Marty Spence Duncan v The State Of Oklahoma
M-2016-108
Filed: Aug. 10, 2017
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Marty Spence Duncan appealed his conviction for Domestic Abuse - Assault and Battery and Assault. His conviction was for one year for the first charge and thirty days for the second charge, but both sentences were suspended, meaning he wouldn't have to serve time if he followed certain rules. Duncan's main argument was that the court record didn't show he gave up his right to a jury trial, which he needed to do to have a non-jury trial. Both Duncan and the State agreed there was no proof he waived that right, which is very important in criminal cases. The court decided that since there was no clear record of Duncan waiving his right to a jury trial, his conviction must be overturned and a new trial ordered. The Judgment and Sentence from the lower court were reversed, and Duncan will get a new trial because of this issue. Judge Lumpkin agreed with this decision, while Judge Johnson did not participate.
Decision
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.
Issues
- Was there a valid waiver of Appellant's right to a jury trial?
- Did the record adequately show that Appellant competently, knowingly, and intelligently waived his right to a jury trial?
Findings
- The court erred in affirming the judgment due to the lack of a valid waiver for the right to a jury trial.
M-2016-108
Aug. 10, 2017
Marty Spence Duncan
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LEWIS, VICE PRESIDING JUDGE: The Appellant, Marty Spence Duncan, appeals to this Court 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
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. 21st 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
Footnotes:
- Okla. Const. art. II, § 19.
- 21 O.S.2011, § 644(C).
- 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. (2017).
Oklahoma Statutes citations:
- Okla. Const. art. II § 19 - Right to jury trial
- Okla. Stat. tit. 21 § 644(C) (2011) - Crime of Domestic Abuse - Assault and Battery
- Okla. Stat. tit. 22 § 3.15 (2017) - Rules of the Oklahoma Court of Criminal Appeals
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