State v. Slaughter , 2022 Ohio 3946 ( 2022 )

[Cite as State v. Slaughter, 2022-Ohio-3946.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29305
:
v. : Trial Court Case No. 2021-CR-2723
:
SKYLER SLAUGHTER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 4th day of November, 2022.
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MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Courthouse, Ohio 43160
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Skyler Slaughter was convicted after a bench trial in the Montgomery County
Court of Common Pleas of failure to notify, a felony of the first degree. He appeals from
his conviction, claiming that he did not validly waive his right to a jury trial and that his
conviction was against the manifest weight of the evidence. For the following reasons,
the trial court’s judgment will be reversed, and the case will be remanded for further
proceedings.
I. Facts and Procedural History
{¶ 2} In 2013, while Slaughter was a juvenile, he was adjudicated delinquent for
committing rape, a felony of the first degree if committed by an adult. As a result of his
adjudication, Slaughter was designated a Tier III juvenile sex offender. That designation
was reduced to a Tier I juvenile sex offender, which required him to register his residential
address with the Montgomery County Sheriff’s Office and to verify his address annually
for 10 years. Slaughter’s registration requirement was scheduled to terminate in January
2023.
{¶ 3} In January 2021, Slaughter verified his residential address on Valleyview
Drive in Dayton. In August 2021, officers determined that he was not, in fact, residing at
that address and had not notified the Sheriff’s Office of his actual address.
Consequently, Slaughter was indicted for failure to notify, in violation of R.C.
2950.05(F)(1), with a prior violation of that statute. He remained incarcerated during the
pendency of his case.
{¶ 4} A final pretrial conference was held on October 5, 2021, which Slaughter
attended remotely from the Montgomery County Jail. During that proceeding, Slaughter
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orally waived his right to a jury trial, and he authorized his attorney to sign a jury waiver
form on his behalf. The jury waiver form, signed by counsel for Slaughter, was filed on
October 6, 2021.
{¶ 5} The matter proceeded to a bench trial during which the State presented four
witnesses and five exhibits. Slaughter offered no evidence in his defense. The court
found him guilty of failure to notify, as alleged in the indictment, and sentenced him to a
mandatory term of a minimum of three years and a maximum of four and a half years in
prison.
{¶ 6} Slaughter’s original appointed counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that she could
find no non-frivolous issues for appeal. Upon an initial review of the record, we found
that a non-frivolous issue existed regarding whether Slaughter validly waived his right to
a jury trial. We rejected the Anders brief and appointed new counsel, who now raises
two assignments of error. We find the first assignment of error to be dispositive.
II. Waiver of Jury Trial
{¶ 7} In his first assignment of error, Slaughter claims that the trial court erred in
finding that his jury waiver was “adequately, intelligently and knowingly” made, and thus
his bench trial violated his rights to due process and a fair trial under the federal and state
constitutions. He argues, specifically, that he never signed the jury trial waiver form as
required by R.C. 2945.05, and thus, the trial court lacked jurisdiction to conduct a bench
trial.
{¶ 8} With limited exceptions, a criminal defendant enjoys the constitutional right
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to a jury trial. Sixth Amendment to the U.S. Constitution; Ohio Constitution, Article I,
Section 5; R.C. 2945.17. However, a defendant may waive that right. E.g., State v.
Bays, 87 Ohio St.3d 15, 19, 716 N.E.2d 1126 (1999). The decision whether to waive a
jury trial belongs to the defendant, not defense counsel. State v. Lawson, 165 Ohio St.3d
445, 2021-Ohio-3566, 179 N.E.3d 1216, ¶ 82.
{¶ 9} In Ohio, Crim.R. 23 and R.C. 2945.05 govern a felony defendant’s waiver of
the right to a jury trial. See State v. White, 2d Dist. Montgomery No. 28338, 2020-Ohio-
5544, ¶ 57. Crim.R. 23(A) provides, in pertinent part: “In serious offense cases the
defendant before commencement of the trial may knowingly, intelligently and voluntarily
waive in writing his right to trial by jury. Such waiver may also be made during trial with
the approval of the court and the consent of the prosecuting attorney.” Failure to notify
is a serious offense. See Crim.R. 2(C) (defining “serious offense” as any felony or any
misdemeanor for which the penalty includes confinement for more than six months).
{¶ 10} R.C. 2945.05 sets forth the manner in which a defendant may waive this
right. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 6. That
statute states:
In all criminal cases pending in courts of record 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
entitled in the court and cause, and in substance as follows: “I __________,
defendant in the above cause, hereby voluntarily waive and relinquish my
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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.”
Such 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. Such waiver may be withdrawn by the defendant at any time
before the commencement of the trial.
Thus, five conditions must be satisfied for a defendant’s jury waiver to be valid. Lomax
at ¶ 9. The jury 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.” Id.{¶ 11} In this case, Slaughter orally waived his right to jury trial during his final
pretrial conference on October 5, 2021. Counsel was present in court; Slaughter
participated remotely from the jail. During the hearing, the trial court explained the
difference between a bench and a jury trial, and Slaughter orally expressed his
understanding and that he was waiving his right to a jury trial of his own free will. The
court then asked him if he would authorize his defense counsel “to sign a written form
that would memorialize in writing” his oral waiver. Slaughter responded affirmatively.
The court scheduled a bench trial for October 21, 2021.
{¶ 12} The written jury waiver form, which was filed the next day, was signed by
the trial judge and defense counsel. Defense counsel’s name appeared above the
signature line for defense counsel and again as “[Defense counsel] FOR” above the
signature line for “Defendant (must sign in person).” Slaughter did not, at any time,
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personally sign a jury waiver form. The question before us, therefore, is whether
counsel’s signing of the jury waiver form, with Slaughter’s express permission, was
sufficient to satisfy the statutory requirement that the waiver form be “signed by the
defendant.” We conclude it was not.
{¶ 13} The Ohio Supreme Court has consistently required strict compliance with
the statutory requirements of R.C. 2945.05. In State v. Tate, 59 Ohio St.2d 50, 391
N.E.2d 738 (1979), the Court made clear that “it must appear of record” that a defendant
waived his right to a jury trial “in writing in the manner provided by R.C. 2945.05.” Id. at
syllabus. The supreme court again emphasized the need for strict compliance in State
ex rel. Jackson v. Dallman, 70 Ohio St.3d 261, 638 N.E.2d 563 (1994), stating that “[t]here
must be strict compliance with R.C. 2945.05 for there to be a waiver of a right to a jury
trial; where the record does not reflect strict compliance, the trial court is without
jurisdiction to try the defendant without a jury.” Id. (granting writ of habeas corpus where
no evidence that written jury form was ever filed and made a part of the record).
The following year, the Ohio Supreme Court appeared to soften its stance, reversing the
grant of a writ of habeas corpus where an executed written jury waiver was placed in the
court file, but was not filed stamped and formally made a part of the record. State ex rel.
Larkins v. Baker, 73 Ohio St.3d 658, 653 N.E.2d 701 (1995). The supreme court
reasoned that the “failure to strictly comply with R.C. 2945.05 by not filing the executed
written waiver was not the result of Larkins’s failure to properly waive his right to be tried
by a jury and elect to be tried by the court. The evidence is uncontroverted that he did
so. Instead, the failure to comply with R.C. 2945.05 was the result of an error on the part
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of the trial court to formally file the executed written waiver.” Id. at 661.
{¶ 14} However, the Ohio Supreme Court quickly reaffirmed the need for strict
compliance in State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766 (1996). The court
limited Larkins, stating that “[a]lthough Larkins seemingly created an exception to the rule
that failure to strictly comply with R.C. 2945.05 deprives a court of jurisdiction to try a
criminal defendant without a jury, the sole proposition for which Larkins stands is that a
violation of R.C. 2945.05 is not the proper subject for habeas corpus relief.” Id. at 339.
It also distinguished Larkins procedurally and factually. That same year, on the authority
of Pless, the supreme court reversed a conviction due to a failure to time-stamp the jury
trial waiver form. State v. Haught, __ Ohio St.3d __, 670 N.E.2d 232 (1996).
{¶ 15} Since then, the Court has repeatedly reiterated the need for strict
compliance with R.C. 2945.05. See State v. Otte, 94 Ohio St.3d 167, 761 N.E.2d 34(2002) (affirming denial of application for reopening where appellant would have lost had
a Pless issue been raised); State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779
N.E.2d 1017, ¶ 29; State v. Reese, 106 Ohio St.3d 65, 2005-Ohio-3806, 831 N.E.2d 983(pro se defendant had “opportunity to consult with counsel” prior to jury waiver, which
strictly complied with R.C. 2945.05’s requirements); Lomax, 114 Ohio St.3d 350, 2007-
Ohio-4277, 872 N.E.2d 279; State v. Brinkman, Ohio Slip Opinion No. 2022-Ohio-2550,
__ N.E.3d __, ¶ 30-31.
{¶ 16} In its appellate brief, the State asserts that “both Pless and R.C. 2945.05 do
not contemplate procedure during a global pandemic.” The State cites to the common
pleas court’s March 2020 emergency order, Ohio Supreme Court guidance, and Covid-
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19 transmission rates.
{¶ 17} We recognize that public health concerns related to the Covid-19 pandemic
have had significant impacts on courts in Montgomery County and throughout Ohio. In
March 2020, the Ohio legislature enacted Am.Sub.H.B. No. 197, which tolled,
retroactively to March 9, 2020, all statutorily-established statutes of limitations, time
limitations, and deadlines in the Ohio Revised Code and Administrative Code until the
expiration of Executive Order 2020-01D or until July 30, 2020, whichever came first. The
Ohio Supreme Court similarly issued an administrative order that retroactively tolled the
time requirements established by all Supreme Court-promulgated rules for the same
period of time. See State v. Woodard, 2d Dist. Montgomery No. 29110, 2022-Ohio-3081,
¶ 28.
{¶ 18} The Montgomery County Common Pleas Court, General Division, also
issued a series of emergency and administrative orders in response to the Covid-19
pandemic, which included the suspension of jury trials. See, e.g., https://www.
supremecourt.ohio.gov/docs/coronavirus/courts/Montgomery/CPGeneral_072720.pdf;
State v. Lovett, 2d Dist. Montgomery No. 29240, 2022-Ohio-1693. It appears the court
last issued an emergency order, which continued the suspension of jury trials, on
December 17, 2020. That order expired on March 27, 2021.
{¶ 19} Ohio courts continue to employ protocols to reduce the transmission of the
coronavirus among court staff, the public, attorneys, and litigants. The coronavirus
remains a persistent presence. However, we find no basis to conclude that Slaughter
was precluded from personally signing the waiver form due to those protocols or
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otherwise.
{¶ 20} On September 14, 2021, the trial court held a scheduling conference for
Slaughter’s case. At that time, defense counsel told the trial court that he and Slaughter
had “had the opportunity to speak at length about his case at the jail here just about an
hour ago.” When Slaughter orally waived his right to a jury trial three weeks later at the
final pretrial conference, there was no discussion about counsel’s ability to procure a
signed jury waiver form from Slaughter. Rather, after ensuring that Slaughter was
waiving his right knowingly, intelligently and voluntarily, the court stated:
THE COURT: Okay. And so Mr. Slaughter has verbally waived his right to
a jury trial.
And, Mr. Slaughter, do you authorize your attorney * * * to sign a
written form that would memorialize in writing what you just told me verbally
which is that you’re willing to give up your right to a jury trial and proceed
with just a judge trial?
THE DEFENDANT: Yes.
THE COURT: Was that a yes?
THE DEFENDANT: Yes.
{¶ 21} It appears that having the form signed by defense counsel was simply a
matter of expedience due to the fact that Slaughter was not physically present in court to
sign the form himself on October 14, 2021. Slaughter had previously signed a notice of
registration duties (State’s Ex. 2), and there was no suggestion that Slaughter was
physically incapable of signing a jury waiver form. Defense counsel had spoken with
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Slaughter at the jail a few weeks before the final pretrial conference, and there is no
indication that, due to Covid-19 protocols, defense counsel could not return to the jail to
have the form personally signed by Slaughter or could not have otherwise arranged for
Slaughter to sign the form prior to trial. We also note that Slaughter personally appeared
for trial on October 21, 2021. We find no reason why Slaughter could not have signed a
jury waiver form and had it filed that morning before trial began.
{¶ 22} We are aware that Slaughter has suffered no prejudice from the jury waiver
procedure used in his case, and we are hard-pressed to find a better example of
substantial compliance that approaches strict compliance without actually reaching it.
Nevertheless, we are mindful of the warning provided by the Ohio Supreme Court in
Pless, which reversed a murder conviction when the signed jury waiver was not filed
and/or included in the court record:
We are aware that our decision today might not be well received. Appellant
is a brutal killer and there is no question concerning his culpability in the
slaying of Sherry Lockwood. However, the requirements of R.C. 2945.05
are clear and unambiguous, and we are constrained to enforce the statute
as written. If we were to ignore this statute, as some would have us do,
then, henceforth, no clear and unambiguous statute would be safe from a
“substantial compliance” interpretation.
Pless, 74 Ohio St.3d at 340, 658 N.E.2d 766. Justice Resnick similarly commented in
her concurring opinion that the statute was “so clear” that there can be “no doubt” that all
of the requirements need to be completed for a jury waiver to be valid. Id. at 340
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(Resnick, J., concurring). She also noted that “[i]n this case, no abuse appears to have
occurred, but if we were to allow anything less than strict compliance with the statute, as
the dissent would allow, abuses may occur.” Id. at 340-341.
{¶ 23} Finally, it is irrelevant that Slaughter did not object to the trial court’s
proceeding with a bench trial. See State v. Bell, 2017-Ohio-7512, 96 N.E.3d 1219, ¶ 19
(2d Dist.). Silent acquiescence to a bench trial is not sufficient to waive a defendant’s
right to a jury trial. State v. Grier, 2d Dist. Montgomery No. 23662, 2010-Ohio-5751,
¶ 15, citing Tate, 59 Ohio St.2d at 53, 391 N.E.2d 738.
{¶ 24} This case presents the first step in a slippery slope. Were we to sanction
Slaughter’s oral agreement to having his attorney sign the jury waiver form on his behalf,
absent some exceptional circumstance, we might soon find courts employing this practice
routinely. As stated by Justice Resnick, “shortcuts, once permitted, will be taken more
and more as acceptable practice and without following the requirements that the General
Assembly wrote into the law.” Pless at 341 (Resnick, J., concurring). We are not willing
to take this step.
{¶ 25} Slaughter’s first assignment of error is sustained. In light of our disposition
of the first assignment of error, the second assignment of error is overruled as moot.
III. Conclusion
{¶ 26} The trial court’s judgment will be reversed, and the matter will be remanded
for further proceedings.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Steven H. Eckstein
Hon. Mary L. Wiseman