¶ 1 I dissent to the Court's opinion, which uses vague substantive due process theories to grant the defendant relief beyond that provided by Oklahoma's Constitution, statutes, and case law. Said relief should be unavailable to the defendant due to the fact that he clearly waived the right to a jury trial.
¶ 2 The role of an appellate court and its judges is to adjudicate the propositions of error presented based on the record developed at the trial court and through the attorneys of record. In this particular case the single proposition of error raised on appeal was "Delinquent, D.M.H., was denied his constitutional and statutory right to a jury trial", nothing more, nothing less. Any appellate authority we exercise is therefore confined to that question or necessarily derived from it. Like cross-examination, the Court's opinion goes beyond the scope of the question raised.
¶ 3 The statute upon which this proposition was predicated is 10 O.S. 2001, § 7303-4.1[10-7303-4.1], which reads as follows:
In adjudicatory hearings to determine if a child is delinquent or in need of supervision, any person entitled to service of summons or the state shall have the right to demand a trial by jury, which shall be granted as in other cases, unless waived, or the judge on the judge's own motion may call a jury to try any such case. Such jury shall consist of six persons.
(emphasis added) The language of the statute is clear and plain to anyone, lawyer or layperson, who reads it: one must demand a jury trial in order to receive one. The reason is simple. InMcKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976,1986, 29 L.Ed.2d 647 (1971) (plurality opinion), the U.S. Supreme Court held, "we conclude that trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement".
¶ 4 Likewise, this Court has previously held that the Oklahoma Constitution does not provide a separate constitutional right to a jury trial in these matters; therefore the statute is the sole authority, which by its very language requires a demand be made.See Ex Parte Hollowell, 182 P.2d 771, 84 Okla.Crim. 355, 362 (rejecting a claim that a juvenile's state constitutional rights had been deprived when juvenile received no jury trial and waived that right by failing to demand one). As we have previously stated in unpublished cases, "Under the terms of this statute, a juvenile must first make a demand for a jury trial. As the record in Appellant's matter does not show Appellant ever demanded a trial by jury, it is unnecessary that the record reflect that a jury was waived."
¶ 5 The same is true in this case. In fact, during oral argument Appellant's counsel confessed he had discussed the right to jury trial with his client prior to the commencement of the non-jury trial. So the statutory right to demand that forum was known both to Appellant and counsel. Counsel also admitted he had misunderstood Appellant and thought he said he had already waived his right to jury trial and that was the reason he did not object to the proceedings. So, the truth is there was knowledge of the right, counsel did discuss the issue with his client, but an error of understanding was made and counsel failed to object, request a continuance to further discuss the matter with his client, or demand a jury trial at that time. As to the proposition of error raised, it must be denied due to the fact Appellant was not denied any rights due to him.
¶ 6 Now, if there had been a proposition of error relating to ineffective assistance of counsel for failure to fully consult with his client, the question might be closer. But, the fact remains no demand was made and there was knowledge of the statutory right. It is a rare case indeed when a defendant is granted relief when he completely fails to make a record of any type of objection and his counsel admits he has discussed the right with his client. This is the very reason the statutes relating to juvenile proceedings require that the juvenile and his/her parent or guardian be advised they have a right to the assistance of an attorney. The attorney, as an officer of the court, performs a vital function in these proceedings to ensure juvenile and parents/guardians are fully advised of their rights and the nature of the proceedings. To quote a now famous phrase, the attorney is *Page 1059 not just a "potted palm". Courts must be able to rely on the services provided to clients by attorneys and should not denigrate that role by presuming them not competent.
¶ 7 If the Court had remained with the single issue presented and the confession at oral argument by Appellant's counsel, this case would have had a swift and simple disposition. However, going outside the proposition of error, the Court viewed it necessary to delve into issues not raised on appeal and disregard the rule that this Court is bound by the trial court's findings of fact and reviews only for an abuse of discretion. It is totally outside the scope of the appeal presented to inquire into the nature of the facts of the case, the proper charges to bring, and the appropriateness of the disposition order. I understand there are different views as to the role of a judge. However, if courts are to be respected we must exercise the discipline necessary to restrict ourselves to the issues raised on appeal, adjudicate those issues, and not seek to reach out and touch every issue we would have raised if we had been the appellate lawyer. It appears that is what is being done here and based on this failure I must dissent.1