COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70308 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRED WARD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OCTOBER 17, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-257305 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. ANTHONY A. COX, ESQ. Cuyahoga County Prosecutor P.O. Box 6002 8th Floor, Justice Center Hudson, OH 44236 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. The dispositive issue raised in this appeal is whether the trial court had jurisdiction to try defendant Fred Ward, whose signed jury waiver was not filed with the clerk of courts. Under authority of State v. Pless (1996), 74 Ohio St.3d 333, we find the trial court lacked jurisdiction to conduct trial and reverse. The grand jury charged defendant with two counts of felonious assault and one count of carrying a concealed weapon. Defendant appeared on the record before the court and knowingly, intelligently and voluntarily waived his right to a jury trial. He then signed the waiver form required by R.C. 2945.05. That waiver, although contained in the record, was not filed with the clerk of the court. Paragraph one of the syllabus to Pless states that when the defendant elects to waive the right to a jury trial, "*** R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made a part of the record thereof." We recently addressed this precise issue in State v. Coleman (May 9, 1996), Cuyahoga App. No. 69202, unreported, stating, "[w]e have no discretion in this matter. We are obliged to follow the Supreme Court's decision in Pless which mandates strict compliance with R.C. 2945.05." Id., unreported at 15. Although the state does not contest the applicability of Pless, it makes several arguments as to why Pless should not control. - 3 - First, the state argues that Pless failed to consider the import of R.C. 2901.04(B), which requires the courts to construe the sections of the Revised Code "so as to effect the fair, impartial, speedy, and sure administration of justice." This argument has some force because the staff notes to R.C. 2901.04 expressly state that the criminal statutes relating to procedure must be construed to promote justice for both the accused and the state. However, we must nevertheless presume the supreme court did, in fact, consider the import of R.C. 2901.04 when reaching its decision, despite its failure to make a specific citation to that code section. The court was well aware that its decision "might not be well received." Under those circumstances, it seems unlikely the supreme court would not consider all relevant statutory material when reaching its decision. The state next argues the waiver should be considered "filed" because despite being time-stamped, it is contained in the record on appeal. In State v. Harris (1991), 73 Ohio App.3d 57, 62, the court stated, "*** papers pertaining to the trial of a case can exist in one of only two ways: first, by an actual filing of the paper with the clerk of the trial court and, second, by admission into the record during the course of a trial which then makes the paper an exhibit to the transcript of proceedings." Neither event occurred in this case. The clerk's endorsement of the fact of filing and the date of the filing is evidence of the filing. Ins. Co. of N. - 4 - Am. v. Reese Refrig. (1993), 89 Ohio App.3d 787, 790-791. Because the jury waiver form did not contain a time stamp from the clerk of courts, the waiver is not considered "filed" for purposes of R.C. 2945.05. Likewise, we must reject the state's argument that Pless only applies to jury waivers that are not a part of the record in any form. It is true that the jury waiver involved in Pless did not appear at all in the papers transmitted on appeal. However, we must follow the law set forth in the syllabus and that law broadly states a jury waiver must be "filed in the criminal action and made a part of the record." Concededly, the waiver was not filed in the criminal action, so we cannot deviate from the Pless syllabus to reach a contrary result. Finally, the state argues Pless failed to take into consideration the interplay between R.C. 2945.05 and Crim.R. 23, which makes no specific requirement that a jury waiver be filed with the court. We considered and rejected this precise argument in Coleman, noting the supreme court itself has held "there is no conflict between Crim.R. 23(A) and R.C. 2945.05." Coleman, unreported at 9, quoting State v. Tate (1979), 59 Ohio St.2d 50, 53-54. Accordingly, the first assignment of error is sustained. Reversed and remanded. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J. O'DONNELL, J., CONCUR See Concurring Opinion, O'Donnell, J., attached. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70308 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : OPINION vs. : : : FRED WARD : : : Defendant-Appellant : : DATE: OCTOBER 17, 1996 O'DONNELL, J., CONCURRING: I concur with the majority opinion and agree our court is bound by the doctrine of stare decisis to follow State v. Pless (1996), 74 Ohio St.3d 333, despite my personal belief that this case raises a glaring example of emphasizing form over substance. In this case, the defendant chose to have a judge, not a jury, decide his case. He enjoyed representation by an experienced, competent defense counsel, answered questions about his consti- tutional rights posed by a skilled trial judge and evidenced his choice to waive a jury by signing his name to an official court document which is contained in the court file, the authenticity of which has never been challenged. But, because that document does - 2 - not contain a date-stamp from the clerk of the court, somehow, the appellant's constitutional right to a jury trial has been denied. Yet, with the stamp, no such denial occurs. How powerful the date- stamp must be! Courts need to be responsive to constitutional considerations .