Ohio Court Cases and Opinions - Ohio Legal Research
|Need Legal Help?|
NOT FINDING WHAT YOU NEED? -RESEARCH
This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE
The State of Ohio, Appellee, v. Pless, Appellant.
[Cite as State v. Pless (1996), ___ Ohio St.3d ___.]
Criminal law -- Requirements for waiver of right to trial by jury -- Absent
strict compliance with R.C. 2945.05, trial court lacks jurisdiction to try
defendant without a jury -- Failure to comply with R.C. 2945.05 may be
remedied only in a direct appeal from a criminal conviction.
In a criminal case where the defendant elects to waive the right to trial by
jury, R.C. 2945.05 mandates that the waiver must be in writing, signed
by the defendant, filed in the criminal action and made part of the record
thereof. 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. Tate , 59 Ohio St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738, and
State ex rel. Jackson v. Dallman , 70 Ohio St.3d 261, 638 N.E.2d
563, construed and applied.)
The failure to comply with R.C. 2945.05 may be remedied only in a
direct appeal from a criminal conviction. (State v. Tate , 59 Ohio
St.2d 50, 13 O.O.3d 36, 391 N.E.2d 738; State ex rel. Jackson v.
Dallman , 70 Ohio St.3d 261, 638 N.E.2d 563; and State ex rel.
Larkins v. Baker , 73 Ohio St.3d 658, 653 N.E.2d 701,
(No. 94-2526 -- Submitted October 24, 1995 -- Decided January 17,
APPEAL from the Court of Appeals for Cuyahoga County, No. 63477.
On July 11, 1991, Carroll Dean Pless, appellant, brutally murdered
Sherry Lockwood in Cuyahoga County, Ohio. On July 22, 1991, the Cuyahoga
County Grand Jury indicted appellant on two separate counts of aggravated
murder. Count One charged appellant with purposely, and with prior
calculation and design, causing Lockwood's death. Count Two charged
appellant with the purposeful killing of Lockwood during the commission of an
aggravated burglary and/or kidnapping. Each of the two counts of aggravated
murder carried four death penalty specifications,1 a firearm specification, and a
specification alleging that appellant had a prior aggravated felony conviction.
Appellant was also indicted, in Counts Three and Four, for aggravated burglary
and kidnapping, respectively, with a firearm specification and a specification
alleging that appellant had a prior aggravated felony conviction. Additionally,
appellant was indicted for intimidation of a witness (Count Five) and for
having a weapon while under disability (Count Six). The fifth and sixth counts
of the indictment each carried a firearm specification and a specification
alleging that appellant had previously been convicted of a violent offense.
On January 13, 1992, appellant appeared in open court and voluntarily
signed a written waiver of his right to trial by jury.2 Thereafter, the trial court
issued a journal entry stating that appellant had waived his right to a jury trial
and had elected to be tried before a three-judge panel. However, appellant's
signed, written waiver is not contained in the record. There is no evidence that
the written waiver was ever filed of record and/or included in the trial court's
Appellant was tried before a three-judge panel. The panel found
appellant guilty of all charges and specifications alleged in the indictment,
except for the prior aggravated felony specification in Counts One through
Four of the indictment. For the aggravated murder of Lockwood, the panel
sentenced appellant to death. For the remaining offenses, appellant was
sentenced in accordance with law. On appeal, the court of appeals affirmed
appellant's convictions and sentences, including the sentence of death.
The cause is now before this court upon an appeal as of right.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Carmen Marino, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, Kathleen A. McGarry,
Assistant Public Defender, and David Doughten, for appellant.
DOUGLAS, J. Appellant advances twenty propositions of law for our
consideration. In his first proposition of law, appellant contends that the three-
judge panel had no jurisdiction to conduct the trial because appellant's written
waiver of the right to trial by jury was never filed with the trial court and made
part of the record in the case. We agree, and find this issue to be dispositive of
R.C. 2945.05 provides that:
"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. * * *" (Emphasis
The requirements of R.C. 2945.05 are clear and unambiguous. The
statute requires that in order to effectuate a valid waiver of the right to trial by
jury, the defendant in a criminal action must sign a written waiver, and the
waiver must be filed and made a part of the record in the criminal case. In the
absence of strict compliance with R.C. 2945.05, a trial court lacks jurisdiction
to try the defendant without a jury. See State v. Tate (1979), 59 Ohio St.2d 50,
13 O.O.3d 36, 391 N.E.2d 738, and State ex rel. Jackson v. Dallman (1994), 70
Ohio St.3d 261, 638 N.E.2d 563.
Tate, supra, Elbert Tate was charged with a second degree
misdemeanor offense, entered a plea of "not guilty," and filed a written demand
for a jury trial. Tate never executed a written waiver of his right to trial by
jury. However, the trial court tried and convicted Tate without a jury. On
appeal, the court of appeals affirmed the judgment of the trial court. On further
appeal, this court reversed the judgment of the court of appeals and remanded
the cause to the trial court for a new trial. In Tate, supra, syllabus, we held that
"[w]here a defendant in a petty offense case has a right to trial by jury and
pleads not guilty and demands a jury trial in the manner provided by Crim.R.
23(A), it must appear of record that such defendant waived this right in writing
in the manner provided by R.C. 2945.05, in order for the trial court to have
jurisdiction to try the defendant without a jury." (Emphasis added.)
Dallman, supra, Theodore R. Jackson, Jr., was tried before a judge
and was convicted of a felony offense. Following the bench trial, Jackson filed
a petition for a writ of habeas corpus in the court of appeals, alleging that the
trial court had lacked jurisdiction to try him without a jury. In the petition,
Jackson claimed, among other things, that he had never signed a waiver of his
right to a jury trial. However, the evidence before the court of appeals clearly
indicated that Jackson had signed a written waiver form, but that the written
waiver had never been filed and made part of the record in the criminal case.
The court of appeals denied the writ, finding that the trial court had complied
with R.C. 2945.05.
Dallman, we reversed the judgment of the court of appeals and issued
the writ of habeas corpus, holding that since the waiver form was not part of
the record in the criminal case, "the common pleas court did not comply with
R.C. 2945.05, and it lacked jurisdiction to subsequently try and convict
Jackson." Id., 70 Ohio St.3d at 262, 638 N.E.2d at 565. In Dallman, we
emphasized the importance of compliance with R.C. 2945.05, 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.
State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658,
653 N.E.2d 701, this court limited the holdings of Tate and Dallman. In
Larkins, Ronald Larkins appeared in open court and signed a written waiver of
his right to trial by jury. The signed waiver form was placed in the trial court's
case file, but was not filed of record with the clerk of courts. Following a
bench trial, Larkins was convicted of aggravated murder, aggravated robbery,
and attempted murder. Thereafter, Larkins filed a petition for habeas corpus in
the court of appeals. The court of appeals granted the writ, finding that the trial
court had failed to strictly comply with R.C. 2945.05, since there was no
evidence that Larkins's written waiver form had ever been formally filed and
made a part of the record in the criminal case.
Larkins, supra, we reversed the judgment of the court of appeals,
holding that "a writ of habeas corpus will not lie where a criminal defendant
has waived his right to a jury trial by executing a written waiver, where the
waiver is handed to the trial judge and placed in the court's case file, but is not
file stamped." (Emphasis added.) Id. at 659, 653 N.E.2d at 702. In Larkins,
we found that the trial court's failure to strictly comply with R.C. 2945.05 did
not amount to a jurisdictional defect under the "unique circumstances" of the
case. Id. at 661, 653 N.E.2d at 703. Additionally, we held that Larkins was not
entitled to extraordinary relief, since he could have raised the jury waiver issue
on direct appeal from his convictions and sentences and, thus, had an adequate
remedy at law. Id. at 660, 653 N.E.2d at 702. We distinguished Tate in
Larkins, on the basis that Tate addressed the issue of compliance with R.C.
2945.05 only in the context of a direct appeal from a criminal conviction. Id. at
661, 653 N.E.2d at 703. We distinguished Dallman on the basis that Larkins's
signed written waiver form had actually been placed in the trial court's case
file. Id. Further, we limited Tate and Dallman to the extent that those
decisions were inconsistent with our holding in Larkins. Id.
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. Moreover, the "unique circumstances" of Larkins are not present
in the case at bar. First, Larkins is distinguishable on the basis that the case at
bar involves a direct appeal from a criminal conviction. Second, the record
before us contains no evidence that appellant's signed jury waiver form was
ever included in the trial court's case file. Here appellant voluntarily signed a
written jury waiver form in open court and in the presence of his trial attorneys.
The trial court issued an entry specifically acknowledging that appellant had, in
fact, waived his right to trial by jury. However, we find that there was a failure
to strictly comply with R.C. 2945.05, since there is no evidence that appellant's
signed waiver form was ever filed and made part of the record in this case.
Therefore, applying the rationale of Tate and Dallman, we are compelled to
find that the three-judge panel had no jurisdiction to try and convict appellant
on any of the charges alleged in the indictment.
We hold that in a criminal case where the defendant elects to waive the
right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing,
signed by the defendant, filed in the criminal action and made part of the record
thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial
court lacks jurisdiction to try the defendant without a jury. Additionally, in an
attempt to reconcile Tate, Dallman and Larkins, we hold that the failure to
comply with R.C. 2945.05 may be remedied only in a direct appeal from a
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.
Accordingly, we reverse the judgment of the court of appeals, vacate the
judgment of the three-judge panel, and remand this cause to the Court of
Common Pleas of Cuyahoga County for a new trial. On remand, appellant has
the right to a jury trial unless he waives that right and there is strict compliance
with R.C. 2945.05.
MOYER, C.J., WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur
PFEIFER and COOK, JJ., dissent.
The first death specification in connection with each count of aggravated
murder alleged that appellant had a prior (1983) attempted murder conviction
(see R.C. 2929.04[A]), the second alleged that appellant had purposefully
killed Lockwood during the commission of an aggravated burglary (R.C.
2929.04[A]), the third alleged that the killing occurred during the course of
a kidnapping (R.C. 2929.04[A]), and the fourth alleged that appellant had
killed Lockwood to prevent her from testifying in a criminal proceeding (R.C.
The record before us contains a transcript of the proceedings wherein
appellant signed a written waiver of his right to trial by jury. The following
colloquy occurred in open court:
"JUDGE BURNSIDE: You [appellant] have been brought before the Court
because your counsel has advised me that you are desirous of waiving your
right to a jury trial, and elect instead to be tried before a three-judge panel
provided for under the criminal rules. Is that correct?
"THE DEFENDANT: Yes, ma'm.
"JUDGE BURNSIDE: Okay. You have had an opportunity to discuss this
with your lawyers today and probably even before today?
"THE DEFENDANT: Yes.
"JUDGE BURNSIDE: Okay. Any questions whatsoever about the wisdom
of doing that? Have you, I don't want you to ask any the questions [sic], but do
you have any question in your mind about the wisdom of waiving a jury and
electing instead to go to a three-judge panel?
"THE DEFENDANT: No.
"JUDGE BURNSIDE: * * * I'm going to ask you to sign a defendant's
waiver of a jury trial, and I'm going to read it and what it says, and if there is
any question you have of your counsel present to answer any of your questions.
"It would read, if you were to sign it, I, Carroll Dean Pless, the defendant
in this case hereby voluntarily waive and relinquish my right to a trial by jury
and elect to be tried by a, this is going to have to be changed to a three-judge
panel of this court of common pleas. I understand that I have a right under the
Constitution and laws of both the United States and State of Ohio to a jury, trial
by a jury of 12, and that no verdict could be made by a jury except by the
agreement of all 12 members of that jury.
"I further state no threats or promises have been made to induce me to
waive this right, and I am not under the influence of any alcohol, drugs or
medication that would affect my decision.
"So you understand you do have a right to a jury trial, right?
"THE DEFENDANT: Yes, ma'am.
"JUDGE BURNSIDE: And you understand that when you waive that right
in this particular case it is, it is an election to be tried by a three-judge panel, do
you understand that?
"THE DEFENDANT: Yes.
"JUDGE BURNSIDE: I'm going to change the language here so it reads
three-judge panel, and the three-judge panel would be drawn from the judges of
this Court. As a matter of fact, I understand that's been selected, and I, of
course, remain the chief of the panel. You understand that?
"THE DEFENDANT: Yes.
"JUDGE BURNSIDE: It says here you would be signing a document that no
threats or promises have been made to induce you to enter this plea. Is that
"THE DEFENDANT: Yes.
"JUDGE BURNSIDE: No threats, no promises?
"THE DEFENDANT: No.
"JUDGE BURNSIDE: Further, let's go to the statement here where you will
be signing saying you are not under the influence of any drugs, alcohol or
medication. Is that a true statement?
"THE DEFENDANT: True.
"JUDGE BURNSIDE: Are you under any medication whatsoever?
"THE DEFENDANT: None.
"JUDGE BURNSIDE: Certainly not under the influence of any drugs legal
or otherwise and no alcohol?
"THE DEFENDANT: None.
"JUDGE BURNSIDE: All right. Mr. Carlin [appellant's trial counsel], I'll
hand this back to you, and I'll give you an opportunity, if you want, to discuss
it. You can step over to the bailiff's desk.
"Okay, Mr. Pless, I'm going to show you this document that Mr. Carlin
has just handed me, and the record should reflect it is the piece of paper I read
from a moment ago, only now it has filled upon it the case number, the
statement of the case. The State of Ohio versus Carroll D. Pless, and it also
reads, I, Carroll Dean Pless, the defendant in this case, as I have read it, and it
now also bears your signature. Did you in fact sign this?
"THE DEFENDANT: Yes, I did.
"JUDGE BURNSIDE: Let the record further reflect that this waiver also
reflects the following certification of both Mr. Carlin and Mr. Wagner, counsel
for Mr. Pless, I hereby certify, actually it would be we hereby certify that we
are assigned counsel for the defendant in the case, that we have explained to
our client his rights under the Constitution and the laws of the United States
and the State of Ohio to trial by jury. No threats or promises have been made
to induce the defendant to waive that right, and we certify that this waiver has
been knowingly, intelligently and voluntarily made.
"Did you sign this, Mr. Carlin?
"MR. CARLIN: Yes, I have, your Honor.
"JUDGE BURNSIDE: Mr. Wagner?
"MR. WAGNER: Yes, your Honor.
"JUDGE BURNSIDE: Any question in your minds, counselors, that your
client understands his waiver of rights and hes [sic, his] election to have the
matter heard by a three-judge panel?
"MR. CARLIN: Your Honor, we have discussed it with Mr. Pless in quite
lengthy terms, as well as with his mother, who is in the courtroom today, family
and friends. We explained to them that a three-judge panel would consider
evidence which is relevant to the case, only that relevant evidence, and should
any evidence that -- that should harmless error come into the trial, it would not
be considered by the three-judge panel because under the law that three-judge
panel is presumed to consider only relevant evidence and will disregard any
"He understood this with respect to our discussion regarding the appeal
process should a conviction be returned, he understood that as well as other
matters which Mr. Wagner and I discussed with him regarding the selection of
the panel, and he understood and he agreed to it fully. And I think that he did it
knowingly, intelligently and voluntarily.
"JUDGE BURNSIDE: Okay. Mr. Wagner?
"MR. WAGNER: Your Honor, I echo what Mr. Carlin has stated. I would
add further that this is a decision that has been arrived at after weeks and
months of discussion and thought, and I believe that there is no question that
Mr. Pless thoroughly understands his rights.
"JUDGE BURNSIDE: Okay.
"Any questions at all Mr. Pless?
"THE DEFENDANT: None, your Honor.
"JUDGE BURNSIDE: By the way, do you read and write English?
"THE DEFENDANT: Yes.
"JUDGE BURNSIDE: So you have had an opportunity to read this before
you signed it?
"* * *
"THE DEFENDANT: I understand the language and what you read to me,
and I understand it.
"* * *
"JUDGE BURNSIDE: I'm going to accept your waiver of a jury to a three-
judge panel as being voluntarily, intelligently and knowingly given. I am going
to put this on [the] Court's journal."
Alice Robie Resnick, J., concurring. I reluctantly concur in the
majority's judgment and opinion. Because of the serious nature of the crimes
committed in this case and the apparent overwhelming evidence that appellant
voluntarily waived his right to a jury trial, I find it difficult to reverse the
convictions on what appears to be a simple technicality. However, I believe we
are compelled to reach such a result in this case. The statute is absolutely clear
that certain steps must be completed in order to effectuate a defendant's waiver
of the right to a jury trial. The waiver must be (1) in writing, (2) signed by the
defendant, (3) filed in said cause, and (4) made a part of the record of the case.
R.C. 2945.05. In the instant case, appellant seemingly executed and signed a
written waiver, but the waiver was neither filed with the court nor made a part
of the record of the case. The statute does not provide for substantial
compliance. Because the statute is so clear, there can be no doubt the
legislature intended that all four elements be completed before the jury trial
waiver becomes valid.
In this case, the hearing transcript indicates that the defendant at one
time clearly chose to waive his right to a jury trial, and that the trial judge was
extremely scrupulous in ensuring that the defendant was aware of the
consequences of his choice and that he had not been pressured to make that
decision. However, no physical document exists to evidence the waiver. In
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. Moreover, appellant's attorneys, who did not represent him at trial,
do not dispute that appellant waived his right to a jury trial. However, even in
this case, we cannot be absolutely sure that, after the court had taken the signed
waiver form from appellant and had written out the journal entry and after the
court reporter had packed up and left, appellant did not change his mind and
ask that the waiver form be destroyed or returned to him. A criminal defendant
may withdraw the waiver of the right to a jury trial "at any time before the
commencement of the trial." R.C. 2945.05.
In this day of overcrowded dockets and overworked clerks, 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. In
order to ensure that criminal defendants' constitutional rights are conclusively
protected, the strict letter of the law must be followed. This protection is
especially important in this case, a death penalty case, which concerns the right
to a jury trial, a fundamental right guaranteed by the United States Constitution.
Accordingly, I respectfully concur with the majority's decision and
MOYER, C.J., DOUGLAS, WRIGHT AND F.E. SWEENEY, JJ., concur in the
foregoing concurring opinion.
COOK, J., dissenting. I respectfully dissent from the decision of the majority to
reverse appellant's convictions. This case is different from both the Dallman and Tate cases
cited by the majority. In those cases, the trial court record did not affirmatively reflect, as it
did in this case, that the defendants voluntarily waived the right to a jury trial. State ex rel.
Jackson v. Dallman (1994), 70 Ohio St.3d 261, 638 N.E.2d 563, 564, and State v. Tate
(1979), 59 Ohio St.2d 50, 52-53, 13 O.O.3d 36, 37, 391 N.E.2d 738, 739.
Our recent decision in Larkins overruled Dallman's strict compliance limitation and
controls the case at hand on the jurisdiction issue. State ex rel. Larkins v. Baker (1995), 73
Ohio St.3d 658, 661, 653 N.E.2d 701, 703. Larkins based his challenge solely on the fact
that, although his jury waiver form was physically located in the court file, the absence of a
time-stamp thereon defeated the jurisdiction of the trial court to convict him without a jury.
The majority in Larkins stated that "[t]he failure to strictly comply with R.C. 2945.05 by
failing to file a properly executed written jury trial waiver under these unique circumstances
is not a jurisdictional defect and did not affect the trial court's authority to proceed with a
bench trial." Id. at 661, 653 N.E.2d at 703. Larkins relied on R.C. 2945.06 as support for
the proposition that a trial court has jurisdiction for a bench trial only if the "defendant
waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the
Revised Code." Based on this, the Larkins majority determined that "[t]he failure to strictly
comply with R.C. 2945.05 by not filing the executed written waiver was not the result of
Larkins' failure to properly waive his right to be tried by a jury and elect to be tried by the
court. *** Instead, the failure to comply with R.C. 2945.05 was the result of an error on the
part of the trial court to formally file the executed written waiver." Larkins, 73 Ohio St.3d at
661, 653 N.E.2d at 703. I, therefore, disagree with the majority's conclusion that Larkins is
limited to habeas corpus actions or that the result in Larkins was dictated by the written
waiver's presence in the trial court's case file.
Larkins, Pless does not dispute what is reflected in the official court record, that
he signed a written waiver of his right to a jury trial, affirmatively waiving his right to a jury
trial and consenting to be tried by a three-judge panel. Pless also does not dispute that the
trial judge reflected Pless's election in a journal entry. As cited at footnote 2 of the majority
opinion, the official transcript of the court details the painstaking efforts of the trial judge to
systematically make a clear record of the defendant waiving his right to a jury trial in writing
in open court after having considered it for months with input from family and the two
lawyers representing him. Through the transcript we have a record of the defendant and his
counsel confirming that the defendant had just signed the waiver that the judge was holding
in her hand as she proclaimed on the record that she would make the waiver a part of the
record. The judge then signed a journalized entry stating that the defendant had elected to be
tried before a three-judge panel. With such a record of the defendant's waiver, a missing
time-stamped form does not divest the court of jurisdiction according to the reasoning and
holding of Larkins.
I would affirm the convictions in all respects.
PFEIFER, J., concurs in the foregoing dissenting opinion.
LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!
NOW - CASE
LAW - All 50 States - Federal Courts - Try
it for FREE
Ask Your Legal Question Now.
Pennsylvania Lawyer Help Board
Find An Attorney
Created and Developed by
Copyright 1997 - 2010.
A Division of