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State v. Gillespie1/2/2002
JUDGMENT: Affirmed
On October 25, 2000, Ohio State Highway Patrol Trooper Justin Hurlbert responded to a one vehicle accident. Driver of the vehicle was appellant, Colleen Gillespie. Upon investigation, Trooper Hurlbert cited appellant with driving under the influence in violation of R.C. 4511.19(A)(1), failure to control in violation of R.C. 4511.202 and a seat belt violation in violation of R.C. 4513.263(B)(1). An administrative license suspension hearing was held on January 21, 2001. Immediately after the hearing, defense counsel made an oral demand for a jury trial/continuance. The trial court denied the request and proceeded to conduct a bench trial. By journal entry filed January 22, 2001, the trial court found appellant guilty as charged and sentenced her to one hundred-eighty days in jail, one hundred sixty-five days suspended. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
I. THE APPELLANT WAS DENIED DUE PROCESS OF LAW AND THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HER BY BOTH THE UNITED STATES AND THE OHIO CONSTITUTIONS, WHEN TRIAL COUNSEL FAILED TO REQUEST A JURY TRIAL.
I.
Appellant claims she was denied the effective assistance of trial counsel. Specifically, appellant claims her trial counsel was deficient in failing to timely file for a jury trial, and said failure substantially prejudiced the outcome of the case. We disagree. The standard this issue must be measured against is set out in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari denied (1990), 497 U.S. 1011. Appellant must establish the following: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle , 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.
The oral demand for a jury trial was made on the very day of the scheduled trial date, January 21, 2001, which had been set by entry filed December 18, 2000. The offenses were committed on October 25, 2000. Crim.R. 32(A) provides for the right to a jury trial only in serious offenses: In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not 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.
The offenses charged herein are "petty" offenses (penalty of six months incarceration or less). See, R.C. 4511.99(A)(1) and (I) and R.C. 4513.99. Therefore, the right to a jury trial was not mandatory, but was available on demand. The demand did not conform with any of the provisions of Crim.R. 23(A) ("in writing and filed with the clerk of
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