2000 COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73274 CITY OF MAPLE HEIGHTS : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : JOHN GOAD : OPINION : Defendant-Appellant : Date of Announcement of Decision: OCTOBER 15, 1998 Character of Proceeding: Criminal appeal from Garfield Hts. Municipal Court Case No. 97-CRB-5379 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: MICHAEL G. CIARAVINO, ESQ. Crown Centre - Suite 600 5005 Rockside Road Independence, Ohio 44131-2155 For Defendant-Appellant: RICHARD AGOPIAN, ESQ. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, J.: Defendant-appellant John Goad appeals from his conviction for criminal damaging following a bench trial in the Garfield Heights Municipal Court. Defendant claims the court was without jurisdiction to try defendant because he did not execute a written jury waiver and it failed to advise him of his constitutional rights prior to trial. We find no merit and affirm. On July 10, 1997, the City of Maple Heights charged defendant with criminal damaging, a second degree misdemeanor, pursuant to Section 642.10(A)(1) of the Codified Ordinances of the City of Maple Heights for knowingly causing physical harm to the property of another. A second degree misdemeanor is punishable by a fine of up to $750 and 90 days in jail (R.C. 2929.21(B)(2), (C)(2)) and is considered a petty offense (Crim.R. 2). On August 5, 1997, defendant appeared in the Garfield Heights Municipal Court with counsel, James McDonnell, who filed a motion for entry of appearance, entered a not guilty plea and waived the right to a speedy trial on behalf of defendant. The record reveals defendant did not demand a jury trial at that time by circling YES on the court form stating: I hereby demand a trial by a jury. On September 5, 1997, Attorney McDonnell filed a motion to withdraw as counsel of record. The case proceeded to a bench trial on September 22, 1997. The transcript of the trial and the court docket reveal that defendant was represented by Attorney Chuck Stewart. The ex- girlfriend testified on behalf of the State. Defendant, his wife -3- and brother-in-law testified on defendant's behalf. After considering all of the evidence, the court found defendant guilty of criminal damaging and fined him $750, with $250 suspended, and sentenced him to 90 days in jail, with 60 days suspended. Furthermore, defendant was placed on inactive probation for two years and ordered to make restitution in the amount of $1,100 by January 31, 1997. This timely appeal followed. We will address defendant's assignments of error in the order presented. I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO TRY THE APPELLANT SINCE THE APPELLANT DID NOT EXECUTE A WRITTEN JURY WAIVER WHICH WAS FILED IN THE CASE, AND MADE A PART OF THE RECORD. We find no evidence or indication in the record that defendant ever made a timely jury demand. In Ohio, a defendant in a misdemeanor case involving a petty offense is not entitled to a jury trial unless he makes a demand therefore in writing within a specified time before trial. Crim.R. 23(A); State v. Tate (1979), 59 Ohio St.2d 50, 52. R.C. 1901.24 and Crim.R. 23 are relevant herein as they describe the manner in obtaining a jury trial before a municipal court in a petty offense case. R.C. 1901.24 provides in pertinent part as follows: (A) A jury trial in a municipal court shall be demanded in the manner prescribed in the Rules of Civil Procedure or the Rules of Criminal Procedure. The number of persons composing a jury and the verdicts of jurors shall be governed by those rules. Crim.R. 23(A) provides in pertinent part: In petty offense cases, where there is a right of jury trial, the defendant shall be -4- tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court no 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. Such statute and rule have been upheld as constitutional as they merely regulate the method of making the demand and do not deny a party his right to a jury trial. Harry Goldberg Co. v. Emerman (1932), 125 Ohio St. 238, paragraph one of syllabus. In State v. Fish (1995), 104 Ohio App.3d 236, the court discussed the distinction between a right to a jury trial in a serious versus a petty offense case: In a serious offense case, the right to a jury is automatic, requiring no act by the defendant to demand it, and requiring an affirmative written document to waive it. However, where, as here, the charge involved is a petty offense (one with a penalty of six months' incarceration or less), a defendant must file a written jury demand to avoid a waiver under Crim.R. 23(A). Id. at 238. Crim.R. 2 defines a serious offense and a petty offense as follows: (C) Serious offense means any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months. (D) Petty offense means a misdemeanor other than serious offense. The instant case involves a petty offense since the defendant is punishable with incarceration of 90 days or less if convicted of the criminal damaging. -5- Therefore, a failure to demand a jury trial in a petty offense case is a waiver of a right to a jury trial. Crim.R. 23(A); City of Dayton v. Drake (1990), 69 Ohio App.3d 180, 183. In the instant case, defendant was represented by Attorney McDonnell on August 5, 1997, when he appeared at his arraignment and pled not guilty and waived his right to a speedy trial. Defendant did not demand a jury trial at that arraignment or at any other time before trial. Since defendant failed to exercise his right to a jury trial by appropriate demand, it was waived. Mentor v. Giordano (1967), 9 Ohio St.2d 140, 144; City of Dayton v. Drake, supra. Moreover, since defendant never demanded a jury trial, he was not required to execute a written waiver of his right to a trial by jury as mandated by R.C. 2945.05. See State v. Fish, supra. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN FAILING TO ADVISE THE APPELLANT OF HIS RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND OHIO CRIM.R. 11(E). On August 5, 1997, defendant pled not guilty to criminal damaging and waived his right to a speedy trial. The matter was subsequently scheduled for a bench trial on Septem c2d ber 22, 1997. Although there is some confusion in the clerk's record as to whether a trial was had or defendant withdrew his not guilty plea and pled no contest to the charges, the transcript of the proceedings leaves no doubt that the case proceeded to a trial before the court. According to the transcript, defendant was represented by Attorney Chuck Stewart. Defendant's attorney, Mr. Stewart, waived an opening argument and called the defendant to -6- testify on his own behalf. He also called several witnesses, Chris Goad, defendant's wife and Jim Joppeck, defendant's brother-in-law, to testify on defendant's own behalf. Moreover, he cross-examined the complaining witness, Courtney DeMarco, regarding the alleged criminal damaging. Finally, defense counsel gave a closing argument and argued on behalf of his client regarding sentencing. Defendant's discussion about his right to counsel is moot since defendant exercised his right to counsel and was represented by Chuck Stewart at trial on September 22, 1997. Moreover, defendant's allegation that he should have been advised regarding the right to confront his accusers and the right to compulsory process is also meaningless. Pursuant to the court's docket, subpoenas were issued for Courtney DeMarco, Kristine Goad, James Joepeck, Patrolman Blaha and Robert Craig. Furthermore, Courtney DeMarco, the State's sole witness, was cross-examined by defendant's counsel. Thus, defendant derived the benefit of compulsory process and the right to confront his accusers. Therefore, he neither waived nor was he deprived of these rights. Defendant's Assignment of Error II is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Garfield Hts. Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, A.J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER 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 . 0