State v. Diallo

2011 Ohio 5914

• Court: Ohio Court of Appeals
• Decided: November 18, 2011
• Docket: C-100828
• Status: Published

Opinion

[Cite as State v. Diallo, 2011-Ohio-5914.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-100828 TRIAL NO. B-1000263 Plaintiff-Appellee, : O P I N I O N. vs. :

MAMA DIALLO, :

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: November 18, 2011

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Following a bench trial, defendant-appellant Mama Diallo was

convicted of possessing more than 200 grams but less than 1000 grams of marijuana

in violation of R.C. 2925.11(A), a fifth-degree felony. R.C. 2925.11(C)(3)(c). In his

single assignment of error, Diallo argues that his conviction was contrary to the

manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541.

{¶2} While reviewing the entire record to assess the merits of his appeal,

we found no written jury waiver signed by Diallo. This omission is plain error that

we may address sua sponte. State v. Pflanz (1999), 135 Ohio App.3d 338, 339, 733

N.E.2d 1212, citing Civ.R. 52(B).

{¶3} Section 5, Article I, of the Ohio Constitution guarantees that the “right

of trial by jury shall be inviolate * * * .” Likewise, the Sixth Amendment to the

United States Constitution, made applicable to the states through the Fourteenth

Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed * * * .” State v. Lomax, 114 Ohio St.3d

350, 2007-Ohio-4277, 872 N.E.2d 279, ¶6, citing Duncan v. Louisiana (1968), 391

U.S. 145, 88 S.Ct. 1444.

{¶4} In a serious offense case, the defendant may knowingly, intelligently,

and voluntarily waive in writing his or her right to a jury trial. Crim.R. 23(A). Under

R.C. 2945.05, this 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.” Lomax at ¶9. Absent

strict compliance with these statutory requirements, “a trial court lacks jurisdiction

2 OHIO FIRST DISTRICT COURT OF APPEALS

to try the defendant without a jury.” State v. Pless, 74 Ohio St.3d 333, 1996-Ohio-

102, 658 N.E.2d 766, paragraph one of the syllabus. See, also, Pratts v. Hurley, 102

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶26 (explaining that the failure to

comply with R.C. 2945.05 does not affect a trial court’s subject-matter jurisdiction,

but rather involves “error in the court’s exercise of its jurisdiction.”).

{¶5} Because Diallo was tried for a serious offense, he had to waive his

right to a jury trial pursuant to R.C. 2945.05 for the trial court to conduct a bench

trial. State v. Taylor, 1st Dist. No C-110062, 2011-Ohio-4648, ¶5. See also Crim.R.

2(C) (defining “serious offense” as including “any felony”). There is, however, no

written jury waiver signed by Diallo in the record. Thus, the trial court erred in the

exercise of its jurisdiction by trying Diallo without a jury. See id.

{¶6} Faced with this plain error, we must reverse the judgment of the trial

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

the law. Because this disposition renders Diallo’s single assignment of error moot,

we decline to address it. See App.R. 12(A)(1)(c); Taylor at ¶6.

Judgment reversed and cause remanded.

S UNDERMANN , P.J., and C UNNINGHAM , J., concur.

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