State v. Muniz, 2004 Ohio 1659 (Ohio App. 3/31/2004)

Decision Date31 March 2004
Docket NumberCourt of Appeals No. WD-03-032.,Trial Court No. 02-CR-355.
PartiesState of Ohio, Appellee, v. Martin Muniz, Appellant.
CourtOhio Court of Appeals

Raymond Fischer, Wood County Prosecuting Attorney, and Gary D. Bishop

And Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.

Jane Randall, for appellant.

DECISION AND JUDGMENT ENTRY

SINGER, J.

{¶1} This is an appeal from a judgment of conviction in the Wood County Court of Common Pleas. Because we conclude that appellant's jury waiver was valid, that appellant was not deprived of effective assistance of counsel, and that the conviction was not against the manifest weight of the evidence, we affirm.

{¶2} On September 10, 2002, Fostoria firefighters responded to a 911 call reporting a possible fire at Lot 12 in the Nyes Trailer Park in Fostoria, Ohio. Firefighters arrived on the scene approximately three minutes after receiving the call. Upon entering the mobile home, firefighters observed flames burning from a pile of sofa cushions, clothes, and other miscellaneous objects just inside the door. The mobile home was unoccupied.

{¶3} Jacqueline Navarro, owner of the mobile home, arrived shortly after the fire was extinguished and talked to the firefighters and the state fire marshal. Navarro reported to the firefighters that appellant, Martin Muniz, had threatened her and could have set the fire. The evening before, appellant had been arrested for domestic violence against Navarro, and had been released on community control.

{¶4} While Navarro was talking to the firefighters, appellant approached and started shouting and yelling at Navarro. Appellant told Navarro that the fire was God's way of punishing her. According to firefighter Stahl's testimony, appellant was "right in her face hollering that, you know, that this is what you deserve being with another Mexican man or something of that nature." Appellant also told Navarro that her brother had just beaten him up and that he was worried that her brother would kill him.

{¶5} Earlier that morning, Lola Wildman, who lived directly behind Navarro's mobile home, smelled smoke and made the 911 call to the fire department. She testified that she had been standing behind Navarro's mobile home when she saw a man coming around the corner behind [Navarro's mobile home] and asked him what was burning. The man replied, "I don't know," then quickly moved away through the mobile home lots. Wildman later identified appellant in a photo array as the man she saw the morning of the fire.

{¶6} Appellant was subsequently indicted by the Wood County Grand Jury on one count of aggravated arson, a second-degree felony pursuant to R.C. 2902.02(A)(2). Appellant pled not guilty at his arraignment on October 15, 2002. On January 31, 2003, appellant filed a waiver of jury trial form. On February 5, 2003, the matter proceeded to trial before the bench. The trial court found appellant guilty of aggravated arson, and sentenced appellant to two years imprisonment plus payment of restitution. From that judgment of conviction, appellant now brings this appeal. Appellant sets forth the following assignments of error:

{¶7} "I. The trial court erred prejudicially for want of a proper colloquy as to appellant's waiver of his right to a jury trial.

{¶8} "II. Appellant received ineffective assistance of counsel as a matter of law, where his public defender had taken a position with the prosecutors' office, where there was no colloquy about appellant's waiver of any conflict of interest.

{¶9} "III. The verdict was against the manifest weight of the evidence.

{¶10} "IV. The cumulative effect of errors during the trial and sentencing resulted in appellant being denied a fair trial."

{¶11} I.

{¶12} In his first assignment, appellant argues that the trial court's colloquy with appellant did not reveal whether appellant's waiver was knowing. Appellant submitted a signed jury waiver form to the court, and the signed waiver was properly journalized and made part of the record in this case. At the commencement of his trial before the bench, the court undertook the following colloquy with appellant:

{¶13} "THE COURT: The waiver of trial form I have in front of me is a Waiver of Trial by Jury. You still have all of the same rights with a court trial that you would have with the jury trial except for there won't be a jury of 12 of your peers deciding the case; do you understand that?

{¶14} "MR. MUNIZ: Yes, sir.

{¶15} "THE COURT: You have signed this written waiver in front of your counsel; is that right?

{¶16} "MR. MUNIZ: Yes, sir.

{¶17} "THE COURT: Yes. You have done that voluntarily; is that correct?

{¶18} "MR. MUNIZ: (Indicating).

{¶19} "THE COURT: All right."

{¶20} Appellant argues that the trial court had an affirmative duty to conduct a colloquy such as to elicit from appellant his knowledge that "the jury decision would have to be unanimous in order to convict him, or that he could participate in the selection of jurors."

{¶21} A defendant's right to be tried by a jury can be waived pursuant to R.C. 2945.05. "The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel." State v. Jells (1990), 53 Ohio St.3d 22, 26. Appellant's signed written jury waiver form was properly made part of this record, and it conforms to the dictates of R.C. 2945.05. Once R.C. 2945.05 has been satisfied, "there is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial." State v. Jells, supra, paragraph one of the syllabus.

{¶22} Signed written waivers are presumed constitutionally valid. "[A] written waiver is presumptively voluntary, knowing, and intelligent." State v. Bays (1999), 87 Ohio St.3d 15, 19, citing United States v. Sammons (C.A.6, 1990), 918 F.2d 592, 597. The Ohio Supreme Court recently extended Jells' rule to the Ohio Constitution. "Jells holds that the statute and rules require no inquiry [by the trial court], and we now hold that nor does the Constitution." State v. Thomas (2002), 97 Ohio St.3d 309, 313-314, 2002-Ohio-6624, ¶27. The United States Constitution also presumes that written waivers are voluntary, knowing and intelligent. Technical knowledge of the jury trial right is not required for a written jury waiver to be effective. See U.S. v. Sammons (C.A. 6, 1990), 918 F.2d 592, 596.

{¶23} Since appellant's signed waiver conforms to the mandates of R.C. 2945.05 and the trial court's colloquy with appellant was constitutionally sufficient, no error occurred. Appellant's first assignment of error is not well-taken.

{¶24} II.

{¶25} Appellant asserts in his second assignment of error that he received ineffective assistance of counsel due to a possible conflict of interest. The state contends that appellant waived any conflict of interest through a written waiver. At the commencement of the sentencing phase, appellant's appointed counsel notified the trial court that he had accepted employment with the Wood County Prosecutor's Office in the following manner:

{¶26} "MR. MENESES: Thank you, Your Honor. First of all, for the record, I would place on that [sic] I spoke to Mr. Muniz. He understands that I am taking employment with the Wood County prosecutor's office. He has signed a document, which we have in our file, waiving that conflict. He wishes me to cover his sentencing today and to go forward with him today, Your Honor.

{¶27} "THE COURT: All right."

{¶28} The matter proceeded to sentencing. No written waiver of conflict of interest by appellant was made part of the record, and the trial court held no colloquy with appellant.

{¶29} "[S]entencing is a critical stage of the criminal proceeding at which [a defendant] is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128; Specht v. Patterson, 386 U.S. 605. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v. Illinois, 391 U.S. 510, 521-523." Gardner v. Florida (1977), 430 U.S. 349, 358. Appellant bears the burden of proving that his trial counsel was ineffective. State v. Hamblin (1988), 37 Ohio St.3d 153, 156.

{¶30} "Where a constitutional right to counsel exists, Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia (1981), 450 U.S. 261, 271. Other jurisdictions have faced factually similar conflict of interest situations, see e.g., Garcia v. Bunnell, (C.A. 9, 1994)33 F.3d 1193, U.S. v. Franklin, (E.D. Pa 2002) 213 F. Supp. 2d 478, 485 (reviewing cases involving factually similar alleged conflict situations and finding no actual conflict).

{¶31} Generally, counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; State v. Lytle (1976), 48 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed. However, in cases where a defendant alleges his right to counsel was impinged by a conflict of interest, the tripartite decisions of Cuyler v. Sullivan (1980) 446 U.S. 335, Holloway v. Arkansas (1978) 435 U.S. 475, and Wood v. Georgia (1981) 450 U.S. 261, "apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant's Sixth Amendment right to counsel." Mickens v. Taylor (2002), 535 U.S. 162, 176. Mickens clarified and limited application of the prophylactic rules only...

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