State v. Ward , 2019 Ohio 4148 ( 2019 )

[Cite as State v. Ward, 2019-Ohio-4148.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-180350
C-180387
Plaintiff-Appellee, : C-180388
TRIAL NOS. C-17CRB-32545
vs. : C-18TRD-1685
C-18TRD-11877B
STEVEN WARD, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: October 9, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan and
Scott M. Heenan, Assistant Prosecuting Attorneys, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Steven Ward appeals his convictions, following a bench trial, for failing
to comply with an order or signal of a police officer and driving under a Financial
Responsibility Act (“FRA”) suspension. Ward also appeals his conviction, following a
guilty plea, for driving under a 12-point suspension.
{¶2} Ward raises several issues on appeal—including challenges to the trial
court’s proceeding with a bench trial, defense counsel’s failure to file a timely jury
demand, the weight of the evidence, and the trial court’s acceptance of his guilty plea.
Finding no merit to any of these arguments, we affirm.
Pretrial and Trial Proceedings
{¶3} When Ward was arraigned on the failure-to-comply and FRA-
suspension offenses, he entered not guilty pleas and the matter was scheduled for a
bench trial. Counsel filed a form designating himself as trial counsel. When Ward
later failed to appear for trial, a capias was issued and counsel was permitted to
withdraw.
{¶4} Later, Ward appeared with new counsel at a pretrial conference, and
counsel requested that “all three groups of cases” be scheduled for a bench trial. On
the date set for trial, the court informed Ward that counsel had contacted the court
to report that he was unable to attend. The court asked Ward if he agreed with
counsel’s request that the matter be scheduled for a pretrial conference two days
later, and Ward replied affirmatively.
{¶5} At the next pretrial conference, counsel asked that the matter be
referred for a new trial date. The matter was again scheduled for a bench trial.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} On the morning of trial, counsel requested a continuance, stating that
Ward had informed him that “he wants a jury trial.” Counsel acknowledged that no
jury demand had been filed. After the court denied the requested continuance,
counsel moved to withdraw, arguing that since his client wanted a jury trial, he
would be giving ineffective assistance if he proceeded to trial. The court denied the
motion, and the matter proceeded to a bench trial.
{¶7} At trial, Amberley Village Police Sergeant Brandon Gehring testified
that on November 25, 2017, at about 8:00 p.m., he was stopped at the intersection of
East Galbraith and Ridge Roads when he noticed a maroon Dodge truck travelling
northbound on Ridge Road. Gehring recognized the truck because Ward had been
driving it on September 8, 2017, when Gehring had cited him for driving under
suspension and for speeding.
{¶8} Gehring turned onto Ridge Road and got directly behind the truck as it
was about to turn onto westbound Ronald Reagan Highway. A check of the truck’s
registration revealed that the truck was not in Ward’s name, but there were three
active warrants “attached” to that truck for Ward. Gehring testified that the sole
occupant of the truck appeared to be Ward: “I could only see him from the back, but
he had his long, dark hair and it was down.”
{¶9} Gehring activated his emergency lights and siren. As the truck slowed
and pulled over to the right on the entrance ramp to the highway, the driver looked
into the driver’s side mirror. Gehring said that he was about 20 feet from the driver’s
side mirror, and that he had a clear view of the driver. According to Gehring, “I
could see that he had facial hair and confirmed 100 percent that it was Mr. Ward.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Ward did not bring the truck to a complete stop, and, instead, got back
into the lane of travel on the highway and began to speed away. Gehring followed the
truck for over a mile, but turned off his emergency lights and stopped his pursuit
when the truck’s speed increased to 100 m.p.h. and Ward had driven onto the right
berm to pass other vehicles. The truck went out of Gehring’s sight.
{¶11} Gehring exited from the highway at the next exit, which had two left-
turn lanes and a single right-turn lane. Gehring saw Ward’s truck in the far left-turn
lane as it was stopped behind another car at the traffic light. Gehring drove into the
right lane so that he “could get closer to the vehicle and confirm who the subject was
driving.” Gehring stated, “That time I got parallel with the vehicle and confirmed
Mr. Ward was driving the vehicle.” Gehring estimated that he was about 70 feet
away from Ward.
{¶12} Gehring testified that he had a clear view of Ward, and that “it was
light out.” Although it was 8:00 p.m. on a late November evening, Gehring stated,
“[F]rom my recollection[,] I could still see. We’re under lights, so like I said it was
still light out to where I could see.”
{¶13} When the traffic light turned green, Ward drove away. Gehring did
not attempt to effectuate a traffic stop because he was no longer in his jurisdiction
and decided that he would assign warrants and charges later.
{¶14} When Gehring looked up Ward’s driving status, he learned that Ward’s
driver’s license was suspended. Records from the Ohio Bureau of Motor Vehicles
demonstrated that, on the date of the offense, Ward’s driver’s license had eight
different active suspensions, including an FRA suspension. Gehring charged Ward
with failure to comply and driving under an FRA suspension.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Kanishia Moton, Ward’s fiancée, testified that Ward had been with her
at her mother’s home on Westwood in Cincinnati on the date of the offense, so he
could not have been on Ridge Road.
{¶16} Ward testified that he was not driving the truck at the time of the
offense and that he did not know who was. He acknowledged that “probably like a
month before” the offense, Officer Gehring had pulled him over when he was driving
the same truck.
{¶17} The trial court found Ward guilty of both the failure-to-comply and
FRA-suspension offenses. Then Ward entered a guilty plea to driving under a 12-
point suspension, an offense that occurred in March 2018, in exchange for the state’s
dismissal of another driving-under-suspension charge.
{¶18} Ward now appeals, raising four assignments of error for our review.
Bench Trial
{¶19} In his first assignment of error, Ward argues that the trial court
committed structural error by violating his right to autonomy under the Sixth and
Fourteenth Amendments to the United States Constitution and Article I, Section 10
of the Ohio Constitution. Specifically, Ward asserts that by ordering the failure-to-
comply and FRA-suspension charges to proceed to a bench trial, the court denied his
right to choose to have a jury trial.
{¶20} First, we point out that Ward was not entitled to a jury trial for the
offense of driving under an FRA suspension, an unclassified misdemeanor, so the
trial court did not err in conducting a bench trial with respect to that offense. See
State v. Howell, 1st Dist. Hamilton Nos. C-160679 and C-160680, 2017-Ohio-7182, ¶
15. Ward was entitled to a jury trial for the failure-to-comply offense, but because it
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OHIO FIRST DISTRICT COURT OF APPEALS
was a petty offense, he was required to file a timely written demand for a jury trial to
secure that right. Id. at ¶ 10, citing State v. Tate, 59 Ohio St. 2d 50, 52, 391 N.E.2d
738 (1979); Crim.R. 23(A).
{¶21} Crim.R. 23(A) requires the jury demand to 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 date set for trial, whichever is
later.” Under the rule, the failure to file a timely written jury demand results in a
“complete waiver” of the right to a jury trial. In this case, it is undisputed that no
timely written jury demand was filed prior to trial.
{¶22} Ward points out that prior to trial, defense counsel informed the court
that Ward wanted to have a jury trial. He asserts that, by denying counsel’s requests
for a continuance and to withdraw as counsel, the trial court denied Ward his
constitutional right to autonomy, “specifically, to choose to have a jury trial.” Ward
contends that, under the United States Supreme Court’s decision in McCoy v.
Louisiana, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the trial court’s violation of his
Sixth Amendment autonomy right resulted in structural error.
{¶23} In McCoy, the Supreme Court held that the Sixth Amendment was
violated when defense counsel conceded the defendant’s guilt during his capital trial
even though the defendant had “vociferously insisted that he did not engage in the
charged acts and adamantly objected to any admission of guilt.” McCoy at 1505. In
so holding, the court recognized that while defense counsel has control over trial-
management decisions, some decisions “are reserved for the client—notably, whether
to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an
appeal.” Id. at 1508. The defendant’s autonomy is violated when defense counsel
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OHIO FIRST DISTRICT COURT OF APPEALS
acts contrary to the defendant’s express defense objective. Id. at 1509. The court
concluded that structural error resulted when the trial court allowed defense counsel
to usurp control of a decision solely within the defendant’s prerogative. Id. at 1511.
{¶24} The defendant in McCoy opposed counsel’s “assertion of his guilt, at
every opportunity, before and during trial, both in conference with his lawyer and in
open court.” Id. at 1504. In this case, however, the record contains no evidence that
Ward had instructed defense counsel to request a jury trial at any time prior to the
trial date or that counsel had overridden or ignored Ward’s autonomy. On the
contrary, defense counsel conveyed Ward’s wish to the trial court and requested a
continuance.
{¶25} Consequently, the trial court did not violate Ward’s right to autonomy
when it proceeded to a bench trial. By failing to file a timely demand, Ward waived
his right to a jury trial on the failure-to-comply charge. See Crim.R. 23(A). We
overrule the first assignment of error.
Effective Assistance of Counsel
{¶26} In his second assignment of error, Ward argues that he was denied the
effective assistance of trial counsel where counsel failed to file a jury demand at his
request. To prevail on an ineffective-assistance claim, an appellant must
demonstrate that (1) counsel’s performance was deficient, and (2) counsel’s deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 141-142,
538 N.E.2d 373 (1989).
{¶27} The failure-to-comply charge was scheduled for a bench trial at least
two different times. The record does not show that Ward expressed a desire to have
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OHIO FIRST DISTRICT COURT OF APPEALS
his failure-to-comply charge tried before a jury at any time before the day of the trial.
Ward cannot establish that counsel performed deficiently by failing to file a timely
jury demand when nothing in the record shows that he requested a jury prior to the
trial date. Knowing that Ward’s eleventh-hour request for a jury trial was untimely,
counsel moved for a continuance and to withdraw from representation. When the
trial court denied those motions, counsel was left with no choice but to proceed to
represent Ward at the bench trial. We cannot say that counsel performed deficiently.
{¶28} In the absence of evidence of a criminal defendant’s timely
communication to counsel regarding a desire to have a petty offense tried before a
jury, counsel’s decision to try a petty offense case to the court rather than a jury is a
strategic decision and does not constitute deficient performance. See State v.
Todaro, 11th Dist. Ashtabula No. 2004-A-0002, 2005-Ohio-3400, ¶ 36; see also
State v. Rouse, 7th Dist. Belmont No. 04 BE 53, 2005-Ohio-6328, ¶ 23 (declining to
address the issue of counsel’s effectiveness where the record contained no evidence
that the defendant had informed counsel of her desire for a jury trial); State v.
Edmonds, 2d Dist. Montgomery Nos. 24155 and 24156, 2011-Ohio-1282, ¶ 38. We
overrule Ward’s second assignment of error.
Weight of the Evidence
{¶29} In his third assignment of error, Ward argues that his failure-to-
comply and FRA-suspension convictions were against the manifest weight of the
evidence. He argues that Sergeant Gehring could not have positively identified him
as the driver of the truck.
{¶30} In considering a challenge to the weight of the evidence, we must
examine the entire record, weigh the evidence and all reasonable inferences, consider
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OHIO FIRST DISTRICT COURT OF APPEALS
the credibility of witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a manifest miscarriage of
justice. State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997).
{¶31} Based upon our review of the record, we cannot conclude that the trial
court lost its way in finding Ward guilty of the offenses. Before the pursuit, Gehring
saw Ward’s face reflected in the driver’s mirror, and he “confirmed 100 percent that
it was Mr. Ward.” And after the pursuit ended, Gehring pulled parallel to the truck
and had another clear view of Ward from about 70 feet away. The trial court was in
the best position to judge the witnesses’ credibility, and it was entitled to reject
Ward’s claim that he was not the driver of the truck and to reject his alibi defense.
See State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. Therefore, we hold that Ward’s failure-to-comply and FRA-suspension
convictions were supported by the weight of the evidence. We overrule the third
assignment of error.
Guilty Plea
{¶32} In his fourth assignment of error, Ward argues that his guilty plea to
driving under a 12-point suspension was not knowingly, intelligently, or voluntarily
entered. He does not, however, point to any particular failure by the trial court.
{¶33} Ward entered a guilty plea to driving under a 12-point suspension, a
first-degree misdemeanor in violation of R.C. 4510.037(J), which is subject to a
maximum sentence of 180 days. R.C. 2929.24(A)(1). The offense is a “petty offense”
because its prescribed penalty includes not more than six months of jail time.
Crim.R. 2(D).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Because the plea was entered to a petty offense, the trial court was
required, pursuant to Crim.R. 11(E), to inform Ward only of the effect of the plea.
State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph one
of the syllabus. To satisfy this requirement, the court was required to inform him
that a plea of guilty is a complete admission of guilt. Id. at ¶ 25.
{¶35} Here, the trial court informed Ward that “a guilty plea is a complete
admission of your guilt to the charge,” and Ward indicated that he understood.
Because the court properly informed Ward of the effect of his guilty plea, we
conclude that his plea was knowingly, intelligently, and voluntarily entered. See
State v. Daniels, 2015-Ohio-5348, 45 N.E.3d 266, ¶ 15, 17 (1st Dist). We overrule the
fourth assignment of error and affirm the trial court’s judgments.
Judgments affirmed.
MOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry this date.
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