This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Steven Joseph Barach,
Filed May 28, 2002
Reversed and remanded
Itasca County District Court
File No. T8012256
Mike Hatch, Attorney General, Suite 500, 525 Park Ave., St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, 123 Northeast Fourth St., Grand Rapids, MN 55744 (for respondent)
James Perunovich, Law Offices of James Perunovich, Suite 7, 402 East Howard St., Hibbing, MN 55746 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Steven Barach appeals his misdemeanor conviction for making harassing telephone calls. Barach contests both the sufficiency of the evidence and the absence from the record of any waiver of his right to a jury trial. Because the record is devoid of any evidence that Barach waived his right to a jury trial, we reverse and remand.
F A C T S
In late July 2000, Steven Barach and his brother filed a consumer complaint with the Minnesota Attorney General’s office. Barach was unsatisfied with the handling of the complaint, and Barach’s communication with the consumer division became contentious, aggressive, and accusatory. After several calls that resulted in warnings by the Itasca County Sheriff’s office, Barach was charged with making harassing communications in violation of Minn. Stat. §§ 609.79, subd. 1(b), .05 (2000).
Barach pleaded not guilty and the district court, sitting without a jury, conducted a trial in November 2001. The court found Barach guilty of making harassing communications and imposed sentence. Barach appeals, arguing that his conviction should be reversed for two independent reasons: the evidence is insufficient to support the conviction, and he did not waive his right to a jury trial.
D E C I S I O N
A defendant is entitled to a jury trial in any prosecution punishable by incarceration. Minn. R. Crim. P. 26.01, subd. 1(1)(a). Barach was charged with a misdemeanor, which is punishable by a sentence of not more than 90 days. Minn. Stat. §§ 609.79, subd. 1(b), .02, subd. 3 (2000). The Minnesota Constitution provides for jury trial and also provides for waiver of a jury trial “in the manner prescribed by law.” Minn. Const. art. I, § 4. The manner prescribed by law is personally in writing or “orally upon the record in open court” after being advised of the right to jury trial and after having had an opportunity to consult with an attorney. Minn. R. Crim. P. 26.01, subd. 1(2)(a); State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).
Waiver requirements have been strictly construed, and courts generally require careful adherence to the waiver rule. State v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986); State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984). Minnesota case law requires that the waiver be knowing, intelligent, and voluntary. State v. Pietraszewski, 283 N.W.2d 887, 889-90 (Minn. 1979). The district court must be satisfied that the defendant was informed of his rights and that the waiver was voluntary. Id. In State v. Ford, the Minnesota Supreme Court made an exception to the rule on the single issue of entrapment because the defendant was present when counsel waived the jury trial on that issue. State v. Ford, 276 N.W.2d 178, 183 (Minn. 1979). This court later declined to extend the ratification principle in Ford to constitute a valid waiver of a jury trial on all issues. Sandmoen, 390 N.W.2d at 424.
No evidence in the record substantiates that Barach ever agreed to personally waive his right to trial by jury. The bench trial began without any reference to the right to jury trial or the waiver of that right, and waiver of a jury trial was not addressed in motions during the pretrial period. Furthermore, there is no written waiver signed by Barach in the record, and there is no proof that Barach was ever advised of his rights by either the court or his counsel. At oral argument the attorney for the state acknowledged that he was unable to find any indication in the record that Barach had waived his right to a jury trial. Thus, the record contains no evidence of compliance with rule 26.01, subd. 1(2)(a), and Barach’s jury-trial waiver was invalid.
This court has recently reaffirmed that in a criminal prosecution for crimes punishable by incarceration, the defendant must personally waive the right to a jury or acquiesce in his attorney’s waiver of that right. State v. Tlapa, 642 N.W.2d 72, 74-75 (Minn. App. 2002). Absent a personal waiver, a waiver may not be implied, and the case must be reversed and remanded for compliance with Minn. R. Crim. P. 26.01, subd. 1(2)(a).
Reversed and remanded.