STATE v. DODSON (2008)

MEMORANDUM OPINION

Defendant Dustin K. Dodson appeals his misdemeanor conviction and sentence for one count of harassment by telephone. He argues the district court failed to advise him of his right to trial by jury and failed to obtain a knowing and voluntary waiver of this right.

We reverse the defendant's conviction, vacate his sentence, and remand for a new trial because the record does not show the requirements for waiver of jury trial were followed.

The State contends, and the defendant concedes, this issue was not raised before the district court. Generally, issues not raised before the district court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). However, there are several exceptions to this rule, including where (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, or (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or reasons. 283 Kan. at 339, 153 P.3d 1208.

Both parties here suggest the right to a jury trial is a fundamental right sufficient to bring this case under the second exception. A panel of this court has previously recognized “[t]here 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). Accordingly, we will address the merits of the defendant's issue.

The defendant supports his argument by contending the record is silent as to any waiver of his right to jury trial or effort by the court to advise him of this right. The State does not contest the record is silent as to any waiver, or the defendant was entitled to a jury trial if he so desired. However, the State does request a remand for the district court to hold a hearing to determine whether defendant's counsel advised him of his right to trial by jury. The State suggests such advice would satisfy the waiver requirements.

In State v. Irving, 216 Kan. 588, 589–90, 533 P.2d 1225 (1975), our Supreme Court adopted the recommended jury trial waiver procedure from the American Bar Association Standards for Criminal Justice. The Irving Court held in order for a criminal defendant to effectively waive the right to a trial by jury, the defendant must first be advised by the court of the right to a jury trial, and the defendant must personally waive this right in writing or in open court for the record. 216 Kan. at 590, 533 P.2d 1225.

Panels of this court have consistently and strictly applied the holding from Irving in subsequent cases. See, e.g., State v. Sykes, 35 Kan.App.2d 517, 524, 132 P.3d 485 (2006); Larraco, 32 Kan.App.2d at 999–1002, 93 P.3d 725; State v. Jones, 19 Kan.App.2d 982, 984, 879 P.2d 1141 (1994).

Here, the only discussion in the record regarding the type of trial is defense counsel's request at the scheduling conference to set the case for trial to the court. There is no indication in the record the district court advised the defendant of his right to a jury trial, or that the defendant personally waived this right in writing or in open court. Clearly, Irving requires the defendant's conviction be reversed and this case be remanded to the district court for further proceedings.

The State's suggestion the Irving requirements could be met if the defendant's counsel had advised him of his jury trial right is not supported by Irving, which specifically requires the defendant be advised by the court and that the defendant personally waive the right on the record. 216 Kan. at 590, 533 P.2d 1225. Furthermore, a panel of this court rejected a similar argument in Larraco, where the State suggested a valid waiver of the right to jury trial existed because there was evidence defense counsel had discussed the right with the defendant client before scheduling a bench trial with the judge's secretary. 32 Kan.App.2d at 1001–02, 93 P.3d 725. The Larraco court noted defense counsel can only waive rights of clients when those rights are not inherently personal, fundamental rights, and a waiver of a constitutional right will not be presumed from a silent record. 32 Kan.App.2d at 1001, 93 P.3d 725. The Larraco court determined any conversation between the defendant and counsel regarding the right to jury trial was not controlling because there was no formal waiver by the defendant contained in the record, as required by Kansas case law. 32 Kan.App.2d at 1001–02, 93 P.3d 725.

Here, there is no formal waiver contained in the record. Even if we were to remand the case to the district court to determine if the defendant's counsel discussed the right to jury trial with him, and even if such discussion were somehow adequate to meet the requirement in Irving, the district court advise the defendant of the right to trial by jury, the logic of Larraco dictates this defendant would still be entitled to a new trial.

The additional cases cited by the State, State v. Willingham, 266 Kan. 98, 967 P.2d 1079 (1998), State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977), and Taylor v. State, 252 Kan. 98, 843 P.2d 682 (1992), deal with a district court's failure to advise a defendant of the right to appeal or the right to testify. These rights require different considerations than the right to a jury trial, and different statutory and case law has accordingly developed to ensure the appropriate application of these rights. In light of the specific directives of Irving and its progeny in enforcing the right to a jury trial, the State's reliance on these other cases fails.

The State further notes “[t]here is no statutory requirement that the waiver in misdemeanor cases be in open court” and suggests that the American Bar Association recommendations adopted by our Supreme Court in Irving are not dispositive. However, Irving established these recommendations as the law in Kansas. 216 Kan. at 589–90, 533 P.2d 1225. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). There being no such indication here, we are obliged to follow Irving.

Conviction reversed, sentence vacated, and the case remanded for new trial.

PER CURIAM.