City of Tallmadge v. DeGraft-Biney

Wright, J. The issue certified herein is whether a jury demand pursuant to Crim. R. 23(A) is timely filed when it is filed not less than ten days before the actual trial (after continuance of the trial date), even though a jury demand had not been filed at least ten days before the originally scheduled trial date. We hold that in such an event the jury demand has been timely filed. , -Crim. R. 23(A) provides in pertinent part: “* * * 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, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.” In the construction and application of Crim. R. 23 and the other Rules of Criminal Procedure, this court is guided by Crim. R. 1(B): “These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay.” See, also, R.C. 2901.04(B). . The right of trial by jury is so fundamental under our criminal justice system that this fact, in and of itself, should compel the conclusion that the [302] “date set for trial,” as used in Crim. R. 23(A), should mean ten days before the date set for the actual trial without regard to the number of continuances granted by the trial court. Moreover, the policies behind the time constraints placed upon the demand of a jury trial are adequately secured by this interpretation. In our view a ten-day period before the actual trial date allows more than sufficient time to meet the logistical requirements of any municipal court in this state with respect to summoning jurors and having those jurors available for service. See State v. Stauffer (1976), 48 Ohio St. 2d 54, 56, 2 O.O. 3d 169, 170, 356 N.E. 2d 724, 725 (P. Brown, J., dissenting). As the Court of Appeals for Washington County stated in State v. Edwards (1965), 4 Ohio App. 2d 261, 266, 31 O.O. 2d 390, 392, 208 N.E. 2d 758, 761: “Where a request for jury trial is made sufficiently in advance of the actual trial as not to interfere with the orderly administration of the business of the court and will not result in any unnecessary delay or inconvenience to witnesses or prejudice to the state, it may well be an abuse of discretion for the trial court to deny a jury trial.” In the present case and like cases, it is difficult to see how allowing a jury trial would disturb the normal and orderly administration of justice or prejudice the state. Having continued the trial to April 14, 1986, the court received a jury request on March 18, 1986, nearly one month in advance. The court certainly had sufficient time to summon and empanel a jury in this case, and thus we hold it was error to deny appellee’s jury request. See State v. Burton (1988), 39 Ohio App. 3d 151, 530 N.E. 2d 955. The time requirement for jury demands found in Crim. R. 23(A) must be interpreted and applied in conjunction with the timing of other aspects of the pretrial process. These include the appointment of counsel, pleadings and motions to withdraw pleadings, and requests for continuances. In Chardon v. Moyer (1986), 33 Ohio App. 3d 154, 514 N.E. 2d 929, the defendant pled “no contest” and subsequently was permitted to change his plea and re-enter an earlier plea of “not guilty.”1 The court of appeals held that the changing of his plea to not guilty revived his right to request a jury trial: “Since the trial court permitted appellant to withdraw his plea of ‘no contest’ and resubmit a plea of ‘not guilty,’ we conclude that the result of this exercise had the express effect of negating appellant’s prior waiver of his right to a jury trial.” Id. at 156, 514 N.E. 2d at 931. See, also, State v. Grimsley (1982), 3 Ohio App. 3d 265, 266-267, 3 OBR 308, 310-311, 444 N.E. 2d 1071, 1073-1074. We recognize that Moyer and Grimsley do not address the specific question with which this court is faced today. However, we agree with the [303] basic tenet of these cases that the right to a jury trial is too important to be prematurely lost in cases where proper pleadings, motions and continuances delay the actual date of trial. Thus we hold that the provision of Crim. R. 23(A) requiring that jury demands in petty offense cases be filed “not less than ten days prior to the date set for trial” means ten days before the actual trial date regardless of the number of continuances for whatever reasons which may have been granted. See Edwards, supra, syllabus. See, also, Dayton v. Wood (June 10,1981), Montgomery App. No. CA 7001, unreported. In reaching this conclusion, it is necessary to adopt a view that is contrary to the majority opinion in State v. Stauffer, supra. It is clear that the facts in that case are similar to those in the case before us.2 In Stauffer, this court, three members dissenting, strictly applied Crim. R. 23(A) and denied a jury trial to a defendant whose jury demand was not timely filed with respect to the originally scheduled trial date despite the fact that the demand was made twenty days before the actual trial date. We believe that the Stauffer majority’s reading of Crim. R. 23(A) defeats the purposes of the Rules of Criminal Procedure, which are to ensure the fair, impartial, speedy, and sure administration of justice. Crim. R. 1(B). See State v. Thomas (1980), 61 Ohio St. 2d 223, 225, 15 O.O. 3d 234, 235, 400 N.E. 2d 401, 403-404. Thus, Stauffer is hereby overruled. In addition to Stauffer, appellant cites two cases from other jurisdictions which adopt a strict reading of rules requiring the filing of a jury demand a specific number of days before trial. State v. Nielson (1977), 199 Neb. 597, 260 N.W. 2d 321, overruled on other grounds, State v. Gerber (1980), 206 Neb. 75, 291 N.W. 2d 403; Carrell v. Justice’s Court of Reno Twp. (1983), 99 Nev. 402, 663 P. 2d 697. In these cases the courts held that “trial” as used in the jury demand rule refers to the originally scheduled trial date and not necessarily the actual trial. With all due respect to our brethren in Nebraska and Nevada, we believe they have in some measure ignored the concept of “justice for all” in their preoccupation with form. We recognize that we are living during a time of increased litigation, both criminal and civil, with attendant demands upon the judicial process. However, this factor should not stand in the way of a reasonable application of the rules to accommodate a fundamental constitutional right — the right of trial by one’s peers. Accordingly, we hold that the time limits of Crim. R. 23(A) regarding the filing of a jury demand are to be computed with respect to the last scheduled trial date. Where a jury demand is not timely filed with respect to the originally scheduled trial date, a continuance of the trial will renew the [304] time within which to file a jury demand. Since appellee’s jury request was filed March 18, 1986, not less than ten days before the actual trial date of April 14, 1986, his request was timely filed. The court of appeals decision is affirmed. Judgment affirmed. Sweeney, Locher, Douglas and H. Brown, JJ., concur. Moyer, C.J., and Holmes, J., dissent. Footnotes [1] The defendant in Moyer was charged with a petty theft offense. On December 10, 1984, he pled “not guilty.” He was notified on January 3, 1985, that trial was set for January 31, 1985. Thus, under Crim. R. 23(A) a jury demand was due on or before • January 21, 1985. On January 17, 1985, the defendant changed his plea to “no contest,” which effected a waiver of his right to a jury trial by virtue of Crim. R. 11(B). At sentencing on March 5, 1985, defendant was permitted to withdraw his “no contest” plea and reenter his earlier plea of not guilty. He also filed a written request for a jury trial. The trial court denied the jury trial request, and a bench trial was set for March 7, 1985, at which defendant was convicted and sentenced. [2] In Stauffer, the defendant was charged with operating a motor vehicle while intoxicated. On October 7, 1974, he pled not guilty and requested the appointment of counsel. Trial was set for October 17, 1974. Thus under Crim. R. 23(A) a jury demand was due on or before October 10, 1974, three days after notice of date set for trial. Counsel for the defendant was appointed on October 9, 1974, and notified of his appointment on October 10, 1974, the last day the jury demand was due according to the interpretation of the majority in Stauffer. Counsel filed a jury demand on October 11,1974. The trial court denied the jury demand, ruling that the language of Crim. R. 23 is mandatory. However, the court later continued the trial to October 31, 1974, which was the actual trial date.