STATE v. THOMAS (2018)

MEMORANDUM OPINION

Veronica Lynn Thomas was found guilty of multiple drug-related charges after a trial to the court. She appeals, contending that although she waived her right to a jury trial, she did not do so knowingly. We agree that her jury trial waiver was invalid because the district court did not properly advise her about her right to a jury trial. We thus reverse the convictions and remand the case.

Factual and procedural background

On August 19, 2015, the State charged Thomas with three counts of severity level 3 felony distribution of methamphetamine, one count of severity level 4 felony distribution of methamphetamine, one count of severity level 4 felony possession of methamphetamine with intent to distribute, one count of severity level 8 felony use of a communication facility for a drug transaction, one count of class A misdemeanor possession of marijuana, and one count of class A misdemeanor possession of drug paraphernalia. The case was set for jury trial.

At a pretrial motions hearing, the State told the district court that it understood the parties had reached a resolution. But Thomas' attorney, Amy Ahrens, was unaware of a probation revocation recently filed in another case involving Thomas. As a result, the parties requested a continuance and asked the district court to set the matter for a plea hearing. The State noted, “Miss Thomas is willing or is going to be waiving her right to a jury trial today,” prompting the following exchange:

“[AHRENS:] And that is correct, Your Honor. If possible, we would ask the Court to cancel the jury trial and set this for a plea on August 31st.

“[THE COURT:] Miss Thomas, are you willing, then, to withdraw your request for jury trial and schedule this just for a status hearing?

“[THOMAS:] Yes, Your Honor.

“[THE COURT:] And that was set for ․

“[THE PROSECUTOR:] This was set for jury trial September 26th.

“[THE COURT:] Thank you. So we want to set a status? No. A plea; is that right?

“[THE PROSECUTOR:] Yes, a plea.

“[AHRENS:] That'd be correct, Your Honor.”

A plea hearing was then set.

But Thomas failed to appear in court for her plea hearing, so the district court continued it. When Thomas again failed to appear for her plea hearing, the district court issued a bench warrant.

When Thomas later appeared in court, her attorney announced that Thomas now wanted a jury trial, acknowledging that Thomas “had previously waived” that right. The district court agreed to set the matter for hearing, and it later permitted Ahrens to withdraw from her representation of Thomas and appointed another attorney.

Thomas then moved to withdraw her jury trial waiver, arguing she had not knowingly and voluntarily waived her right to a jury trial. At the hearing on Thomas' motion to withdraw her jury trial waiver, Thomas testified that she did not know what she was doing when she waived her right to a jury trial. Thomas explained that she was distraught and was not thinking clearly because five of her immediate family members, including her mother, had recently died, and because she was using drugs at the time. She also stated that her attorney had not made the waiver of her jury trial right completely clear to her.

The district court denied Thomas' motion to withdraw her jury trial waiver, finding that Thomas had been willing to waive her right to a jury trial and wished to pursue “further possible settlement.” The district court explained: “No promises were made and nor [sic] any pressure placed upon the defendant. She did not ask any questions or show reluctance at the hearing of the waiver. No subsequent evidence has been presented that she was unfairly pressured or misrepresentations were made to induce the waiver.” The district court found that “it is more likely than not the defendant is now seeking to withdraw her waiver as part of a pattern of delay to avoid an actual determination of the facts in this case.” As a result, the district court determined that Thomas had knowingly and voluntarily waived her right to a jury trial and had failed to show good cause to set aside her waiver.

Thomas' case was tried to the court. The district court found Thomas guilty of all 8 counts charged and sentenced her to a controlling term of 83 months in prison. Thomas timely appeals.

Did Thomas preserve her jury trial waiver argument?

Thomas first contends that her jury trial waiver was invalid because the district court did not properly advise her about her right to a jury trial. Thomas acknowledges that she did not raise this issue before the district court.

In general, a defendant may not raise for the first time on appeal an issue not raised before the district court. State v. Shadden, 290 Kan. 803, 813, 235 P.3d 436 (2010). We recognize three exceptions, however, that allow us to consider a constitutional issue raised for the first time on appeal. One of those exceptions is when “consideration of the issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights.” State v. Rizo, 304 Kan. 974, 978-79, 377 P.3d 419 (2016). Thomas asserts this exception here, in compliance with Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34).

The right to a jury trial is a fundamental right. “There is no more fundamental right in the United States than the right to a jury trial.” State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004). The Kansas Supreme Court has several times reviewed the validity of a jury trial waiver for the first time on appeal to prevent the denial of a fundamental right. See, e.g., State v. Redick, 307 Kan. 797, 802, 414 P.3d 1207 (2018); Rizo, 304 Kan. at 979; State v. Beaman, 295 Kan. 853, 857-58, 286 P.3d 876 (2012); State v. Frye, 294 Kan. 364, 368-71, 277 P.3d 1091 (2012). In Frye, the court explained “the issue presented in this case—whether the court has advised a defendant of his or her right to a jury trial—should be one of the last to be denied the opportunity for exceptional treatment.” 294 Kan. at 370. We thus address the merits of this issue.

Did Thomas waive her right to jury trial?

The parties do not dispute the facts related to Thomas' jury trial waiver. In fact, Thomas does not dispute that she waived her right to a jury trial in open court. But she contends that she did not do so knowingly because the district court failed to sufficiently advise her of the right to a jury trial. We have unlimited review of the legal issue whether Thomas effectively waived her right to a jury trial. Rizo, 304 Kan. at 979.

The Sixth Amendment to the United States Constitution and §§ 5 and 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury trial. Consistent with these constitutional guarantees, K.S.A. 22-3403(1) provides that all felony cases must be tried by jury, unless “[t]he defendant and prosecuting attorney, with the consent of the court,” elect to submit the trial to the court. Although a defendant may waive the right to a jury trial, such waivers “should be strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury.” Beaman, 295 Kan. at 858.

“The test for determining the waiver's validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing.” Beaman, 295 Kan. at 858. When a defendant waives the right to a jury trial, the presiding judge must ensure that his or her rights have been adequately protected. 295 Kan. 853, Syl. ¶ 2. A defendant's waiver of the right to a jury trial is “strictly construed to ensure the defendant has every opportunity to receive a fair and impartial trial by jury.” 295 Kan. at 858. “Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record.” State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).

In Irving, the Kansas Supreme Court held that for a jury trial waiver to be valid, “the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590. See Redick, 307 Kan. at 803; Rizo, 304 Kan. 974, Syl. ¶ 2. The Irving standard was adopted as a safeguard against a defendant's involuntary waiver and minimizes “the uncertainty otherwise attendant to the determination of whether the defendant knowingly and intelligently waives a jury trial.” 216 Kan. at 590.

Kansas law does not require a court to warn a defendant of every right that pertains to a jury trial before voluntarily waiving that right. See Redick, 307 Kan. at 804; Rizo, 304 Kan. at 981. “Our Supreme Court has found the waiver of a jury trial to be intelligent even though the trial court's colloquy with the defendant was brief, provided that the trial court informed the defendant that he or she had a right to a jury trial.” State v. Simpson, 29 Kan. App. 2d 862, 868, 32 P.3d 1266 (2001). The Kansas Supreme Court has also upheld jury trial waivers when the district court did not explicitly advise the defendant of the right to a jury trial. For example, in Beaman, the district court engaged in a colloquy with the defendant, confirmed his “ ‘desire to waive a jury for this trial,’ ” discussed that his defense attorney had advised against waiver, and heard Beaman personally explain in detail why he preferred to try the case to the judge. 295 Kan. at 854-55, 860-62. See State v. Clemons, 273 Kan. 328, 339-41, 45 P.3d 384 (2002). In upholding the jury trial waiver, Beaman emphasized that the colloquy had fulfilled the underlying purpose of the Irving standard—that the district court “satisfy itself that [the] defendant knows what rights he or she has and what he or she is giving up.” 295 Kan. at 860-61. Beaman teaches that the form of a waiver is not the determining factor in whether the defendant knowingly and intelligently waived the right to a jury trial. 295 Kan. at 861.

Thomas' waiver took place during a pretrial hearing in which the State and Thomas' attorney said that Thomas was “going to waive her right to a jury trial.” The following excerpt reflects the entirety of the district court's colloquy with Thomas about her decision to waive her right to a jury trial:

“[THE COURT:] Miss Thomas, are you willing, then, to withdraw your request for jury trial and schedule this just for a status hearing?

“[THOMAS:] Yes, Your Honor.”

We find no other record that would tend to show that either the court or Thomas' counsel had earlier informed Thomas more fully of her right to a jury trial or of the effect of her decision.

The facts and circumstances compel us to find the district court failed to satisfy Irving's requirement of advising Thomas of her right to a jury trial before her waiver. Unlike in Beaman, the district court did not use the word “waiver” in its colloquy with Thomas, and the record shows no thoughtful exchange between the district court and Thomas about her reasons for waiving a jury trial. Although the attorneys said that Thomas was waiving her right to a jury trial, the district court asked only whether Thomas was willing to “withdraw [her] request for jury trial.” That question fails to reflect that a jury trial is a constitutional right. The district court judge did not affirmatively tell Thomas of her right to a jury trial, did not explain that withdrawing her request for a jury trial was a permanent decision, and did not mention either a “waiver” or a “right” to her.

We acknowledge that some panels of this court are split on exactly what a district court must tell a criminal defendant for a jury trial waiver to be knowing and voluntary. Some panels find that informing the defendant that they have a right to a jury trial is sufficient, while others require a greater explanation of what the right to a jury trial entails. See State v. Jackson, No. 117,029, 2018 WL 2272590, at *8-9 (Kan. App. 2018) (unpublished opinion) (citing cases). But we know of no case which has found a valid waiver based on such a scant inquiry as the one here.

Although the context makes the district court's lack of inquiry understandable, as Thomas had decided to enter a plea, the record contains no facts which the district court could have used to satisfy itself that the defendant knew what rights she had and what rights she was giving up. When Thomas later went to trial instead of entering a plea, she suffered the consequences of her uninformed choice. For these reasons, we find Thomas' jury trial waiver invalid. We need not reach Thomas' remaining argument that the district court abused its discretion by denying her request to withdraw her jury trial waiver.

We reverse the convictions and remand the case with directions to afford Thomas her constitutional right to a jury trial or to effect a valid jury trial waiver.

Per Curiam: