APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION. NO. CR2012-3853. HONORABLE WENDELL GRIFFEN, JUDGE.
Don Thompson, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.
Dustin McDaniel, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge. HIXSON and BROWN, JJ., agree.
PHILLIP T. WHITEAKER, Judge
Appellant Jonathan Johns was charged by felony information with one count of maintaining drug premises, a Class C felony; one count of possession of less than two grams of a controlled substance, a Class D felony; and one count of possession of drug paraphernalia, also a Class D felony. The information also reflected that Johns, who had been previously convicted of four or more felony offenses, was subject to the sentence-enhancement provisions of Arkansas Code Annotated section 5-4-501(b) (Repl. 2006). Johns waived his right to a jury trial, and the Pulaski County Circuit Court found him guilty of the two Class D felonies. He was acquitted of maintaining a drug premises. After a separate sentencing hearing, the court sentenced Johns to three years on each count, to be served concurrently. On appeal, Johns asserts that the written jury-waiver form he filled out was invalid because the waiver did not specifically state that he was facing habitual-offender sentencing on each of
the charges. We find no error and affirm.
The right to be tried by a jury is guaranteed under the Sixth Amendment to the United States Constitution and article 2, section 7, of the Arkansas Constitution. When a defendant exercises his constitutional right to be tried by a jury, then the jury in a separate proceeding fixes the appropriate statutory punishment. See Ark. Code Ann. § 5-4-103(a) (Repl. 2006).
While the constitution guarantees a right to be tried by a jury, there is no constitutional right to be sentenced by a jury. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001) (citing Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988)). A defendant may, moreover, waive his constitutional right to be tried by a jury. Ark. R. Crim. P. 31.2. When a defendant waives his right to be tried by a jury, he waives his statutory right to be sentenced by a jury. See Ark. Code Ann. § 5-4-103(b)(2) (Repl. 2006) (" The court shall fix punishment as authorized in this chapter in any case in which . . . [t]he defendant's guilt is tried by the court." ). In order for one's jury-trial right to be abrogated, there must be a showing of a knowing and voluntary waiver made and demonstrated on the record. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997); Williams v. State, 65 Ark.App. 176, 986 S.W.2d 123 (1999). Absent a waiver, it is generally improper for a circuit court to assess a defendant's sentence in place of a jury. Davenport v. State, 2013 Ark. 508, at 7, 431 S.W.3d 204, 208 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973)). In order for a defendant to waive his right to a jury trial, the circuit court must ensure that the waiver is knowingly, intelligently, and voluntarily made. Barrow v. State, 2010 Ark.App. 589, 377 S.W.3d 481.
Rule 31.2 also requires that there must be a verbatim record of any proceedings at which the defendant waives his right in person or through counsel that must be preserved. Barrow, supra. Here, the circuit court made a verbatim record of the defendant's written waiver. Johns executed a written waiver of his right to jury trial; the waiver form contained the following language:
I understand that I have a right to a jury trial where no verdict would be accepted unless all twelve jurors agreed. If the jury found me to be guilty of anything, I would have the right to have the jury set my punishment.
I waive my right to have a jury trial. I ask that the judge hear and weight [sic] the evidence and, after applying the law, make a decision if I am guilty of anything. If the judge ...