and Submitted December 19, 2018
County Circuit Court 16CR34310; Richard L. Barron, Judge.
J. Kimbell, Deputy Public Defender, argued the cause for
appellant. On the opening brief were Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, and Laura E. Coffin,
Deputy Public Defender, Offce of Public Defense Services.
Also on the supplemental brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section.
G. Howe, Assistant Attorney General, argued the cause for
respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals from a judgment of conviction for second-degree
burglary, first-degree theft, and second-degree criminal
mischief. Defendant assigns error to the trial court's
denial of his request to waive a jury trial, which defendant
raised on the morning of trial before the jury was empaneled.
Defendant argues that the trial court abused its discretion
by misapplying the relevant factors that a trial court is to
consider when deciding whether to consent to a jury trial
waiver under Article I, section 11, of the Oregon
Constitution. In response, the state first argues that
defendant failed to preserve the error for appellate review
because defendant did not object or make any further legal
argument after the trial court denied his request to waive
the jury. In any event, the state argues, the trial
court's denial of defendant's request to waive a jury
trial was a proper exercise of the trial court's
discretion. Held: First, the error was sufficiently
preserved for appellate review. The policy considerations
that [298 Or.App. 228] underlie the preservation requirement
were met, and, once the trial court ruled, defendant was not
obligated to renew his contentions in order to preserve them
for the purposes of appeal. Second, the trial court abused
its discretion in denying defendant's requested waiver.
The paramount consideration should have been whether a bench
trial would fully protect defendant's rights. The trial
court failed to adequately consider that issue and whether
defendant was knowingly and voluntarily exercising his right
under Article I, section 11, to waive a jury trial.
Or.App. 229]SHORR, J.
appeals from a judgment of conviction for three counts of
second-degree burglary, two counts of first-degree theft, and
one count of second-degree criminal mischief, assigning error
to the trial court's denial of his request to waive a
jury trial. For the reasons explained below, we
reverse and remand.
underlying facts are undisputed. Defendant was arrested and
arraigned on charges of burglary, theft, and criminal
mischief. Defendant was then conditionally released from
custody. After he failed to appear at a subsequent hearing in
this case, defendant was arrested on new charges. Defendant
then personally appeared before the trial court in this case
on March 17, 2017. During a plea hearing that occurred a few
days later, defendant requested a jury trial. Trial was
scheduled for May 2, 2017, with a trial readiness hearing
scheduled for the preceding day. When defendant failed to
appear at the trial readiness hearing on May 1, the court
cancelled the jury trial. Later in the day on May 1,
defendant was arrested on different charges, and the jury
trial was reinstated for the following day.
scheduled day of trial, May 2, during discussion of pretrial
matters with the court and before the jury was empaneled,
defendant's counsel requested to waive defendant's
right to a jury and asked that the case be tried to the
court. Defendant was in custody and not present in the
courtroom for that discussion. The prosecutor expressly took
no position on defendant's request to waive a jury trial.
The trial court denied defendant's request, explaining
that it was doing so for three reasons. First, the trial
court expressed concern about the "timing" of the
request, coming on the morning of trial. Second, the court
expressed an economic concern for the court having already
incurred the cost for the jurors, stating that it would be
"no more [298 Or.App. 230] economical" to cancel
the jury at such a late hour. Third, the court expressed a
belief that the jury would be able to fully protect
defendant's rights, noting that, unlike the court, the
jury was not aware of defendant's custody status and his
prior criminal record. To these points, the trial court
stated as follows:
"I'm aware of the cases that have come out the last
couple years. And it is a discretionary call by the Court.
"I'm not going to allow the waiver of the jury
trial. He apparently was here for the change of plea
[hearing], he requested a jury trial. We've got jurors
who are here, waiting. In fact, I brought in quite a number
of jurors here in this case.
"The timing is a concern on my part-the waiver on the-on
the morning when I have the jury already here. If I would
have known about it last night, I could have at least called
the jury off.
"The other thing that I factor in is this. I actually
have done a little work on this case in terms of looking at
the proceeding sheet, looking at the charging instrument. I
know that he's in custody. I mean, I know all those
things that a jury wouldn't know. A jury is not going to
know that he's in custody.
"I know a little bit about his background. I guess
I'm hearing now that he's got warrants outstanding,
"* * * all of this is just a concern that I, as a
neutral factfinder, I'm not so sure I-you know, I've
got that ...