28 (discussing W. Va. R. Crim. P. 23(a)); see United
States v. Carmenate, 544 F.3d 105, 109 (2d Cir. 2008) (per curiam) (discussing writing
requirement of similar Federal Rule of Criminal Procedure 23(a) and noting that “the
absence of . . . a [defendant’s] signature will not constitute reversible error where, as here,
the record otherwise shows that defendant’s waiver was knowing, voluntary, and
intelligent,” and collecting cases).
Here, Mr. Rohrbaugh contends that the record contains no evidence that he
validly waived his right to a jury trial, and the trial court’s finding that he “wished” to waive
a jury trial has no support in the record, requiring this Court to vacate his conviction and
remand his case for a new trial. We agree. When, like here, “the record contains no written
waiver of the right to a jury trial personally signed by the defendant,” and, also like here,
“a defendant contends that he or she did not personally, knowingly, intelligently, and
voluntarily waive the right to a jury trial,” we look to the record. Syl. pt. 7, in part, Redden,
199 W. Va. 660, 487 S.E.2d 318. While his attorney agreed to the bench trial, the record
reveals neither a written waiver nor a colloquy between the circuit court and Mr. Rohrbaugh
8 addressing his understanding of his right to a jury trial and waiver of that right.
Furthermore, the circuit court failed to make any finding regarding whether Mr.
Rohrbaugh’s purported waiver of a jury trial was voluntary, knowing, and intelligent. Here,
unlike Redden, the record fails to “firmly establish[]” any “knowing, intelligent[,] and
voluntary waiver of the right to a jury trial,” particularly as the record indicates that the
circuit court neglected to determine whether Mr. Rohrbaugh personally desired to waive
his right to a jury trial at all. See id.; see also United States v. Robertson, 45 F.3d 1423,
1432-33 (10th Cir. 1995) (reversing and remanding a conviction when the waiver lacked
the signature of the defendant and the trial court “never inquired as to the circumstances
surrounding the waiver and no discussion was ever held in the presence of [the defendant]
regarding her decision to waive the right to trial by jury”).
The State’s primary argument—that the totality of the circumstances show
Mr. Rohrbaugh voluntarily, knowingly, and intelligently waived his right to a jury trial—
lacks merit. This contention regarding the totality of the circumstances relies on Syllabus
point five of Redden, which states:
Whether a criminal defendant’s waiver of the right to a jury trial is personal, knowing, intelligent and voluntary is a matter to be determined by looking at the totality of the circumstances. In making such a determination, the fact that the defendant has personally executed a written document reflecting the waiver of the right to a jury trial, and the fact that the defendant had the advice of counsel at the time of waiver, are probative that the waiver was personal, knowing,
9 intelligent and voluntary—but they are not necessarily determinative.
199 W. Va. 660, 487 S.E.2d 318. The State sets forth the following factual allegations in
support of its argument: Mr. Rohrbaugh had advice of counsel, knew about the motions in
limine that mentioned preventing a jury from hearing evidence, was present when counsel
discussed a bench trial with the circuit court, and actively participated by testifying at the
trial. The State further contends that Mr. Rohrbaugh is “no stranger to the criminal justice
system.” While strategic reasons may exist where a defendant may prefer a bench trial
rather than a jury trial, nonetheless, a defendant still must voluntarily, knowingly, and
intelligently waive that “inherently personal” constitutional right. See Syl. pt. 5, in part,
Neuman, 179 W. Va. 580, 371 S.E.2d 77; accord Syl. pt. 2, Redden, 199 W. Va. 660, 487
S.E.2d 318. Although Mr. Rohrbaugh’s attorney submitted to the bench trial, and Mr.
Rohrbaugh cooperated during the trial, nothing in the record indicates Mr. Rohrbaugh made
or personally considered a waiver of his right to a jury trial, much less that the waiver was
voluntary, knowing, and intelligent. We cannot accept the State’s argument based on the
totality of the circumstances in light of the facts before this Court, as it would “permit the
waiver of a fundamental constitutional right based on nothing more than conjecture and
speculation.” Robertson, 45 F.3d at 1433. As the United States Tenth Circuit Court of
Appeals explained, “[t]he right of trial by jury is one enjoyed by the people as well as
defendants and courts should be hesitant to dispense with that right.” Id.
10 The State also appears to urge the Court to adopt the reasoning set forth in
United States v. Garrett and find Mr. Rohrbaugh consented to the waiver of his jury trial
right, although there was no written waiver, because Mr. Rohrbaugh does not “assert[] he
was unaware of his jury right or that he did not consent to its waiver.” See Garrett, 727
F.2d 1003, 1012-13 (11th Cir. 1984), aff ’d, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. 2d
764 (1985), superseded by statute as recognized in United States v. Christian, 614 F. App’x
1001 (11th Cir. 2015). The Garrett court reasoned that, in circumstances where a defendant
fails to sign a written waiver, a trial court proceeding with a bench trial should not be
reversed when either a defendant’s admission or the plain demonstration by the government
shows “that at the time of the waiver the defendant was not ignorant of his jury right and
consented to the waiver,” as the defendant “invited or induced” the error. Id. at 1012.6
Given the guidelines set forth in Redden concerning how to determine whether a defendant
validly waived the right to a jury trial in the absence of a written waiver—by looking to
the record to determine whether it “firmly establishes the defendant’s personal, knowing,
intelligent and voluntary waiver of the right”—we do not find the Garrett approach
persuasive.7 See Syl. pt. 7, in part, Redden, 199 W. Va. 660, 487 S.E.2d 318. As the court
6 The Garrett court remanded the case back to the trial court for an evidentiary hearing to determine whether the defendant knew of his right to a jury trial and agreed to his counsel’s waiver of that right. Garrett, 727 F.2d at 1013. 7 At oral argument, the State suggested that this Court follow the memorandum decision in State v. Scott K., No. 20-0545, 2022 WL 123425 (W. Va. Jan. 12, 2022) (memorandum decision), although the State did not cite this case in its brief. The procedural posture of Scott K., which presented an appeal from the denial of an untimely
11 in Garrett recognized, and we reiterate, the jury trial right “‘is a precious one.’” Garrett,
727 F.2d at 1013 (quoting United States v. Page, 661 F.2d 1080, 1082 (5th Cir. 1981)).
IV.
CONCLUSION
For the reasons stated above, this Court vacates Mr. Rohrbaugh’s conviction
and the September 22, 2022 order sentencing Mr. Rohrbaugh to one to five years of
imprisonment and remands the case for further proceedings consistent with this opinion.
Vacated and remanded.
filed motion to dismiss, is not analogous to the present case and we do not find its analysis persuasive here.