IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2024 Term

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No. 22-771

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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

JUSTICE BUNN delivered the Opinion of the Court.

Jeremy B. Cooper, Esq. 

Blackwater Law PLLC 

Aspinwall, Pennsylvania 

Attorney for the Petitioner 

Patrick Morrisey, Esq. 

Attorney General 

Andrea Nease Proper, Esq. 

Deputy Attorney General 

Charleston, West Virginia 

Attorney for the Respondent 

FILED

June 7, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

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 

W. Va. 660, 487 S.E.2d 318 (1997).
1

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.
2

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 
3

“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, 
4

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)). 
5

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 
6

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, 
7

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)); 5see 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)).
8

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 
9

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, 
10

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.
11

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 
12

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.