[Cite as State v. Walker , 2021-Ohio-235.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA1102 : v. : : DECISION AND J UDGMENT ERNEST A. WALKER, : ENTRY : Defendant-Appellant. :

_____________________________________________________________ APPEARANCES: Timothy P. Young, Ohio State Public Defender, Katheryn R. Ross- Kinzie, Assistant Public Defender, Columbus, Ohio, for Appellant. David Kelley, Adams County Prosecutor, West Union, Ohio, for Ap pellee.

_____________________________________________________________ Smith, P.J. {¶1} Ernest A. Walker appeals the judgment entry of the Adams County Court, entered September 19, 2019. Subsequent to a benc h trial, Walker was convicted of misdemeanor traffic charges. On appeal , Walker asserts three assignment of errors: (1) that the trial court unconstitutionally shifted the State’s burden of proof; (2) that Walker’s convicti ons are against the manifest weight of the evidence; and (3) that the trial cou rt abused its discretion when it denied Walker’s request for a jury trial. U pon review of the record, we find merit to Appellant’s third assignment of er ror. Thus, weAdams App. No. 19CA1102 2 reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND {¶2} After law enforcement officers confronted Ernest A. Walker , “Appellant,” outside the United Dairy Farmers in West Union on June 28, 2019, Appellant was cited for operating a vehicle under the inf luence of alcohol or a drug of abuse, R.C. 4511.19(A)(1)(A); OVI refusal, R.C. 4511.19(A)(2); failure to control a motor vehicle, R.C. 4511.20 2; and failure to stop after an accident, R.C. 4549.03. Appellant was arraign ed at the Adams County Court on July 1, 2019. He was brought with other inmates from the Adams County Jail. 1 {¶3} Appellant did not have the benefit of legal counsel with h im at the arraignment. The arraignment transcript reflects that the trial court inquired as to whether Appellant was able to hear the “general statement” as to the “arraignment consequences,” and Appellant replied, “Yes. ” Appellant pled not guilty to all four offenses. After entering his plea, the trial court informed, “We will set the matter for a pretrial and a trial.” {¶4} Appellant informed the court he could not afford an attorn ey so the court advised that it would appoint legal counsel. The mat ter was also

1 Appellant was held in the jail pending arraignment due to a pr ior outstanding warrant for failing to appear in that court.Adams App. No. 19CA1102 3 scheduled for a trial on July 22, 2019. A “Notice of Trial Pre trial, Etc.” dated July 2, 2019 contains Appellant’s signature. This notice indicates “court trial.” {¶5} On July 8, 2019, Appellant’s counsel filed a notice of representation, request for discovery, and bill of particulars. A transcript of that same date, entitled “Transcript of Final Pretrial,” indica tes that Appellant’s counsel appeared in court on that date but Appellan t did not. However, Appellant was still lodged in the jail. The only sign ificance of this brief transcript is that it indicates that Appellant would be b rought over from the jail. The transcript does not contain any discussion with Appellant or any indication that Appellant was in fact brought into the cour troom. {¶6} The record also contains a transcript of “court trial” he ld July 22, 2019. The transcript reflects that another attorney was substi tuting for Appellant’s appointed counsel, who was not feeling well that da y. The transcript is actually unclear as to whether the trial court or the assistant prosecutor stated as follows: At the. [sic] Discovery was complete and we were actually going to do a Court Trial today before Ms. Drinnon came up ill. So, this would be whether we want to continue the Court trial for another time. {¶7} At this point, Appellant’s substitute attorney indicated t hatAdams App. No. 19CA1102 4 Appellant had some concerns about his charges, i.e. whether he was being charged with a second or third offense OVI. Everyone agr eed that Appellant needed to talk to his own attorney, the one fami liar with his case. The trial court stated a six-week continuance w ould be appropriate. On July 22, 2019, a journal entry indicates Appel lant’s case was reassigned for court trial on September 6, 2019. {¶8} On September 6, 2019, the proceedings began with another discussion about the level of Appellant’s OVI offense. However, Appellant’s c ourt-appointed counsel advised the court Appellant had another concern. The trial transcript contains t he following discussion of Appellant’s request for a jury trial. Appellant: We will leave it to a jury trial. Atty. Drinnon: Is the fact that my client has stated he believe s he’s not going to receive a fair trial. Appellant: Yeah. Court: I think he’s under a little bit of a misconception because he keeps saying move it to a jury trial, so it goes upstairs. I keep telling him that that [sic.] doesn’t mean it goes upstairs. I would still be down here, but at this point and time I don’t knowAdams App. No. 19CA1102 5

what the court would want or wish. I do have to do I think, um, you know, ethically.
*** Prosecutor: I would oppose that just to because it’s within the seven days. Court: Um it’s absolutely in the seven days. And if there were, if you had wanted a jury trial that was part of the arraignment when I went through the arraignment actually with you probably twice I talked to you about that. Appellant: Yeah, you see my lawyer the 28 th of last month so, how am I going to get anything done within seven days? Court: So, we, uh, you were here for an arraignment and at the arraignment I alwa ys discuss very clearly about how the demand for jury trial is done. That time has come and gone if we’re otherwise ready for trial. We’ve got our witnesses here were going to go [inaudible]. Appellant: Well let’s do it then.Adams App. No. 19CA1102 6

*** Court: On behalf of your client who brought those things up both in regard to the question about the second OVI charge and also in regard to a jury trial which would be overruled. We are going to go forward with trial today. {¶9} Appellant was found guilty of all charges. The trial cour t ordered a pre-sentence investigation and report. The matter wa s deferred for sentencing on September 19, 2019. {¶10} At sentencing, the trial court merged the two OVI convict ions. The trial court sentenced Appellant on the second offense OVI c harge to 180 days in the Adams County Jail, 150 days suspended, a $525 fine and court costs. The court further ordered two years probation and one-y ear license suspension. As part of probation, Appellant was to obtain a dr ug and alcohol assessment. Appellant was also ordered to pay fines an d costs on the failure to control and failure to stop after an accident ch arges. {¶11} This timely appeal followed. Appellant’s sentence was st ayed pending appeal. Where pertinent, additional facts are set fort h below.Adams App. No. 19CA1102 7

ASSIGNMENTS OF ERROR
“I. THE TRIAL COUR T UNCONSTITUTIONALLY SHIFTED THE STATE’S BURDEN TO PROVE ALL ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT TO THE DEFENDANT, ERNEST WALKER, IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND THE OHIO CONSTITUTIONS.
II. THE TRIAL COURT VIOLATED ERNEST WALKER’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED ERNEST WALKER’S REQUEST FOR A JURY TRIAL.” {¶12} For ease of analysis, we begin with Appellant’s third assignment of error.

STANDARD OF REVIEW {¶13} As a general rule, the United States Supreme Court has always set high standards of proof for the waiver of constituti onal rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.1461 (1938), (“Trial courts must indulge every reasonable presumptio n against waiver.”); State v. Tackett, 4th Dist. Jackson No. 04CA12, 2005-Ohio-1437, at ¶ 19. Because of the fundamental importance of the right to a jury trial, the trial court must not lightly inf er a waiver ofAdams App. No. 19CA1102 8 the right to a jury trial. Id. See State v. Scott, 123 Ohio App.3d 331, 704 N.E.2d 265, (2d. Dist. 1997), citing Tallmadge v. DeGraft-Biney, 39 Ohio St.3d 300, 301-302, 530 N.E.2d 1310 (1988).

LEGAL ANALYSIS {¶14} An accused charged with a first-degree misdemeanor is ent itled to a trial by jury. See R.C. 2945.17; Section 10, Article I, Ohio Constitution.

See also State v. Wilson , 4th Dist. Adams No. 19CA1084, 2019-Ohio-2965, at ¶ 10. However, in misdemeanor cases, the state does not vio late a defendant's constitutional rights when it conditions the right upon the filing of a written demand for a jury trial. See Tackett, supra, at ¶ 19, citing, Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343 (1967), at paragraph one of the syllabus. Crim.R. 23 governs the procedure for obta ining or waiving a trial by jury. See Tackett, supra, at ¶ 20. Crim.R. 23 provides, in relevant part: In petty offense cases, where there is a right of jury trial, t he defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial , or on or before the third day following receipt of notice of the d ate set for trial, whichever is later. Failure to demand a jury tr ial as provided in this subdivision is a complete waiver of the right thereto. {¶15} “The purpose behind Crim.R. 23(A) is to ensure that crimi nal defendants do not wait until they have reached the courthouse s teps on theAdams App. No. 19CA1102 9 day of trial to demand a jury. This would result in undue dela y and expense and possibly prejudice the state.” Tackett, supra, at ¶ 21, quoting St ate v. Burton, 39 Ohio App.3d 151, 151, 530 N.E.2d 955 (6th Dist. 1988). However, “[w]here a request for jury trial is made sufficiently in advance of the actual trial as not to interfere with the orderly administr ation of the business of the court and will not result in any unnecessary de lay or inconvenience to witnesses or prejudice to the state, it may we ll be an abuse of discretion for the trial court to deny a jury trial.” Tackett, supra, quoting State v. Edwards, 4 Ohio App.2d 261, 266, 208 N.E.2d 758 (4th Dist. 1965), (internal citations omitted.). {¶16} We begin our analysis by reiterating that Appellant was unrepresented at arraignment. He was brought from the jail wit h other inmates. It appears that the July 8th pretrial was conducted w ithout his presence, but the record also indicates he was allowed to s ign a recognizance bond on that date. Appellant presented to the cou rt on July 22nd, but another attorney substituted for his counsel. Appellant’s chief concern appeared to be his confusion regardin g the level of his OVI offense. The matter was rescheduled for court trial on September 6th.Adams App. No. 19CA1102 10 {¶17} In his brief, Appellant summarizes these facts, arguing that they culminated in his failure to timely make a written demand for j ury trial due to a lack of access to his appointed counsel. The State of Ohi o’s brief does not address these pretrial facts but focuses solely on Appellan t’s untimely verbal request for a jury trial on the morning of his September 6th trial. Appellant emphasizes that September 6th was the first time that he and his court-appointed counsel ever appeared in court together. {¶18} The record reveals that the second pleading in the court ’s record appears to be a court entry describing the arraignment p rocess, Appellant’s not guilty plea, his updated address, the terms of bond, the name of his appointed counsel, and upcoming dates. This entry also contains this language: “Defendant having been fully informed of his rights pursuant to Criminal Rule 5....” Pursuant to Crim.R. 5(A)(5), a court must i nform an accused of his right to a jury trial during the accused’s initi al court appearance. It is mandatory that the court comply with this ru le. See Wilson, supra, at ¶ 10; (internal citations omitted.) Crim.R. 5(A) applies t o criminal charges. For traffic offenses, the corresponding Traf fic Rules apply. Traf.R. 8, “Arraignment,” contains elements from Crim.R . 5 as well.

See State v. Donkers, 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d 903, at ¶ 30 (11th Dist.). See also 1975 Staff Note 1 and 5 to Traf.R. 8.Adams App. No. 19CA1102 11 Similar to the Criminal Rules, the Traffic Rules also require a n explanation of rights at the arraignment stage. Traf. R 8(D). “Specifical ly, before calling the defendant to plea, the judge shall cause him to be informed and shall determine that defendant knows and understands...that he ha s, where such right exists, a right to jury trial which must be demanded in petty offenses.” Id

. Donkers, supra , at ¶ 31. {¶19} This court most recently considered a defendant’s claim t hat he was unfairly denied a jury trial in a criminal case in State v. Wilson, supra. After a bench trial, Wilson was convicted of violation of a pro tection order, a violation of R.C. 2919.27 and a misdemeanor of the first degr ee. On appeal, Wilson argued that the trial court erred when it did no t inform him that he had a right to a jury trial and was required to make an affirmative demand for a jury if he wanted to exercise that right. {¶20} In our decision, we recognized that the right to a trial by jury is one of the most important rights guaranteed in the United State s Constitution. Our review of the transcript of Wilson’s arraign ment demonstrated that the trial court did not comply with the Crim. 5(A) requirements. Our research led us to an 11th District case, State v. Bates, 11th Dist. Ashtabula No. 2005-A-0078, 2006-Ohio-3777, which held und er somewhat similar circumstances:Adams App. No. 19CA1102 12 Pursuant to Crim.R. 5(A)(5) the trial court must inform a defendant of his or her right to a jury trial during the initia l appearance. State v. Stewart 5th Dist. Coshocton No. 01CA002, 2001 WL 1744692, (Nov. 28, 2001), at *2. This court stated that a trial court's failure to inform an accused of his or her rights as required by Crim.R. 5 constitutes prejudic ial error. State v. Fonseca, 124 Ohio App.3d 231, 234, 705 N.E.2d 1278, (11th Dist. 1997), citing State v. Orr , 26 Ohio App.3d 24, 25, 498 N.E.2d 181 (11th Dist. 1985). A trial court's failure to comply with the provisions of Crim.R. 5 invalidates the entire proceeding. Mentor v. Carter, 11th Dist. Lake No. 93-L-104, 1994 WL 102394, at 2, citing Cleveland v. Whipkey, 29 Ohio App.2d 79, 278 N.E.2d 374 (8th Dist. 1972); State v. Boerst, 45 Ohio App.2d 240, 241, 343 N.E.2d 141 (9th Dist. 1973). Bates, supra, at ¶ 22. In Bates, a review of the arraignment transcript revealed that the trial court failed to inform Bates, unreprese nted at the time, of her right to be tried by a jury, thus failing to comply with Crim.R. 5(A).

In Wilson, the State conceded that Wilson was not properly advised at the initial appearance regarding his right to a jury trial but argu ed that because Wilson was later represented, he should be deemed to have waive d the issue. We disagreed with the State, concluding: We readily acknowledge the arguable merit in the appellee's argument that appellant did, in fact, have the benefit of legal representation during the trial court proceedings after his ini tial appearance and that one could assume that his counsel must have advised appellant of his constitutional right to a trial b y jury. However, while this could arguably be a valid assumption in most instances, the right to a trial by jury is one of the m ost important rights guaranteed in the United States Constitution. Thus, absent actual compliance with Crim.R. 5, or absent some later curative action undertaken by the trial court to affirmatively advise the appellant of his right to a trial by j ury,Adams App. No. 19CA1102 13 we are reluctant to simply assume that, sometime during the course of the trial court proceeding, appellant must have been made aware of this important constitutional right. Thus, based upon the facts present in the case sub judice, we are reluctant to conclude that appellant waived this particular constitutional guarantee. Id . at ¶ 14. {¶21} In another case from this district, State v. Tackett, supra, Tackett was convicted of “domestic violence by menacing,” a vio lation of R.C. 2919.25(C). Tackett appealed, asserting as one of his ass ignments of error, that he did not waive his right to a jury trial. The re cord revealed at Tackett’s arraignment, the court played a videotape that briefl y outlined a criminal defendant’s legal rights. The videotape explained the right to have a matter tried by a jury and the time requirements for a writte n demand. The tape concluded by suggesting if a defendant had questions conce rning the nature of the charges or the rights at the hearing, the defenda nt should ask questions when he or she is seated at the counsel table. {¶22} When Tackett was called, the court inquired as to whethe r Tackett understood his rights as outlined in the video. Tacket t indicated he did. The court then informed Tackett of the range of punishmen t. Tackett pled not guilty and requested a court-appointed attorney. Afte r some discussion, the court informed Tackett he did not qualify for acourtappointed defender.Adams App. No. 19CA1102 14 {¶23} The court next explained that Tackett’s trial would occu r within 45 days if he did not waive speedy trial. Tackett asked, “Can it be a jury trial?” The court responded that there was a procedure to be f ollowed, that the procedure was explained on the video, and that Tackett had already affirmed he understood his rights. Tackett replied: “But it d idn’t say how you go about getting a Jury,” to which the court replied, “Oh, yes, it did Sir.” Tackett subsequently proceeded to a bench trial and was convict ed. {¶24} Upon review, this Court found that it was not disputed t hat Tackett did not file a written request for jury trial. However , the record also indicated Tackett did not fully understand this right and the a ction required to preserve it. The videotape specifically invited defendants to ask questions, and Tackett’s later question about a jury trial reve aled that he was uncertain about how to obtain one. We observed that the trial court chose to sidestep Tackett’s questions rather than directly answer them. We commented that the court appeared to take Tackett’s understandi ng of the videotape to mean that he memorized it. {¶25} We found that the court’s actions did not further the pur pose of Crim.R. 23(A). We further found: Because the right to a jury trial is a constitutional right and Civ.R. 23(A) is a procedural rule, because the trial court ignored the indicators that Tackett did not fully understand hi s rights and the steps needed to preserve them, and because theAdams App. No. 19CA1102 15 trial court did not afford Tackett any latitude with respect to the formal requirements for preserving his rights, we find that the trial court abused its discretion in denying Tackett's request for a jury trial. Id . at ¶ 26. {¶26} In Donkers, supra, the defendant was convicted of various criminal and traffic charges. Initially, she was arraigned in two municipal courts. On appeal, Donkers asserted that the trial courts erre d by failing to follow the required procedure upon her initial appearances by n ot fully advising her of the charges against her and of her rights. At Donkers’ arraignments, the state played videos which contained recitatio ns of her constitutional rights. {¶27} At the outset, the 11th district court acknowledged problems because they did not have a video or a transcript of its conten ts within the record on appeal. The state countered that providing a record of the arraignment was Donkers’ burden on appeal. The appellate court , quoting

State v. Boerst , 45 Ohio App.2d 240, 241-242, 343 N.E.2d 141 (9th Dist. 1973), noted: “ ‘* * * Here, the defendant requested and filed the transcript s, and the reviewing court can determine from such transcripts whether or not an error was committed. We must assume that those transcripts, as certified by the clerk and the trial judg e, respectively, are complete and accurate.’ ”

Id. at ¶ 39. The Donkers court further observed:Adams App. No. 19CA1102 16 In the case before us, appellant ordered the entire transcriptof the proceedings in her case from the dates of the initial appearances. The court reporter certified the submitted transcripts as true and correct. The transcripts of the initia l appearances make no reference to a video and do not allude to any previous explanation of rights. If the state insists that there is more content that the court reporter failed to include and t hat is crucial to their position, the state could have used App.R. 9(E) to correct the record and to submit the video along with a certification that it was played at appellant's initial appeara nce so that we could judge its contents.

Id . at ¶ 40. {¶28} The Donkers court found: [E]ven if a complying video was played on both dates and if appellant can be confirmed as being present and if the importance of watching it was explained in her presence, a video or other en masse description of rights is merely that―a description of the rights. It does not satisfy the requirement that directs the court to determine that the defendant “understands” the rights listed in Crim.R. 10(C) or “understands and knows” the rights listed in Traf.R. 8(D). These provisions require an individualized inquiry. (Emphasis sic.)

Id . at ¶ 42. {¶29} In Appellant’s case, the arraignment hearing transcript reveals that when Mr. Walker’s case was called, the trial court inquired about his name and address and inquired as to whether he receiv ed a copy of the traffic ticket. The only possible reference to an explanat ion of Appellant’s constitutional rights pursuant to Traf. R. 8(D) is as follows:Adams App. No. 19CA1102 17 Court: And were you able to hear my general statement that I made to everybody in regard to. [sic] Appellant: Yeah, I heard you. Court: The arraignment consequences? Appellant: Yes. {¶30} The trial court did not ask Appellant if he had any questions about the “general statement.” It is at this point t hat the trial court began to read through the nature of the four charges; explained the potential penalties; took Walker’s not guilty plea; discussed Walker’s re quest for a court-appointed attorney; and discussed the terms of his bond. At the end of all of this discussion, the trial court asked, “Mr. Walker do y ou have any questions about what has happened here”? {¶31} While the record does not indicate Appellant herein was a firsttime visitor to the Adams County Court, we cannot conclude, bas ed on these facts, that Appellant was properly advised as to his right to a jury trial and how to make a timely demand pursuant to Crim.R. 23. We assume that the “general statement of arraignment consequences” was the trial c ourt’s explanation of Appellant’s constitutional rights but we cannot confirm that. The arraignment transcript simply does not provide this informa tion. “While the defendant does have the burden of seeing that the record is complete,Adams App. No. 19CA1102 18 under the appellate rules, he can do no more than request the c lerk to prepare and forward the transcript of docket and journal entries, and t he transcript of proceedings.” Boerst, supra, at 242. While a full explanation of the constitutional rights pursuant to Crim.R. 5(A) may well have oc curred, the arraignment transcript does not contain this discussion. {¶32} Based on our review of the record, we find Appellant was not fully apprised of his right to a jury trial and of the requirem ents, pursuant to Crim.R. 23(A), to timely demand one in writing. We acknowledge the record does contain a “Notice of Trial, Pretrial, Etc.,” dated July 2nd, with Appellant’s signature, and several documents indicate Appellant ’s being scheduled for a “court trial.” However, we cannot simply assum e Appellant understood “court trial” to mean “trial to the bench” or “trial to the judge.” {¶33} Further, as in Wilson, we cannot simply assume because Appellant was later appointed a lawyer that he must have been f ully informed of this important constitutional right, particularly i n light of the lack of access to his lawyer which he claims and the record sup ports. Assuming Appellant was properly apprised pursuant to Crim.R. 5( A), it does not appear the trial court inquired as to whether Appellant had any questions about his constitutional right to trial. Under the circumstanc es ofAdams App. No. 19CA1102 19 Appellant’s case, we find the trial court abused its discretion in denying Appellant’s request. We sustain the third assignment of error. 2 {¶34} In light of our disposition of Appellant’s third assignment of error, Appellant’s first and second assignments o f error are rendered moot. Accordingly, the judgment of the Adams County C ourt is reversed and the matter is remanded for further proceedings con sistent with this opinion.

JUDGMENT REVERSED.

2 We recognize that many courts in the 4 th District utilize general statements and/or videos to inform multiple defendants of their constitutional rights at arraignme nt. Our decision here does not find that practice to be improper. In fac t, this decision could very pos sibly have been resolved in favor of Appellee had we been supplied with a record of the trial court’s “genera l statement” of Defendant/Appellant’s rights at arraignment.Adams App. No. 19CA1102 20

JUDGMENT ENTRY It is ordered that the JUDGMENT BE REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Adams County Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period n ot to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme C ourt of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the ear lier of the expiration of the sixty-day period, or the failure of the Appel lant to file a notice of appeal with the Supreme Court of Ohio in the forty-fi ve day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dism isses the appeal prior to expiration of sixty days, the stay will termina te as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Hess, J. concur in Judgment and Opinion. For the Court,

_______________________________ Jason P. Smith Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time perio d for further appeal commences from the date of filing with the clerk.