Lorain v. Rubenstein , 2019 Ohio 3417 ( 2019 )

[Cite as Lorain v. Rubenstein, 2019-Ohio-3417.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
CITY OF LORAIN, OHIO C.A. No. 18CA011323
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANITA RUBENSTEIN LORAIN MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 2016CRB01260
DECISION AND JOURNAL ENTRY
Dated: August 26, 2019
CARR, Judge.
{¶1} Appellant, Anita Rubenstein, appeals the judgment of the Lorain Municipal
Court. This Court reverses and remands.
I.
{¶2} This matter arises out of an incident that occurred at Lorain County Health and
Dentistry on April 19, 2016. A customer service representative at the health center called 911
that day and reported that a disgruntled patient had slammed the glass window at the reception
desk, causing the glass to shatter. The customer service representative identified Rubenstein as
the individual who had shattered the glass.
{¶3} Rubenstein was charged with one count of criminal damaging or endangering in
violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree. A warrant on the
complaint was executed more than a year later. Rubenstein entered a plea of not guilty to the
charge. After receiving appointed counsel, Rubenstein successfully moved for new appointed
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counsel. When that attorney subsequently withdrew, a third attorney was appointed to represent
Rubenstein. Rubenstein filed a written motion to change her plea to not guilty by reason of
insanity but that motion was ultimately withdrawn. On February 28, 2018, Rubenstein filed a
written jury demand. Rubenstein ultimately elected to represent herself at trial with appointed
counsel serving as standby counsel. The matter proceeded to a bench trial where Rubenstein was
found guilty of the sole charge against her. The trial court ordered her to pay a $250 fine and
court costs.
{¶4} On appeal, Rubenstein raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT HELD A BENCH TRIAL AFTER DEFENDANT HAD MADE A
JURY DEMAND.
{¶5} In her assignment of error, Rubenstein contends that the trial court committed
reversible error when it conducted a bench trial after she filed a written demand for a jury trial.
This Court agrees.
{¶6} In support of her position that the trial court committed reversible error when it
conducted a bench trial in this matter, Rubenstein emphasizes that she invoked her right to a jury
trial and, further, that she then never filed a subsequent written waiver of her right to a jury trial
under R.C. 2945.05. In response, the City contends that there was no harm in this case because
the City and the trial judge agreed prior to the commencement of trial that, regardless of the
outcome of trial, the trial court would not impose jail time or a significant fine.
{¶7} R.C. 2945.17 states as follows:
(A) At any trial, in any court, for the violation of any statute of this state, or of
any ordinance of any municipal corporation, except as provided in
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divisions (B) and (C) of this section, the accused has the right to be tried
by a jury.
(B) The right to be tried by a jury that is granted under division (A) of this
section does not apply to a violation of a statute or ordinance that is any of
the following:
(1) A violation that is a minor misdemeanor;
(2) A violation for which the potential penalty does not include the possibility
of a prison term or jail term and for which the possible fine does not
exceed one thousand dollars.
{¶8} “In petty offense cases, where there is a right of jury trial, the 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[.]” Crim.R. 23(A); see also
North Ridgeville v. Ward, 9th Dist. Lorain Nos. 91CA005262, 91CA005263, 1992 WL 217980,
*2 (Sept. 2, 1992) (“In petty offense cases where such a right exists, * * * the defendant must
make a written demand for a jury trial.”).
{¶9} R.C. 2945.05 provides that in all criminal cases pending in courts of record in
Ohio, a defendant may waive their right to a jury trial. R.C. 2945.05 sets forth a number of
requirements for a written jury waiver, including that the waiver “shall be in writing, signed by
the defendant, and filed in said cause and made a part of the record thereof.” R.C. 2945.05.
“Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction
to try the defendant without a jury.” State v. Riggins, 9th Dist. Summit No. 28080, 2017-Ohio-
80, ¶ 7, quoting State v. Pless, 74 Ohio St. 3d 333 (1996), paragraph one of the syllabus. This
Court has recognized that it is plain error for a trial court to conduct a bench trial when the
defendant has not made a valid jury trial waiver. State v. Woodbridge, 9th Dist. Summit No.
26911, 2014-Ohio-1338, ¶ 8.
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{¶10} We are compelled to sustain Rubenstein’s assignment of error. Rubenstein was
charged with, and ultimately convicted of, a second-degree misdemeanor, meaning she faced a
possible jail term of up to 90 days. See R.C. 2929.24(A)(2). Rubenstein filed a demand for a
jury trial pursuant to Crim.R. 23(A). At no point thereafter did she file a written jury waiver.
Irrespective of whether the trial court made assurances regarding a potential penalty during
pretrial proceedings, the issue of whether a defendant has a right to a jury trial is determined by
the potential penalty as defined by the relevant statutes. State v. Fisher, 11th Dist. Geauga No.
2001-G-2359, 2002-Ohio-3959, ¶ 11 (“The placement of a ceiling on the potential penalty by
means of judicial fiat * * * has no bearing on whether appellant is entitled to a jury trial.”).
Under the circumstances of this case, where Rubenstein had never filed a written jury waiver, the
trial court committed plain error when it conducted a bench trial.
{¶11} Rubenstein’s assignment of error is sustained.
III.
{¶12} Rubenstein’s assignment of error is sustained. The judgment of the Lorain
Municipal Court is reversed and the cause remanded for further proceedings consistent with this
decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Lorain Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
ROCKY RADEFF and JEFFREY SZABO, Prosecuting Attorneys, for Appellee.