COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70506 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARSHALL GLASS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-322080 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CAROLE R. TUROFF, ESQ. CUYAHOGA COUNTY PROSECUTOR TUROFF & LURIE BY: THOMAS A. REIN, ESQ. 20320 Fairnsleigh Road ASSISTANT COUNTY PROSECUTOR Shaker Hts., Ohio 44122 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: The trial court found appellant guilty of aggravated robbery with aggravated felony specifications and sentenced him to incarceration for eight to fifteen years. Prior to trial, appellant waived his right to a jury trial in open court. The judge questioned appellant to ascertain that the waiver was knowingly, intelligently and voluntarily executed. The court acknowledged the waiver's existence in the court's June 20, 1995 journal entry, "Defendant voluntarily and knowingly executed a defendant's waiver of jury trial." Appellant filed a timely appeal from his conviction and sentence, asserting five assignments of error. I THE TRIAL COURT WAS WITHOUT JURISDICTION TO HEAR THE CASE WHEN THE WRITTEN JURY WAIVER FORM WAS NOT FILED. Appellant argues under his first assignment of error that the trial court was without jurisdiction to hear his case. Appellant asserts that the requirements of R.C. 2945.05 were not met when the trial court accepted appellant's jury trial waiver. Appellant's argument is well taken. A recent Supreme Court decision interpreted the mandates of R.C. 2945.05 as follows: 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. - 3 - State v. Pless (1996), 74 Ohio St.3d 333, paragraph one of the syllabus. The Supreme Court in Pless analyzed the requirements of R.C. 2945.05 as they applied to direct appeals from bench trial convictions. The Court distinguished the strict standard to be applied on direct appeal from the lower standard applicable to habeas corpus petitions, which are only entitled to extraordinary relief. On direct appeal, strict compliance with the four requirements of R.C. 2945.05 must have been adhered to or no jurisdiction will be found to have existed in the trial court proceedings. Upon a finding of no jurisdiction to hear the proceedings without a jury, the conviction will be reversed and the cause remanded for a new trial. In the instant case appellant signed a jury waiver in open court, as evidenced by the transcribed proceedings. The actual jury waiver form is in the record. However, the form is not time- stamped nor in any other way indicating that the form was actually filed. We are constrained to follow Pless as we did under identical circumstances in State v. Coleman (May 9, 1996), Cuyahoga App. No. 69202, unreported, which held that: [T]he Pless decision compels us to reverse the convictions below because, in construing R.C. 2945.05, the Supreme Court has mandated that the jury waiver must be "in writing, signed by the defendant, filed in the criminal action and made a part of the record." The waiver herein was in writing, signed by the defendant and made a part of the reocrd by incorporation in the case file as a motion exhibit, but it was not "filed in the criminal action" according to the Suprme Court's interpretation in Pless. We have examined the original waiver and no time stamp or filing receipt of the clerk's - 4 - office appears thereon nor does the official docket make any reference to the waiver. State v. Coleman, supra, at 12-13. We find that the mandates of R.C. 2945.05 were not met. The trial court lacked jurisdiction to hear appellant's case without a jury. Appellant's first assignment of error is sustained. II THE TRIAL COURT VIOLATED APPELLANT MARSHALL GLASS'S RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO BE INFORMED OF THE NATURE OF THE CRIMINAL CHARGE WHEN IT ENTERED A GUILTY VERDICT TO AN OFFENSE WHICH HE HAD NOT BEEN CHARGED. III THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR NEW TRIAL BECAUSE THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED THE IN-COURT IDENTIFICATIONS WHICH WERE BASED ON PREVIOUS OUT-OF-COURT IDENTIFICATIONS OBTAINED IN A SUGGESTIVE MANNER IN VIOLATION OF MARSHALL GLASS'S RIGHTS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. IV THE VERDICT FINDING MARSHALL GLASS GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. V MARSHALL GLASS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. Because appellant's first assignment of error was dispositive of his appeal, the remaining assignments of error are rendered moot. We decline to review the merit of the remaining assignments of error. App.R. 12(A)(1)(c). - 5 - Appellant's conviction is reversed and the cause is hereby remanded for a new trial. - 6 - 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. NAHRA, J., AND PATTON, J., CONCUR ANN DYKE JUDGE 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 .