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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 21, 2017

v No. 329387 Wayne Circuit Court VICTOR ALEJANDRO TORRES-RIVERA, LC No. 14-009472-01-FC

Defendant-Appellant.

Before: G LEICHER , P.J., and M URRAY and F ORT H OOD , JJ.

P ER C URIAM

.

Defendant appeals as of right his convictions, following a ben ch trial, of three counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a ) (person under 13 years of age), three counts of third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a) (person under 13 years of age), and one count of second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (pe rson under 13 years of age). 1 We affirm.

Defendant’s sole claim on appeal is that he did not “understan dingly[,]” voluntarily and intelligently waive his right to a jury trial. This issue has not been preserved for appeal where a
review of the record confirms th at defendant did not object to proceeding to trial without a jury and he did not challenge the trial court’s acceptance of his ju ry waiver. People v Metamora Water Serv, Inc

, 276 Mich App 376, 382; 741 NW2d 61 (2007). Likewise, the trial court did not
consider this issue. Id . We review unpreserved consti tutional issues for plain error affecting the defendant’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

The Michigan Supreme Court has recognized that the right to a jury trial in a criminal felony prosecution is “fundamental[,]” and is protected by both the federal and state
constitutions. People v Allen , 466 Mich 86, 90; 643 NW2d 227 (2002), citing Duncan v

Louisiana , 391 US 145, 149; 88 S Ct 1444; 20 L Ed 2d 491 (1968); US Cons t Am VI; Const 1963; art 1, § 20. A criminal defendant may waive the constitu tional right to a trial by jury if the

1 Defendant was sentenced to concurrent terms of 25 to 50 years’ imprisonment for the CSC I convictions, and 5 to 15 years’ imp risonment for the remaining CSC II and CSC III convictions.-2- prosecutor consents and the tria l court approves. MCL 763.3(1) . The waiver must be made in open court and after the defendant has had the opportunity to c onsult with counsel. MCL 763.3(2). A defendant cannot waive his right to a jury until h e “has been arraigned and has had opportunity to consult with legal counsel.” MCL 763.3(2). The governing court rule, MCR 6.402(B) provides, in pertinen t part, as follows:

Waiver and Record Requirements. Before accepting a waiver, the court must advise the defendant in open c ourt of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personal ly, that the defendant understands the right an d that the defendant voluntar ily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.

There is a presumption that the waiver is knowing, voluntary, a nd intelligent if the record confirms that the trial court complied with the court rule. People v Mosly , 259 Mich App 90, 96; 672 NW2d 897 (2003).

In the instant case, defendant waived his right to a jury tria l after he was arraigned. Defendant also, under oath, acknowl edged on the record before t he trial court that he had consulted with his attorney before effectuating the waiver. De fendant’s attorney acknowledged, by signing the written waiver form , part of the lo wer court rec ord, that she had advised defendant of his constitutional right to a trial by jury. The trial cour t also specifically advised defendant that he had a constitutional right to a trial by jury and that by waiving that right, the trial court alone, acting as the trier of fact , would decide his guilt or i nnocence. Defendant stated that he understood his right to a trial by jury and that he was volunta rily giving up that right, which he confirmed by signing the written waiver. The trial court also took the time to confirm that
defendant did not make his waiver under duress or because of an y promise made to him. As the prosecution observes in its brief on appeal, this Court conclud ed that a similar factual record supported a valid waiver in People v Shields

, 200 Mich App 554, 560-561; 504 NW2d 711 (1993).

Relying on United States v Martin , 704 F2d 267 (CA 6, 1983), defendant contends that he should have been provided additional advice about the right to a jury trial in order to make an intelligent waiver. In Martin , 704 F2d at 274-275, the United States Court of Appeals for th e Sixth Circuit held, in per tinent part, as follows:

Moreover, a defendant ignorant of the nature of the jury trial right cannot intelligently weigh the value of the safeguard. A defendant, t herefore, should have both the mental ability and some knowledge of the jury tri al right before he is allowed to waive it. A technical knowledge of the jury tria l right, however, is not what is required. A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the select ion of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocenc e should he waive his jury trial right. See United States v Delgado , 635 F2d 889, 890 (CA 7, 1981). Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing a nd intelligent decision.-3- * * *

At a minimum, a defendant should be informed that a jury is co mposed of 12 members of the community, he may participate in the selectio n of jurors, the verdict of the jury must be unanimous, and that a judge alone w ill decide guilt or innocence should he waive his jury trial right. See [ Delgado , 635 F2d at 890]. [Citations omitted.]

The Martin Court also held that “[t]here is no constitutional requirement that a court conduct an on the record colloquy with the defendant prior to t he jury trial waiver.” Martin , 704
F2d at 274. In Delgado , 635 F2d at 890, 2 the case on which the Martin Court primarily relied, the United States Court of Appeals for the Seventh Circuit stat ed that federal district courts in that circuit were required to e xplain the following to a defend ant:

We take this opportunity to advise the trial courts that they s hould explain that a jury is composed of twelve members of the community, that the d efendant may participate in the selection of j urors, and that the verdict of the jury is unanimous. The court should inform the defendant that if he waives a jury, the judge alone will decide guilt or innocence. After informing the defendant of these factors, the
trial court should then ascertain whether the defendant wishes to waive his right to a jury trial. Only after this t ype of inquiry will the court b e able to determine that
the defendant understands his ri ght to a jury trial and the con sequences of waiver.

However, the United States Court of Appeals for the Sixth Circ uit has held that the advice required under Delgado is not a requirement of the constitution. United States v

Sammons , 918 F2d 592, 597 (CA 6, 1990). Likewise, “a defendant may ma ke a knowing, intelligent waiver of the right to trial by jury without receiv ing the admonitions in the Delgado warning.” United States v Rodriguez , 888 F2d 519, 528 (CA 7, 1989) (citation omitted). Moreover, in Shields , 200 Mich App at 560-561, this C ourt held that “the trial cour t properly ascertained that [the] defendant understood his right to have a jury trial and that he voluntarily waived that right[,]” even where the trial court did not give t he defendant any further specific information concerning the nature of his right to a jury trial. Further, this Court has expressly rejected the argument that a wai ver of the right to a jury tria l is not valid unless the trial court specifically advises the defendant that a jury’s verdict must b e unanimous, and that in a bench trial a defendant’s guilt or innocence is determined by a singl e person. People v James (After Remand) , 192 Mich App 568, 570-571; 481 NW2d 715 (1992). Our research also did not yield any Michigan authority requiring a trial court to inform a defe ndant about the right to a jury trial
as set forth in Delgado

.

2 In United States v Rodriguez , 888 F2d 519, 527-528 (CA 7, 1989), the United States Court of Appeals for the Seventh Circuit, considering Delgado , noted that pursuant to federal statute and court rule, the federal courts are required to “disregard error s that do not affect the substantial rights of the parties.” The Rodriguez Court also observed that prior precedent in that circuit precluded courts from exercising their supervisor y right to “re verse judgments without inquiring
whether the error affect ed substantial rights.” Id . at 528.-4- While the trial court did not s pecifically inform defendant of the exact nature of the right to a trial by jury, the trial court did make sure to inform def endant twice that the trial court alone would determine his guilt or innocence and would act as the tri er of fact. The trial court took great care to ensure that defenda nt understood his right to tri al by jury, and th at he voluntarily waived that right and agreed to be tried by the court. Put sim ply, the trial court’s conduct complied with MCR 6.402. Defendant also entered the waiver aft er stating that he had discussed his choice with his legal counsel. The record simply does not contain evidence to counteract the presumption that defendant’s waiver of his right to a trial by jury was anything but knowing, voluntary and intelligent where the trial court complied with t he court rule. Mosly , 259 Mich App at 96. In Brady v United States , 397 US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747 (1970), the United States Supreme Court stated that “[w]aivers of constitut ional rights not only must be voluntary but must be knowing, intelligent acts done with suffi cient awareness of the relevant circumstances and likely consequences.” (Footnote and citation s omitted.) After a close review of the record, we are satisfied that defendant’s action in waiv ing his constitutional right to a jury trial was made with the awareness required by Brady . Therefore, defendant has failed to demonstrate any error with regard to his choice to proceed with a bench trial.

Affirmed.

/s/ Elizabeth L. Gleicher /s/ Christopher M. Murray
/s/ Karen M. Fort Hood