Jesse Douglas Stein v The State of Oklahoma
M 2009-1064
Filed: Nov. 9, 2010
Not for Publication
Prevailing Party: Jesse Douglas Stein
Summary
# Jesse Douglas Stein appealed his conviction for Domestic Abuse - Assault and Battery. Conviction and sentence reversed for a new trial. Judge Cawthon dissented.
Decision
The Judgment and Sentence is REVERSED and the matter is REMANDED for a NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the filing of this decision.
Issues
- Was there a competent, knowing, and intelligent waiver of the right to a jury trial?
- Did the appellate record sufficiently demonstrate the waiver of a jury trial?
- Was the Judgment and Sentence correct, and did the error necessitate a reversal?
Findings
- the court erred in failing to ensure a competent, knowing, and intelligent waiver of the right to a jury trial
- the Judgment and Sentence is reversed and the matter is remanded for a new trial
M 2009-1064
Nov. 9, 2010
Jesse Douglas Stein
Appellantv
The State of Oklahoma
Appellee
v
The State of Oklahoma
Appellee
SUMMARY OPINION
SMITH, JUDGE: Appellant, Jesse Douglas Stein, was charged June 15, 2009, in the District Court of Pottawatomie County, Case No. CM-2009-398, with Domestic Abuse- Assault and Battery pursuant to 21 O.S. § 644(C), a misdemeanor. Following a non-jury trial before the Honorable David Cawthon, Special Judge, Appellant was found guilty and sentenced to one year suspended except for five days and a $300.00 fine. Appellant appeals from the Judgment and Sentence imposed.
In Appellant’s first proposition of error he argues that the appellate record does not contain a waiver of a jury trial. Both parties agree that the record is silent as to whether any waiver was knowingly and intelligently waived. On July 14, 2010, the State filed a motion to supplement the record on appeal with affidavits from Judge Cawthon, the trial judge, the Assistant District Attorney and from Appellant’s trial counsel. The motion to supplement is herewith GRANTED. However, we find the affidavits insufficient to show Appellant made a competent, knowing and intelligent waiver. Valega v. City of Oklahoma City, 1988 OK CR 101, IT 5, 755 P.2d 118, 119, sets forth that an accused may waive his constitutional right to a jury trial but only if there is a clear showing that such waiver was competently, knowingly and intelligently given and waiver of a fundamental right cannot be presumed from a silent record. Valega directs that it is incumbent upon the trial court to make a record of a waiver of a fundamental right and that all doubts concerning the waiver must be resolved in the accused’s favor. Therefore, based upon Appellant’s first proposition of error we find it necessary to reverse the Judgment and Sentence imposed by the District Court and remand the matter for a new trial.
Finding merit to Appellant’s first proposition of error, we do not find it necessary to address Appellant’s second proposition of error. As for Appellant’s third proposition of error, the Court notes that the Judgment and Sentence is incorrect but reversal makes correction of the Judgment and Sentences moot.
DECISION
The Judgment and Sentence is REVERSED and the matter is REMANDED for a NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the filing of this decision.
Footnotes:
- Valega v. City of Oklahoma City, 1988 OK CR 101, IT 5, 755 P.2d 118, 119
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010)
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 644 - Domestic Abuse - Assault and Battery
- Okla. Stat. tit. 22 § 3.15 - Mandate
- Okla. Stat. tit. 21 § 701.8 - Waiver of Rights
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
No US Code citations found.
Other citations:
No other rule citations found.
Case citations:
- Valega v. City of Oklahoma City, 1988 OK CR 101, I 5, 755 P.2d 118, 119