STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 21, 2017
               Plaintiff-Appellee,

v                                                                    No. 329387
                                                                     Wayne Circuit Court
VICTOR ALEJANDRO TORRES-RIVERA,                                      LC No. 14-009472-01-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions, following a bench trial, of three counts of
first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (person under 13 years of
age), three counts of third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a)
(person under 13 years of age), and one count of second-degree criminal sexual conduct (CSC
II), MCL 750.520c(1)(a) (person under 13 years of age).1 We affirm.

        Defendant’s sole claim on appeal is that he did not “understandingly[,]” voluntarily and
intelligently waive his right to a jury trial. This issue has not been preserved for appeal where a
review of the record confirms that defendant did not object to proceeding to trial without a jury
and he did not challenge the trial court’s acceptance of his jury waiver. People v Metamora
Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Likewise, the trial court did not
consider this issue. Id. We review unpreserved constitutional issues for plain error affecting the
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).

        The Michigan Supreme Court has recognized that the right to a jury trial in a criminal
felony prosecution is “fundamental[,]” and is protected by both the federal and state
constitutions. People v Allen, 466 Mich 86, 90; 643 NW2d 227 (2002), citing Duncan v
Louisiana, 391 US 145, 149; 88 S Ct 1444; 20 L Ed 2d 491 (1968); US Const Am VI; Const
1963; art 1, § 20. A criminal defendant may waive the constitutional right to a trial by jury if the


1
 Defendant was sentenced to concurrent terms of 25 to 50 years’ imprisonment for the CSC I
convictions, and 5 to 15 years’ imprisonment for the remaining CSC II and CSC III convictions.


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prosecutor consents and the trial court approves. MCL 763.3(1). The waiver must be made in
open court and after the defendant has had the opportunity to consult with counsel. MCL
763.3(2). A defendant cannot waive his right to a jury until he “has been arraigned and has had
opportunity to consult with legal counsel.” MCL 763.3(2). The governing court rule, MCR
6.402(B) provides, in pertinent part, as follows:

       Waiver and Record Requirements. Before accepting a waiver, the court must
       advise the defendant in open court of the constitutional right to trial by jury. The
       court must also ascertain, by addressing the defendant personally, that the
       defendant understands the right and that the defendant voluntarily chooses to give
       up that right and to be tried by the court. A verbatim record must be made of the
       waiver proceeding.

There is a presumption that the waiver is knowing, voluntary, and intelligent if the record
confirms that the trial court complied with the court rule. People v Mosly, 259 Mich App 90, 96;
672 NW2d 897 (2003).

        In the instant case, defendant waived his right to a jury trial after he was arraigned.
Defendant also, under oath, acknowledged on the record before the trial court that he had
consulted with his attorney before effectuating the waiver. Defendant’s attorney acknowledged,
by signing the written waiver form, part of the lower court record, that she had advised defendant
of his constitutional right to a trial by jury. The trial court also specifically advised defendant
that he had a constitutional right to a trial by jury and that by waiving that right, the trial court
alone, acting as the trier of fact, would decide his guilt or innocence. Defendant stated that he
understood his right to a trial by jury and that he was voluntarily giving up that right, which he
confirmed by signing the written waiver. The trial court also took the time to confirm that
defendant did not make his waiver under duress or because of any promise made to him. As the
prosecution observes in its brief on appeal, this Court concluded that a similar factual record
supported a valid waiver in People v Shields, 200 Mich App 554, 560-561; 504 NW2d 711
(1993).

        Relying on United States v Martin, 704 F2d 267 (CA 6, 1983), defendant contends that
he should have been provided additional advice about the right to a jury trial in order to make an
intelligent waiver. In Martin, 704 F2d at 274-275, the United States Court of Appeals for the
Sixth Circuit held, in pertinent part, as follows:

               Moreover, a defendant ignorant of the nature of the jury trial right cannot
       intelligently weigh the value of the safeguard. A defendant, therefore, should
       have both the mental ability and some knowledge of the jury trial right before he
       is allowed to waive it. A technical knowledge of the jury trial right, however, is
       not what is required. A defendant is sufficiently informed to make an intelligent
       waiver if he was aware that a jury is composed of 12 members of the community,
       he may participate in the selection of the jurors, the verdict of the jury must be
       unanimous, and that a judge alone will decide guilt or innocence should he waive
       his jury trial right. See United States v Delgado, 635 F2d 889, 890 (CA 7, 1981).
       Knowledge of these essential attributes is generally sufficient to enable a
       defendant to make a knowing and intelligent decision.

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                                              * * *

               At a minimum, a defendant should be informed that a jury is composed of
       12 members of the community, he may participate in the selection of jurors, the
       verdict of the jury must be unanimous, and that a judge alone will decide guilt or
       innocence should he waive his jury trial right. See [Delgado, 635 F2d at 890].
       [Citations omitted.]

        The Martin Court also held that “[t]here is no constitutional requirement that a court
conduct an on the record colloquy with the defendant prior to the jury trial waiver.” Martin, 704
F2d at 274. In Delgado, 635 F2d at 890,2 the case on which the Martin Court primarily relied,
the United States Court of Appeals for the Seventh Circuit stated that federal district courts in
that circuit were required to explain the following to a defendant:

       We take this opportunity to advise the trial courts that they should explain that a
       jury is composed of twelve members of the community, that the defendant may
       participate in the selection of jurors, and that the verdict of the jury is unanimous.
       The court should inform the defendant that if he waives a jury, the judge alone
       will decide guilt or innocence. After informing the defendant of these factors, the
       trial court should then ascertain whether the defendant wishes to waive his right to
       a jury trial. Only after this type of inquiry will the court be able to determine that
       the defendant understands his right to a jury trial and the consequences of waiver.

        However, the United States Court of Appeals for the Sixth Circuit has held that the
advice required under Delgado is not a requirement of the constitution. United States v
Sammons, 918 F2d 592, 597 (CA 6, 1990). Likewise, “a defendant may make a knowing,
intelligent waiver of the right to trial by jury without receiving the admonitions in the Delgado
warning.” United States v Rodriguez, 888 F2d 519, 528 (CA 7, 1989) (citation omitted).
Moreover, in Shields, 200 Mich App at 560-561, this Court held that “the trial court properly
ascertained that [the] defendant understood his right to have a jury trial and that he voluntarily
waived that right[,]” even where the trial court did not give the defendant any further specific
information concerning the nature of his right to a jury trial. Further, this Court has expressly
rejected the argument that a waiver of the right to a jury trial is not valid unless the trial court
specifically advises the defendant that a jury’s verdict must be unanimous, and that in a bench
trial a defendant’s guilt or innocence is determined by a single person. People v James (After
Remand), 192 Mich App 568, 570-571; 481 NW2d 715 (1992). Our research also did not yield
any Michigan authority requiring a trial court to inform a defendant about the right to a jury trial
as set forth in Delgado.


2
  In United States v Rodriguez, 888 F2d 519, 527-528 (CA 7, 1989), the United States Court of
Appeals for the Seventh Circuit, considering Delgado, noted that pursuant to federal statute and
court rule, the federal courts are required to “disregard errors that do not affect the substantial
rights of the parties.” The Rodriguez Court also observed that prior precedent in that circuit
precluded courts from exercising their supervisory right to “reverse judgments without inquiring
whether the error affected substantial rights.” Id. at 528.


                                                -3-
         While the trial court did not specifically inform defendant of the exact nature of the right
to a trial by jury, the trial court did make sure to inform defendant twice that the trial court alone
would determine his guilt or innocence and would act as the trier of fact. The trial court took
great care to ensure that defendant understood his right to trial by jury, and that he voluntarily
waived that right and agreed to be tried by the court. Put simply, the trial court’s conduct
complied with MCR 6.402. Defendant also entered the waiver after stating that he had discussed
his choice with his legal counsel. The record simply does not contain evidence to counteract the
presumption that defendant’s waiver of his right to a trial by jury was anything but knowing,
voluntary and intelligent where the trial court complied with the court rule. Mosly, 259 Mich
App at 96. In Brady v United States, 397 US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747 (1970), the
United States Supreme Court stated that “[w]aivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.” (Footnote and citations omitted.) After a close review
of the record, we are satisfied that defendant’s action in waiving his constitutional right to a jury
trial was made with the awareness required by Brady. Therefore, defendant has failed to
demonstrate any error with regard to his choice to proceed with a bench trial.

       Affirmed.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Christopher M. Murray
                                                              /s/ Karen M. Fort Hood




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