State v. Fisher

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[Cite as State v. Fisher, 2002-Ohio-3959.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : OPINION : CASE NO. 2001-G-2359 vs : ROBERT A. FISHER, SR., Defendant-Appellant. : : Criminal Appeal from the Chardon Municipal Court, Case No. 01 CRB 000233. JUDGMENT: Reversed and remanded. James M. Gillette, Chardon Village Police Prosecutor, National City Bank Building, 117 South Street, #208, Chardon, OH 44024 (For Plaintiff-Appellee). Robert R. Umholtz, Geauga County Public Defender, 137 Main Street, Chardon, OH 44024 (For Defendant-Appellant). DONALD R. FORD, J. {¶1} Appellant, Robert A. Fisher, Sr., appeals from the April 5, 2001 judgment entry of the Chardon Municipal Court, Geauga County. {¶2} On March 11, 2001, a complaint was filed alleging that appellant 2 committed aggravated menacing, a violation of R.C. 2903.21. Appellant filed a demand for a jury trial on March 28, 2001. Appellant s trial was held on April 5, 2001. {¶3} At the commencement of the trial, the prosecutor requested that the charge be amended to menacing, a violation of R.C. 2903.22 and a misdemeanor of the fourth degree.1 Because appellant has already served twenty-five days in jail, the prosecutor stated that he was not seeking additional jail time for appellant. The trial court granted the prosecution s requested amendment of the charge. The trial court then told appellant: You d ask[ed] for a jury but there s, but I m going to deny your request for a jury since whether there s a conviction or not, there won t be any jail and since there s no potential for jail there s no right to a jury trial. The trial court proceeded with a bench trial, found appellant guilty of menacing, and fined him $100 plus costs. {¶4} Appellant has filed a timely appeal and makes the following assignments of error: {¶5} [1.] The trial court erred to the prejudice of [appellant] in denying him the right to a fair and impartial trial by jury. {¶6} [2.] The trial court erred to the prejudice of [appellant] by denying [his] constitutional right to a trial by jury absent a valid waiver of the right. {¶7} [3.] The trial court erred to the prejudice of [appellant] by finding 1. The maximum penalty for a fourth degree misdemeanor is thirty days imprisonment and a fine of $250. R.C. 2929.21(B)(4) and (C)(4). 3 [him] guilty of menacing based on the evidence presented at trial. {¶8} Appellant s first and second assignments of error will be treated in a consolidated fashion. In these two assignments of error, appellant correctly asserts that the trial court erred in denying him a trial by jury in the absence of a valid waiver. {¶9} The right to a jury trial in Ohio for a misdemeanor offense is not absolute and unrestricted and may be conditioned upon the defendant making a written demand for such a trial. State v. Tate (1979), 59 Ohio St.2d 50, 52. R.C. 2945.17 states that [a]t any trial, in any court, for the violation of any statute of this state *** except in cases in which the penalty involved does not exceed a fine of one hundred dollars, the accused has the right to be tried by a jury. {¶10} The commentary to R.C. 2945.17 provides that [a]n accused is entitled to a jury if the potential penalty for the offense charged is a fine of more than $100, even if imprisonment isn t imposed, or if the potential penalty includes imprisonment for any length of time no matter how short, even though a fine isn t imposed. Further, this court has held that a defendant is entitled to a jury trial if the potential penalty includes imprisonment for any length of time. State v. Taylor (May 11, 2001), 11th Dist. No. 98-P-0020, 2001 WL 502006, at 1. The potential penalty for a conviction for menacing, a fourth degree misdemeanor, is thirty days imprisonment and/or a fine of $250. R.C. 2929.21. {¶11} Here, the trial court stated at the commencement of the trial that it 4 would not sentence appellant to any additional jail time, nor would his fine exceed $100. However, it is the potential penalty, as defined by the relevant statute or statutes that determines whether a defendant has a right to a jury trial. The placement of a ceiling on the potential penalty by means of judicial fiat on the day of trial has no bearing on whether appellant is entitled to a jury trial. Because appellant was charged with a violation of R.C. 2903.22, which, as a fourth degree misdemeanor, subjected him to a potential penalty of thirty days imprisonment and a fine of $250, he had a right to a jury trial. Appellant could have waived his right to a jury trial, but did not do so. Therefore, his first assignment and second assignment of error are well taken. {¶12} In view of our treatment of appellant s two assignments of error, his third assignment of error is moot. {¶13} For the foregoing reasons, the decision of the Chardon Municipal Court is reversed, and this matter is remanded for further proceedings consistent with this opinion. WILLIAM M. O NEILL, P.J., ROBERT A. NADER, J., concur.

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