State v. Mayo , 2017 Ohio 1249 ( 2017 )


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  • [Cite as State v. Mayo, 
    2017-Ohio-1249
    .]
    COURT OF APPEALS
    KNOX COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
    :       Hon. William B. Hoffman, J.
    Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
    :
    -vs-                                          :
    :       Case No. 16CA26
    MICHAEL MAYO                                  :
    :
    Defendant-Appellant       :       OPINION
    CHARACTER OF PROCEEDING:                          Criminal appeal from the Knox County
    Court of Common Pleas, Case No.
    16CR06-100
    JUDGMENT:                                         Reversed and remanded
    DATE OF JUDGMENT ENTRY:                           April 3, 2017
    APPEARANCES:
    For Plaintiff-Appellee                            For Defendant-Appellant
    CHARLES MCCONVILLE                                ERIC C. NEMECEK
    117 East High Street, Suite 234                   1360 East 9th Street, Suite 650
    Mount Vernon, OH 43050                            Cleveland, OH 44114
    [Cite as State v. Mayo, 
    2017-Ohio-1249
    .]
    Gwin, P.J.
    {¶1}    Appellant Michael Mayo appeals his conviction of one count of importuning.
    The State of Ohio is the appellee.
    Facts & Procedural History
    {¶2}    Appellant posted an ad on Craigslist. Detective Bobo of the Knox County
    Sheriff’s Office responded to appellant’s ad. Detective Bobo sent a picture of his fake
    persona to appellant saying, “Hi I’m Hannah,” and giving appellant a cell phone number
    to text. Appellant responded and they texted back and forth. The conversation turned
    sexual. Detective Bobo testified he held himself out to be fifteen years of age and in high
    school. Appellant set up a time and place to meet with “Hannah.” After confirming
    appellant’s identity through pictures, Detective Bobo found appellant had a gray Toyota
    Tundra registered in his name. Detective Bobo stated that appellant arrived at the
    appointed time to meet “Hannah” in the Toyota Tundra by the meeting spot.
    {¶3}    Detective Bobo conducted a traffic stop of appellant’s vehicle near the
    location where appellant and “Hannah” planned to meet.                  Detective Bobo testified
    appellant admitted it was him texting with “Hannah,” but said he was there to meet a girl
    to have dinner. Appellant was arrested. Appellant testified at trial that he thought
    “Hannah” was lying about her age when she said she was fifteen years old because he
    looked at a Facebook page of her and saw she was an older adult female.
    {¶4}    On June 7, 2016, appellant was indicted on one count of importuning in
    violation of R.C. Section 2907.07(D)(2). Appellant was arraigned and pled not guilty to
    the charge on June 10, 2016. On June 13, 2016, the trial court set the matter for a jury
    Knox County, Case No. 16CA26                                                                 3
    trial. Appellant filed a motion to continue the jury trial. The trial court granted appellant’s
    motion to continue and rescheduled the trial for October 25, 2016.
    {¶5}    On October 21, 2016, appellant filed a “waiver of right to jury trial.” The
    waiver was signed by appellant and appellant’s attorney. The waiver stated as follows:
    “Now comes the defendant, Michael A. Mayo, who hereby knowingly, intelligently, and
    voluntarily waives his right to a trial by jury. Defendant requests that this matter proceed
    to a trial to the Court.”
    {¶6}    The trial court conducted a bench trial on October 25, 2016.             At the
    beginning of the trial, the trial court stated, “Let the record show the Defendant, Michael
    Mayo, is present in the courtroom represented by Attorney Jim Giles; the State’s in the
    courtroom in the person of Chip McConville, Knox County Prosecuting Attorney. This
    matter is set for a bench trial, Defendant having waived jury on October 21st.” The trial
    court then asked the parties if they were ready to proceed. After both parties confirmed
    they were ready to proceed, the State made its opening statement.
    {¶7}    Detective Bobo and appellant testified at the bench trial. On October 26,
    2016, the trial court issued a judgment entry finding appellant guilty of one count of
    importuning in violation of R.C. 2907.07(D)(2), ordering a pre-sentence investigation, and
    scheduling a sentencing hearing for December 2, 2016. At the sentencing hearing, the
    trial court sentenced appellant to eleven months in prison and classified him as a Tier I
    sexual offender.
    {¶8}    Appellant appeals his conviction and assigns the following as error:
    {¶9}    “I. THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONDUCT A
    BENCH TRIAL IN THIS CASE.
    Knox County, Case No. 16CA26                                                               4
    {¶10} “II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
    SUSTAIN A CONVICTION IN THIS CASE.
    {¶11} “III. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
    CONSTRUCTIVELY AMEND THE INDICTMENT.
    {¶12} “IV. THE TRIAL COURT ERRED BY REJECTING MAYO’S ENTRAPMENT
    DEFENSE.”
    I.
    {¶13} In his first assignment of error, appellant argues the trial court did not have
    jurisdiction to conduct a bench trial in this case. Specifically, appellant contends the jury
    waiver was not properly executed and failed to substantially comply with R.C. 2945.05
    because it was not made in open court.
    {¶14} R.C. 2945.05 governs the waiver of the right to a jury trial. The Supreme
    Court of Ohio reviewed R.C. 2945.05 in State v. Lomax, 
    114 Ohio St.3d 350
    , 2007-Ohio-
    4277, 
    872 N.E.2d 279
     in which the defendant signed a written jury waiver, but was not
    questioned in open court regarding the waiver. Instead, the trial court stated in open court
    that there would be a waiver of a jury trial. 
    Id.
     The Supreme Court found a valid jury
    waiver must meet five conditions; it must be (1) in writing, (2) signed by the defendant,
    (3) filed, (4) made part of the record, and (5) made in open court. 
    Id.
    {¶15} As to the open court requirement, the Supreme Court held, “to satisfy the
    ‘in open court’ requirement in R.C. 2945.05, there must be some evidence in the record
    that the defendant while in the courtroom and in the presence of counsel, if any,
    acknowledged the jury waiver to the trial court.” 
    Id.
     Absent such evidence, the waiver
    does not comply with the requirements of R.C. 2945.05 and is therefore invalid. Id; State
    Knox County, Case No. 16CA26                                                                5
    v. George, 5th Dist. Licking No. 2010CA00001, 
    2010-Ohio-3375
    ; State v. Teagarden, 5th
    Dist. Licking No. 08-CA-39, 
    2008-Ohio-6986
    .
    {¶16} This case is analogous to the Lomax case where four of the five
    requirements are not at issue. Appellant signed a written waiver, which was filed on
    October 21, 2016, and was made a part of the record. A written waiver is presumptively
    voluntary, knowing, and intelligent. State v. Lomax, 
    114 Ohio St.3d 350
    , 
    2007-Ohio-4277
    ,
    
    872 N.E.2d 279
    . While this Court has previously held nothing in R.C. 2945.05 requires a
    trial court engage in a colloquy with the defendant before accepting his waiver of a jury,
    we have held there must be some evidence in the record that the defendant
    acknowledged, in open court and in the presence of counsel, if represented, that he
    desires to waive his right to a jury trial. State v. Teagarden, 5th Dist. Licking No. 08-CA-
    39, 
    2008-Ohio-6986
    .
    {¶17} Aside from the passing reference to the jury waiver of October 21st, the trial
    court did not address appellant and have him acknowledge in open court and in the
    presence of counsel that he was waiving his right to a jury trial. Because there is no
    indication from the transcript, nor any other evidence in the record, that appellant waived
    his right to a jury trial in open court, the requirements of R.C. 2945.05 were not met in this
    case and the waiver must be deemed invalid. In addition, appellee concedes in its brief
    that this case is analogous to the Lomax case, that the record in this case is devoid of
    any evidence appellant acknowledged the waiver in open court and in the presence of
    counsel, and that the trial court erred in not having appellant acknowledge the previously-
    filed written waiver.
    Knox County, Case No. 16CA26                                                            6
    {¶18} The Ohio Supreme Court and this Court have previously held that the
    proper remedy when a jury waiver is invalid is to remand the case to the trial court for a
    new trial. State v. Pless, 
    74 Ohio St.3d 333
    , 
    1996-Ohio-102
    , 
    658 N.E.2d 766
    ; State v.
    White, 5th Dist. Muskingum No. CT2013-0039, 
    2013-Ohio-5858
    .              Appellant’s first
    assignment of error is sustained.
    II., III., IV.
    {¶19} Based upon our decision in Assignment of Error I which necessitates a new
    trial, we find these assignments of error are moot. State v. White, 5th Dist. Muskingum
    No. CT2013-0039, 
    2013-Ohio-5858
    ; State v. George, 5th Dist. Licking No. 2010CA00001,
    
    2010-Ohio-3375
    .
    Knox County, Case No. 16CA26                                                     7
    {¶20} Accordingly, appellant’s first assignment of error is sustained and the
    second, third, and fourth assignments of error are moot. The judgment of the Knox
    County Court of Common Pleas is reversed and remanded for a new trial.
    By Gwin, P.J.,
    Hoffman, J., and
    Wise, Earle, J., concur
    

Document Info

Docket Number: 16CA26

Citation Numbers: 2017 Ohio 1249

Judges: Gwin

Filed Date: 4/3/2017

Precedential Status: Precedential

Modified Date: 4/4/2017