State v. Smalls

2017 Ohio 8763

• Court: Ohio Court of Appeals
• Decided: December 1, 2017
• Docket: 27387
• Status: Published

Opinion

[Cite as State v. Smalls, 2017-Ohio-8763.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27387 : v. : T.C. NO. 2015-CRB-866W : SHONTA SMALLS : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 1st day of December, 2017.

RAYMOND DUNDES, Atty. Reg. No. 0041515, Montgomery County Prosecutor’s Office, 7 S. Mechanic Street, Lebanon, Ohio 45036 Attorney for Plaintiff-Appellee

DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 200 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} Shonta Smalls was originally charged by complaint with one count of Theft, -2-

a first degree misdemeanor, in violation of R.C. 2913.02(A)(1). The case proceeded to a

bench trial on April 19, 2016. After the trial, on July 18, 2016, the trial court filed a Decision

and Entry finding Smalls guilty. The trial court then sentenced Smalls to 180 days, 150

suspended. Smalls was ordered to pay a fine of $500.00, which was also suspended, and

court costs of $210.00. Smalls filed a Motion for Stay of Execution of Sentence that was

granted and later a Notice of Appeal.

{¶ 2} Appointed counsel for Smalls filed an Anders brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), stating he can find no

meritorious issues for appellate review. We notified Smalls of her appellate counsel’s

representation and afforded her sufficient time to file a pro se brief. None has been

received. This matter is now before us for our independent review of the record. Penson

v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

{¶ 3} Smalls’ appellate counsel has identified one possible issue for appeal as

follows: “The defendant was deprived of her right to a jury trial that is guaranteed in the

Sixth and Fourteenth Amendments to the U.S. Constitution and section 5 & 10, Article 1

of the Ohio Constitution when she did not knowingly, intelligently, and voluntarily waive

said right.”

{¶ 4} “In misdemeanor cases, a criminal defendant does not have an absolute right

to a jury trial. . . . Rather, a defendant charged with a misdemeanor waives the right to a

jury trial unless he makes a timely written demand in accordance with Crim.R. 23(A).”

State v. Matthews, 2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 11. Under

Crim.R. 23(A), “[i]n petty offense cases, where there is a right of jury trial, the defendant

shall be tried by the court unless he demands a jury trial. Such demand must be in writing -3-

and filed with the clerk of court not less than ten days prior to the date set for trial . . . .”

Crim.R. 23(A) further states a failure to demand a jury trial is a complete waiver of the

right.

{¶ 5} A review of the record reveals that Smalls did not request a jury trial via the

required written demand in accordance with Crim.R. 23(A). The record indicates there

was a Notice to Appear for Trial filed on March, 25, 2016 and the trial was set for April 19,

2016. If Smalls desired a jury trial she had ample time to comply with Crim.R. 23(A) and

provide a written demand ten days prior to April 19, 2016.

{¶ 6} In addition to reviewing the possible issue for appeal raised by Smalls’

appellate counsel, we have conducted an independent review of the trial court’s

proceedings and have found no error having arguable merit. Accordingly, Smalls’ appeal

is without merit and the judgment of the trial court is affirmed and no new appellate

counsel will be appointed.

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Raymond Dundes Daniel Brinkman Shonta Smalls Hon. Adele M. Riley