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ORIGINAL FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA * 1036971915 AUG 1 0 2017 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MARTY SPENCE DUNCAN, ) ) NOT FOR PUBLICATION Appellant, ) vs. ) No. M-2016-108 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION LEWIS, VICE PRESIDING JUDGE: The Appellant, Marty Spence Duncan, appeals to this Court appeals from his misdemeanor Judgment and Sentence entered after a non-jury trial before the Honorable Jennifer H. McBee, Special Judge, in Case No. CM-2015-298 in the District Court of LeFlore County. Appellant was convicted of Count 1: Domestic Abuse – Assault and Battery; and Count 2: Assault. He was sentenced to a term of one year on Count 1 with credit for time served, and to a term of thirty days on Count 2, with both sentences suspended pursuant to rules and conditions of probation. In Proposition I, Appellant claims that this appeal record is wholly inadequate to show that Appellant actually waived his right to a jury trial, and thus this Court must reverse his Judgment and Sentence and remand for a new trial. The State concedes that the record in this appeal is silent as to any waiver by Appellant of his right to a jury trial. ANALYSIS The right of trial by jury shall be and remain inviolate, except in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Okla. Const. art. II, § 19. The crime of Domestic Abuse – Assault and Battery is punishable by imprisonment in the county jail for not more than one (1) year, or by a fine not exceeding Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment. 21 O.S.2011, § 644(C). Appellant was thus entitled to a jury trial. 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. Valega v. City of Oklahoma City, 1988 OK CR 101, IT 5, 755 P.2d 118, 119. A valid waiver of a jury trial requires the consent of the accused, the prosecutor and the trial judge. Id. A record showing an intelligent, competent and knowing waiver of a jury trial is mandatory and anything less is not a waiver. Id. Both the State and Appellant agree that the record in this case is silent and does not reflect Appellant’s waiver of his right to a jury trial. The Judgment and Sentence in this case states that Appellant has “[b]een found guilty by Judge after waiver of jury trial”, but this appeal record does not contain Appellant’s waiver of his right to a jury trial. Therefore, Appellant’s Judgment and Sentence must be reversed and remanded for a new trial. Appellant’s other propositions of error in this appeal are rendered moot by the decision on his first proposition and need not be addressed. DECISION 2 The Judgment and Sentence of the District Court of LeFlore County in Case No. CM-2015-298 is REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY THE HONORABLE JENNIFER H. MCBEE, SPECIAL JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL ROB COWAN SARAH MACNIVEN Attorney at Law Appellate Defense Counsel P.O. Box 41 P.O. Box 926 Poteau, OK 74953 Norman, OK 73070 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT MARYANN GODSBY E. SCOTT PRUITT Assistant District Attorney Attorney General of Oklahoma LeFlore County Courthouse JENNIFER B. WELCH 100 S. Broadway St., Room 300 Assistant Attorney General P.O. Box 880 313 N.E. 21 st Street Poteau, OK 74953 Oklahoma City, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LEWIS, V.P.J. LUMPKIN, P.J.: Concurs A. JOHNSON, J.: Not Participating HUDSON, J.: Concurs RC/F 3

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