[Cite as State v. Barnhart , 2023

- Ohio

- 1916.]

Atty. Vito Abruzzino
, Columbiana County Prosecutor and Atty. Steven V. Yaco vone, Assistant Prosecuting Attorney
, 13 5 South Market Street
, Lisbon, Ohio 44432
, for Plaintiff

- Appellee Atty. William Kissinger, 7631 South Avenue, Suit e F, Youngstown, Ohio 44512, for Defendants

- Appellants.

Dated: June 8, 2023 

## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY

STATE OF OHIO
, Plaintiff

- Appellee
,

v.
PEGGY A. BARNHART
, MICHAEL D. BARNHART

Defendant s
- Appellants

.

OPINION AND JUDGMENT ENTRY

Case No. 22 CO 0014

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio

Case No. 2020 CR 387

BEFORE: David A. D’Apolito, Cheryl L. Waite
, Mark A. Hanni, Judges.

JUDGMENT: Reversed, Vacated and Remanded.– 2

–

Case No. 22 CO 0014 D’APOLITO , P. J.
{¶1} Appellants, Peggy A. Barnhart and Michael D. Barnhart
, appeal their convictions by the Columbiana Court of Common Pleas for one coun t each of breaking and entering in violation of R.C. 2911.13, a felony of the fifth degree, following a trial to
the bench. 1 Appellants advance two assignments of error. First, they assert their convictions should be reversed because the waiver of jury trial entry filed by their trial counsel was not signed by Appellants. Second, they contend that the verdicts are against the manifest weight of the evidence. {¶2} Because the trial court did not strictly comply with the statutory waiver requirements, the trial court was without jurisdiction to try Appellants without a jury. Therefore, the judgment of the trial court is reversed, Appellants’ convictions are vacated,
and this matter is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

{¶3} At a status conference on October 8, 2021, Appellants’ trial counsel stated, “Your Honor, at this time, we will withdraw our right to a jury, and we will try that matter to the bench.” (10/ 8/21 Hrg., p. 5.) The trial court responded, “Would you put that in a written motion?” Appellant's trial counsel replied, “I would be happy to.” The trial court responded, “would prefer it that way.” Although Appellants were present, they did not
voice their waiver. {¶4} As a consequence, a pleading captioned, “WAIVER OF RIGHT TO TRIAL BY JURY,” was filed on behalf of Appellants on October 18, 2021. It reads, in pertinent part:

Now comes the Defendants, Peggy A. Barnhart and Michael D. Barnhart, by and thro ugh undersigned counsel, who respectfully waive their right to

1 Appellants were charged under separate case numbers, 2020 CR 387 and 388, and the cases were assigned to different trial judges. On April 29, 2021, the state filed a pleading captioned “State’s Request to Join Multiple Defendants in a Single Indictment” in both cases. A ppellants did not file a response. The trial judge in 2020 CR 388 deferred ruling on the motion to the trial judge assigned to the lower

- numbered case. On May 10, 2021, the trial court in 2020 CR 387 sustained the state’s motion, transferred 2020 CR 388 to her docket, and joined the two cases “as a single indictment.”– 3

–

Case No. 22 CO 0014 trial by jury and consent to trial before the bench in the above captioned
matter.

{¶5} The pleading is elec tronically signed by Appellants’ trial counse l, but does not bear Appellants’ signatures. The pleading indicates that a copy was forwarded to the
state. {¶6} The trial court conducted the bench trial on December 21, 2021. The trial court issued a judgment entry on February 15, 2022 finding both Appellants guilty of the sole count in the single in dictment. {¶7} At the sentencing hearing on March 18, 2022, Appellants' trial counsel challenged the efficacy of the waiver. The trial court continued the sentencing hearing to May 16, 2022 in order to allow the parties to brief the issue. The state asserted the invited error doctrine, that is, Appellants' trial court either intentionally or inadvertently failed to produce a statutorily

- compliant waiver. {¶8} In a judgment entry dated May 17, 2022, the trial court imposed a thirty

- day
term of incarceration in the county jail, followed by four years of probation, for each Appellant. This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT TRIED TH E DEFENDANTS WITHOUT THEIR SIGNA TURES AFFIXED TO THE JURY TRIAL
WAIVER.

{¶9} The Sixth Amendment to the United States Constitution and Section 10, Article I, of the Ohio Constitution provide criminal defendants with the right to a jury trial. Five conditions must be met in order for a waiver of a defendant’s constitutional right to a jury tr ial to be effective:

The 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. See State v. Lomax
, 114 Ohio St.3d 350, 2007

- Ohio

- 4277, 872 N.E.2d 279, ¶ 9.– 4

–

Case No. 22 CO 0014 State v. VanFossen , 7th Dist. Carroll No. 21 CA 0953, 2022

- Ohio

- 4022, 199 N.E.3d 716, ¶ 15.

{¶10} The requirements for waiver of a jury trial in Ohio are addressed by both criminal rule and statute. “In serious offense cases the defendant before commencement
of the tri al may knowingly, intelligently and voluntarily waive in writing his right to trial by jury.” Crim.R. 23(A). More specifically, R.C. 2945.05, captioned “Defendant may waive jury trial,” reads in its entirety:

In all criminal cases pending in courts of re cord in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entit led in the court and cause, and in substance as follows: “I __________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.”

{¶11} The waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. The wai ver may be withdrawn by the defendant at any time before the commencement of the trial. {¶12} The trial court need not engage in a lengthy colloquy with the defendant. For instance, in State v. Sanders , 188 Ohio App.3d 452, 2010

- Ohio

- 3433, 935 N.E.2d 905 (10th D ist.), the trial court stated to the defendant in open court, “it is my understanding that you have waived your right to a jury trial and would like to have the court decide this case,” and the defendant replied, “yes.” The Tenth District concluded
that t he foregoing exchange satisfied the minimum requirements of R.C. 2945.05 and
Lomax

. Id. at ¶ 13. {¶13} Trial courts must strictly comply with the requirements of R.C. 2945.05. State v. Pless (1996), 74 Ohio St.3d 333, 337, 339, 658 N.E.2d 766; State ex rel. Jack son v. Dallman (1994), 70 Ohio St.3d 261, 262, 638 N.E.2d 563. “In the absence of strict– 5

–

Case No. 22 CO 0014 compliance with R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury.” Pless at 337, 74 Ohio St.3d 333, 658 N.E.2d 766. {¶14} Further, pursuant to Pless and the cases reviewed therein, a defendant can neither waive nor invite the error. See Pless , 74 Ohio St.3d 333. We have likewise held that invited error is not a valid argument by the state to circumvent strict compliance with R.C. 2945.05. St

ate v. Croom , 7th Dist. Mahoning No. 12 MA 54, 2013

- Ohio

- 5682, ¶ 126

- 131; State v. Harrison , 7th Dist. Mahoning No. 02CA157, 2004

- Ohio

- 2933, ¶ 41

- 43. {¶15} Prior to the bench trial in this case, there was no signed waiver from Appellants and no acknowledgement i n open court by Appellants regarding the waiver of their constitutional right to a jury trial. Accordingly, we find that the first assignment of
error has merit.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS THE CASE WAS TRIED TO THE BENCH
AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶16} Based on our resolution of the first assignment of error, we find that Appellants’ second assignment of error is moot.

CONCLUSION

{¶17} For the foregoing reasons, the judgment of the trial court is rev ersed, Appellants’ convictions are vacated, and this matter is remanded for further proceedings.

Waite, J., concurs.
Hanni, J., concurs.[Cite as State v. Barnhart , 2023

- Ohio

- 1916.]

For the reasons stated in the Opinion re ndered herein, the first assignment of
error is sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is reversed and Appellants’
convictions are vacated . We hereby remand this matter to the trial court for further
pro ceedings according to law and consistent with this Court’s Opinion. Costs to be taxed against the Appellee. A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry

.