Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Smith

Court of Appeals of Oregon

October 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TODD JAMES SMITH, aka Todd Smith, Defendant-Appellant.

          Argued and Submitted August 1, 2019

          Marion County Circuit Court 16CR82663; Claudia M. Burton, Judge.

          Anna Belais, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

         Case Summary: Defendant appeals judgments of conviction for four misdemeanor crimes. On appeal, defendant contends that the trial court erred by conducting a bench trial and convicting him of the charges without a written jury waiver specific to those counts. Defendant argues that the written jury waiver he signed was ineffective for the charges for which he was convicted because, while the case number remained the same, two amended informations were fled after he signed the jury waiver that dismissed the original charge and added new charges. Defendant acknowledges that he did not preserve his claim of error, but he contends that the error is plain. The state argues that there is no plain error because defendant's signature on a written jury waiver with the same case number as that under which he was ultimately convicted gives rise to competing inferences about whether defendant intended to waive his right to a jury trial. Held: A written jury waiver is plainly only effective with respect to charges made known to the defendant at the time of the waiver. Accordingly, the trial court [300 Or.App. 273] erred when it conducted a bench trial on charges for which defendant had not executed a written jury waiver.

          [300 Or.App. 274] HADLOCK, P. J.

         Defendant appeals a judgment of conviction for two counts of stalking, one count of first-degree criminal trespass, and one count of second-degree criminal trespass.[1]Defendant contends that the trial court erred by conducting a bench trial and convicting him of the charges without a written jury waiver specific to those counts. Defendant acknowledges that he did not object at the time, but he argues on appeal that the error is plain. We agree that the trial court plainly erred in conducting a bench trial without a written jury waiver for the charges for which defendant was tried and convicted. Accordingly, we reverse and remand.

         The relevant facts are procedural and undisputed. On December 30, 2016, the state charged defendant in case number 16CR82663 with one count of second-degree criminal trespass. On June 5, 2017, defendant signed a written waiver of his right to a jury trial in that case. The waiver informed defendant that he had "the right to a jury trial on any fact *** [about] the criminal activity alleged in this case." Defendant checked the box marked "I WAIVE my right to have a jury decide whether I am guilty or not guilty of the crime(s) charged and any facts which can result in a greater sentence than is presumed." A hearing on the waiver occurred the same day. Defendant confirmed to the trial court orally that he understood he had the right to a jury and wanted to waive it.

         Seven days after the hearing, the state filed an amended information that charged defendant with harassment and second-degree disorderly conduct. The amended information was filed with the same case number under which the state had brought the original charge of second-degree criminal trespass, 16CR82663, but it did not include that charge. Defendant was arraigned on the amended information about two weeks later and, at the arraignment, told the court that he wanted a jury trial. The court assured defendant several times that he could have a jury trial if [300 Or.App. 275] he wanted one and also said, "you have previously waived jury. But you always at all times * * * have the constitutional right to have a jury try your case." Defendant indicated his understanding that, because the original charge for which he waived jury trial had been dropped and different charges added, his jury rights "will become new." Defense counsel told the court that he would discuss the matter with defendant and inform the court of how defendant wanted to proceed. No new written jury waiver was filed after that point, and the record does not include any additional information about whether defendant wished to waive his right to a jury trial on the new charges.

         In October 2017, about four months after defendant was arraigned on the amended information, the state filed a second amended information that charged defendant with two counts of stalking, one count of first-degree criminal trespass, one count of second-degree criminal trespass, and two counts of punitive contempt. One of the stalking counts was alleged to have occurred in December 2016; the remaining crimes were alleged to have occurred in August or September 2017. Like the first amended information, the second amended information was filed under case number 16CR82663 and did not include the single count of second-degree criminal trespass that had been charged in the original information. A bench trial took place in December 2017, and the court found defendant guilty on all counts charged in the second amended information.

         On appeal, defendant contends that the trial court erred by conducting a bench trial and convicting him of the charges in the second amended information in the absence of a written jury waiver associated with those charges. He bases that argument on Article I, section 11, of the Oregon Constitution, which requires jury waivers to be in writing:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *; to demand the nature and cause of the accusation against him, and to have a copy thereof; *** provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing * * *."

          [300 Or.App. 276] Defendant acknowledges that he did not preserve his claim of error in the trial below, but he argues that we can review the Article I, section 11, error because it is plain. In response, the state focuses on the undisputed fact that defendant signed a jury waiver in case number 16CR82663 in June 2017, when only the original information had been filed. Because the second amended information was filed under that same case number and defendant never moved to withdraw his earlier written jury waiver, the state contends that competing inferences arise about whether ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.