{¶ 48} I respectfully dissent from the majority's well-written opinion because I believe, under the circumstances of this case, the requirements under R.C. 2945.05 for a valid jury waiver have been met.
{¶ 49} Unless a jury waiver is in writing, signed by the defendant, filed in the criminal action and made a part of the record, a trial court lacks jurisdiction to try the defendant without a jury.52 Although it is undisputed that all of these *Page 568 requirements were met in this case, the majority maintains that Ohio law requires the trial court to engage in a colloquy with the defendant before the jury waiver can be considered valid.
{¶ 50} In support of its argument that a limited colloquy is necessary to satisfy the "open court" requirement for a valid jury waiver, the majority emphasizes that the colloquy will ensure that the jury waiver is made knowingly, intelligently, and voluntarily. While I see the benefit in having a colloquy to ensure that the waiver of the right to a jury trial is voluntary, it is simply not required under Ohio law. In State v. Bays,53 the Ohio Supreme Court held that "a written [jury] waiver is presumptively voluntary, knowing, and intelligent."54 The Bays court further held that "if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made."55
{¶ 51} Here, the record demonstrates that Lomax signed a written jury waiver and it was made a part of the record. Lomax does not contest the voluntary nature of his written waiver and, thus, does not demonstrate that his waiver was not "freely and intelligently made." Accordingly, underBays, Lomax's jury waiver is valid.
{¶ 52} The trial court stated on the record, prior to the start of the bench trial, that Lomax had submitted a jury waiver. Lomax did not object to this statement. In light of the fact that Lomax is not contesting the voluntary nature of his written waiver, I would hold that the trial court's uncontested acknowledgment on the record that Lomax had submitted a jury waiver satisfied the "open court" requirement under R.C.2945.05. Accordingly, I would hold that the trial court had jurisdiction to conduct a bench trial.
52 State v. Pless (1996), 74 Ohio St.3d 333,658 N.E.2d 766.
53 State v. Bays (1999),87 Ohio St.3d 15, 716 N.E.2d 1126.
54 Id. at 19, 716 N.E.2d 1126.
55 Id. *Page 569