Ballard v. State

• Decision Date: 13 January 2022
• Docket Number: S-21-0012
• Citation: 2022 WY 7
• Court: Wyoming Supreme Court
• Parties: HARRY LEE BALLARD, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

2022 WY 7

HARRY LEE BALLARD, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0012

Supreme Court of Wyoming

January 13, 2022

Appeal from the District Court of Crook County The Honorable John R. Perry, Judge.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, Wyoming State Public Defender, Kirk A. Morgan, Chief Appellate Counsel, H. Michael Bennett, Senior Assistant Public Defender.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Senior Assistant Attorney General.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ. BOOMGAARDEN, J., delivers the opinion of the Court; DAVIS, J., files a specially concurring opinion.

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BOOMGAARDEN, JUSTICE.

[¶1] After a bench trial, the district court found Harry Ballard guilty of four felonies. On appeal Mr. Ballard contends the court denied him his fundamental right to a jury trial by failing to ensure his waiver complied with W.R.Cr.P. 23(a) and was knowing, intelligent, and voluntary. We affirm.

ISSUE

[¶2] Did Mr. Ballard validly waive his right to a jury trial?

FACTS

[¶3] The State charged Mr. Ballard with one count of attempted second degree sexual abuse of a minor (Count I) and three counts of third degree sexual abuse of a minor (Counts II-IV) in August 2019. The facts underlying those charges are not relevant to this appeal.

[¶4] Mr. Ballard was twice advised of his constitutional right to a jury trial before he pleaded not guilty to the charges. In circuit court, he received a document entitled "Statement of Your Constitutional Rights," which explained, in relevant part, that he had the right to have his case tried by a jury. It further explained that he could waive his right to a jury trial and instead have the court decide his case if he did so in writing, with the court's approval and the State's consent. Mr. Ballard signed the document, acknowledging that he read and understood his right to a jury trial. Then, at arraignment, the district court similarly advised him: "You're entitled to have a speedy and public jury trial. With consent of the State, you may waive your right to a jury and be tried by a judge alone."

[¶5] Mr. Ballard's case was initially scheduled for jury trial in February 2020, but had to be rescheduled several times for reasons including the COVID-19 pandemic.^[1] In June 2020, the court issued a notice setting the case for jury trial in August, followed by an amended notice setting the case for bench trial on July 8.

[¶6] The case proceeded to bench trial as scheduled without any mention in the record that Mr. Ballard had waived his right to a jury trial. After finding Mr. Ballard guilty of the charged crimes, the court merged Counts I and II for sentencing purposes and imposed three consecutive eight to fifteen-year sentences.

[¶7] Mr. Ballard appealed and then filed a W.R.A.P. 21 motion for a new trial based on ineffective assistance of trial counsel.^[2] Pertinent to this appeal, he argued trial counsel

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failed to protect his right to a jury trial. He asserted the record nowhere reflected that he waived his right to a jury trial in writing; nor did it reflect that the court approved or the State consented to any waiver. We stayed appellate briefing pending resolution of the motion.

[¶8] During a scheduling conference on the W.R.A.P. 21 motion, the district court noted there might be emails about Mr. Ballard's jury trial waiver that simply did not make it into the record. The court thus asked the prosecutor to search her records.

[¶9] The prosecutor then supplemented the record with emails between trial counsel, the court's judicial assistant, and the prosecutor in June 2020, around the same time the court issued notices setting the case for jury trial in August and then bench trial in July. The emails reflected that, on June 3, trial counsel sent the court's judicial assistant and the prosecutor an email stating: "I have broached the possibility of doing a bench trial in the above referenced matter both with [Mr. Ballard] and [the prosecutor]. I think this is a real possibility. Hypothetically speaking, if that is the case, how much earlier could we get a trial date?" The court's judicial assistant informed the parties that July 8 was available.

[¶10] On June 4, trial counsel sent the court's judicial assistant and the prosecutor an email stating: "All - Harry [Ballard] has agreed to waive a jury trial and be tried before [the court]." The prosecutor responded: "July 8 works for the State and the State consents to a bench trial as well." The court's judicial assistant informed the parties that she would issue an amended trial notice.

[¶11] After the State supplemented the record with the emails, Mr. Ballard moved to withdraw his W.R.A.P. 21 motion, explaining that appellate counsel had reviewed information previously unavailable to him and no longer believed he had a good faith basis for the motion. The district court granted Mr. Ballard's request and returned the matter to this Court for further proceedings.

DISCUSSION

[¶12] On appeal Mr. Ballard shifts his focus from trial counsel to the district court, arguing the court failed to ensure his jury trial waiver complied with W.R.Cr.P. 23(a) and was knowing, intelligent, and voluntary. Inexplicably, he does not mention the June 2020 emails. His argument is based on the record as it existed before the emails were added. The State requests that we summarily affirm on that basis. In the alternative, it maintains that Mr. Ballard validly waived his right to a jury trial. We address the issue on its merits given its constitutional implications.

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[¶13] We review Mr. Ballard's jury trial waiver challenge de novo. See Robbins v. State, 635 P.2d 781 (Wyo. 1981); Van Riper v. State, 882 P.2d 230, 236 (Wyo. 1994); see also United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995). Mr. Ballard has the burden to show his waiver was inadequate. See Robbins, 635 P.2d at 785.

[¶14] A criminal defendant may waive his constitutional right to a jury trial. Id. at 783 (discussing Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), overruled on other grounds by Williams v. Florida, 399 U.S. 78, 92, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)). The precise circumstances in which a defendant may do so vary somewhat from jurisdiction to jurisdiction. See 6 Wayne R. LaFave, Criminal Procedure § 22.1(h) (4th ed.), Westlaw (database updated Nov. 2021) ("Only a minority of states give the defendant an unconditional right to trial without a jury; elsewhere the defendant must also obtain the consent of the court, the consent of the prosecution, or both. In the federal system the defendant may waive jury trial only if 'the government consents' and 'the court approves.'" (footnotes omitted)).

[¶15] In Wyoming, there are four requirements for a valid jury trial waiver. The first three stem from W.R.Cr.P. 23(a), which states:

Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial with the approval of the court and the consent of the state. A

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