Argued and Submitted March 19, 2014.
Marion County Circuit Court. 09C41316. Albin W. Norblad, Judge.
Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[262 Or.App. 365] HASELTON, C. J.
Defendant appeals a judgment of conviction, contending that, on remand from this court, the trial court erred in denying her request for a jury trial. For the reasons explained below, we agree with defendant. Accordingly, we reverse and remand this case for a new trial before a jury.
In 2009, defendant was charged with various offenses, including delivery of methamphetamine, possession of methamphetamine, and first-degree child neglect. She executed a written waiver of jury trial. Following a bench trial, defendant was convicted of those three offenses. Defendant appealed the resulting judgment, contending that the trial court erred in denying her the right to make a closing argument. State v. Barajas, 247 Or.App. 247, 250, 268 P.3d 732 (2011) ( Barajas I ). Relying on State v. Lovins, 177 Or.App. 534, 538, 33 P.3d 1060 (2001), we reversed and remanded, holding that " the 'trial itself was affected in this case because the court denied one of its required elements'" and that " that denial substantially affected defendant's rights." Barajas I, 247 Or.App. at 253 (quoting Lovins, 177 Or.App. at 538).
On remand, defendant requested a jury trial. The trial court--indeed, the same trial judge who had presided over defendant's original bench trial--denied defendant's request, allowing her only to make a closing argument. The court again convicted defendant of the three offenses described above.
On appeal, defendant contends that the trial court erred in denying her request for a jury trial for two interrelated reasons. First, defendant asserts that, " [a]lthough the tag line to Barajas simply read 'reversed and remanded,' this court's citation to Lovins indicates that defendant's case was reversed and remanded for a new trial." Second, relying on case law from other jurisdictions, defendant contends that her " waiver of a jury at the first trial [did] not affect the right to demand a jury at the second trial where
the entire case [had been] reversed on appeal."
The state remonstrates that, because our tag line in Barajas I did not explicitly require a new trial, the trial court [262 Or.App. 366] had broad discretion on remand and that limiting defendant to offering closing argument only was within the permissible range of that discretion. With respect to defendant's asserted entitlement to a jury trial, the state contends that, " [g]iven that defendant had voluntarily and knowingly consented to the trial court serving as ...