S054661, Opinion — State v. Barber

525
Argued and submitted September 10, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings December 13, 2007
STATE OF OREGON,
Respondent on Review,
v.
RICHARD EDWARD BARBER,
Petitioner on Review.
(CC CR030271; CAA124761; SC S54661)
173 P3d 827
On review from the Court of Appeals.*
Bronson D. 	James, 	Deputy 	Public 	Defender, 	Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Mary H. Williams, Solicitor General, Salem, argued the
cause and filed the brief for respondent on review. With her
on the brief was Hardy Myers, Attorney General.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
* Appeal from Yamhill County Circuit Court, Carroll J. Tichenor, Judge. 209
Or App 262, 14 7 P3d 915 (2006).
** Linder, J., did not participate in the consideration or decision of this case.

526
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court 	is 	reversed, 	and the case 1s
remanded to the circuit court for further proceedings.

Cite as 343 Or 525 	527
GILLETTE, J.,
In this criminal case, defendant was convicted of
burglary and theft in a trial that was conducted by the court
on stipulated facts. 1 With respect to that trial, the record does
not contain either a written waiver of defendant's right to a
jury trial or some other indication that defendant executed
such an agreement. Defendant appealed his convictions to
the Court of Appeals, arguing, among other things, that the
lack of a written waiver invalidated those convictions. The
Court of Appeals agreed that the lack of a written waiver vio-
lated defendant's rights under Article I, section 11, of the
Oregon Constitution. 2 The court nonetheless affirmed defen-
dant's convictions, concluding that, although the error was
apparent on the face of the record, the court would exercise
its discretion not to consider it. State u. Barber, 209 Or App
262, 266, 269, 14 7 P3d 915 (2006). We allowed defendant's
petition for review, and now reverse the decision of the Court
of Appeals.
As noted, the record in this case does not include
either a pretrial written waiver of defendant's right to a jury
trial or any other indication in the record that such a docu-
ment had been executed. Indeed, the only discussion in this
record that even arguably touches on the subject of waiver of
defendant's jury trial right is one question put by the trial
judge to defendant ("Do you have any objection if your attor-
ney and [the prosecutor] get together and do this, [i.e., agree
on stipulated facts] sir?") and the defendant's answer ("No, I
do not."). Neither defendant nor his lawyer ever objected to
the procedure that the trial court followed.
1 Defendant is a veteran of the process, having been convicted of burglary on
several occasions. Police identified him as the perpetrator of the present crime
through DNA evidence obtained as a result of a previous conviction. He moved to
suppress evidence relating to that DNA-based identification, but the trial court
overruled his motion. The stipulated facts trial followed. As the case comes to us,
there no longer is any issue respecting the DNA evidence.
2 Article I, section 11, of the Oregon Constitution provides, in part:
"In all criminal prosecutions, the accused shall have the right to public
trial by an impartial jury***; 	**any accused person, in other than capital
cases, and with the consent of the trial judge, may elect to waive trial by jury
and consent to be tried by the judge of the court alone, such election to be in
writing[.]"

528 	State v. Barber
On defendant's appeal to the Court of Appeals, the
state, although pointing out that there had been no objection
to defendant's case being tried on stipulated facts to the
court, went on to acknowledge that there nonetheless had
been an error. However, the state asserted that the Court of
Appeals should elect not to consider that error:
"Although the state concedes that the trial court plainly
erred in trying defendant to the bench on stipulated facts
without a written waiver, the error was harmless in light of
defendant's oral waiver. Thus, this court should decline to
exercise its discretion to review defendant's asserted error."
As we shall explain, the Court of Appeals in the main
accepted the state's invitation to dispose of the case on that
discretionary ground.
The authority of a reviewing court to consider error
apparent on the face of the record is described in ORAP
5.45(1):
"No matter claimed as error will be considered on
appeal unless the claimed error was preserved in the lower
court and is assigned as error in the opening brief in accor-
dance with this rule, provided that the appellate court may
consider an error oflaw apparent on the face of the record."
Although that rule was not cited in the Court of Appeals opin-
ion in this case, there is no question that the court was rely-
ing on that rule and intended to follow it. The court stated:
"Even though an error is apparent on the face of the
record, it is within our discretion as to whether to review it
in a particular case. State u. Brown, 310 Or 347, 355-56, 800
P2d 259 (1990). In deciding whether to exercise our discre-
tion to consider errors apparent on the face of the record, we
consider such nonexclusive factors as the competing inter-
ests of the parties, the nature of the case, the gravity of the
error, how justice might best be served, whether the error
was called to the attention of the trial court in any manner
and could have been corrected by it, and whether the poli-
cies behind the general rule requiring preservation of error
have been served in the case in another way. Ailes u.
Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956
(1991)."

Cite as 343 Or 525 (2007) 	529
Barber, 209 Or App at 266. Ailes is this court's principal case
analyzing ORAP 5.45(1), a fact that further justifies our con-
clusion that the Court of Appeals was proceeding under that
rule.
The Court of Appeals then identified the factors in
the present case that seemed to it to be pertinent and, having
done so, chose not to address the error. Id. at 267-69. We need
not address those factors here; it is sufficient to note that the
Court of Appeals considered a range of them, weighed them,
and then made its discretionary choice. That is the way such
decisions are supposed to be made under the Ailes paradigm.
Compare State v. Fults, 343 Or 515, 173 P3d 822 (2007) (exer-
cise of discretion based on single factor, considered alone,
inconsistent with exercise of discretion as contemplated by
Ailes).
We begin our review of the Court of Appeals decision
in this case by considering the text of Article I, section 11. As
noted, that section provides, in part:
"In all criminal prosecutions, the accused shall have the
right to public trial by an impartial jury * * *; * * * any
accused person, in other than capital cases, and with the
consent of the trial judge, may elect to waive trial by jury
and consent to be tried by the judge of the court alone, such
election to be in writing[.]"
The special peculiarity of Article I, section 11, does not lie in
the fact that it describes a personal right. That is a character-
istic that it shares with other constitutional provisions, such
as Article I, section 8 (right of free expression), section 9
(right to be free from unreasonable searches and seizures),
and section 12 (protection against double jeopardy), to name
but a few. The distinction instead lies in the fact that Article
I, section 11, not only recognizes a right but also specifies the
only way in which that right may be lost, viz., by a written
waiver executed before trial commences, together with trial
court consent.
Indeed, when one focuses on the right to a jury trial
granted by Article I, section 11, its unique nature and the
consequences that flow from that nature become apparent.
The provision undoubtedly is worded as an individual right
("the accused person shall have the right to public trial by an

530 	State v. Barber
impartial jury"). But the emphasized part of the phrase, "any
accused person * * * may elect to waive trial by jury and con-
sent to be tried by the judge of the court alone, such election to
be in writing," demonstrates what it is that makes Article I,
section 11, different: The provision itself prescribes the only
way in which an accused person may waive his or her right to
a jury trial, and adherence to that method by the trial judge
is itself a 	substantive constitutional right to which the
accused is entitled.
We think that the unique wording of the part of Arti-
cle I, section 11, that we emphasize today and the unique
kind ofrights that that wording represents places errors com-
mitted with respect to it in a unique posture also: There is no
waiver of a jury trial unless that waiver is in writing and,
without a waiver, defendant should have been tried by a jury.
The judge's error thus lay in going to trial at all. And, with
respect to that kind of error under Article I, section 11, we
cannot identify any way in which an appellate court may
elect under ORAP 5.45(1) either to refuse to recognize the
error or, having recognized it, refuse to correct it. Put in
Ailes I Fults terms: There unquestionably is a "strong polic[y]
requiring preservation and raising of error." Fults, 343 Or at
521 (citing Ailes, 312 Or at 382). But that policy and the fac-
tors underlying it are court-created and general. Here, those
factors have to be weighed against a constitutional provision
specifying the only way that the right that the provision sep-
arately grants may be waived. So understood, there is no con-
test. The Court of Appeals' contrary conclusion that it had the
discretion to ignore the absence of a written waiver was
incorrect.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.