Saturday, October 26, 2019

Diversion agreement did not include jury trial waiver

James M. Latta won in State v. Val Williams, No. 120,099 (Kan. App. October 4, 2019), obtaining a reversal of a Graham County criminal threat conviction. Mr. Graham had entered into a diversion agreement with the state, but the state alleged that he violated the terms of the diversion agreement and requested to resume the prosecution. The district court granted the request and convicted Mr. Graham after a bench trial on stipulated facts.

On appeal, Mr. Williams argued that the district court had not obtained a valid waiver of jury trial as part of the diversion agreement or after rescinding the diversion agreement. The COA agreed:

While it is true that this right to a jury trial may be waived if it is done so voluntarily and knowingly, the waiver is to be "strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury." Determining whether this opportunity has been preserved will depend on the particular facts and circumstances of the case. But "a waiver of the right to a jury trial will not be presumed from a silent record." A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. Said another way, an appellate court will not infer an implicit waiver of the right to a jury trial from a silent record on appeal.

Here, we find no written waiver by the defendant and the record is silent on whether Williams waived his right to a jury trial. The transcripts show that the district court did not address Williams' right to a jury trial with him at the diversion revocation hearing before convicting him on stipulated facts at that same hearing. Our review of the diversion agreement reveals that as a condition of the agreement, Williams only waived his right to a speedy trial. The agreement does not address his right to a jury trial. 

It is the district court's responsibility to advise a defendant of the nature and extent of the right to a jury trial. The responsibility to inform the defendant of his or her jury trial right rests "squarely with the presiding judge." The advisement of the jury trial right must come from the court itself. A district court's failure to comply with the requirement to advise a defendant of his or her right to a jury trial on the record requires reversal and remand.

Here, the record does not show that the district court ever advised Williams about his right to a jury trial. As a result, Williams' convictions must be reversed. We remand to the district court to either afford Williams his constitutional right to a trial by jury based on stipulated facts or to allow him to execute a valid waiver of a jury trial.

[Update: the state did not file a PR and the mandate issued on November 12, 2019.]

Saturday, October 19, 2019

Short list for KSC

Here is a press release announcing that the Supreme Court Nominating Commission nominated the following three persons to fill the vacancy created by the retirement of Justice Johnson: Dennis Depew and Steven Obermeier, who both work for the Kansas Attorney General's Office, and Evelyn Wilson, who is chief judge of the 3rd Judicial District, in Topeka. The Governor has 60 days to appoint one of these three persons.

[Update: here is a blog post reporting the Governor's selection of Chief Judge Evelyn Wilson from this list.]

Friday, October 04, 2019

Statute prohibiting possession of theft detection device remover requires showing of particular tool or device

Jennifer C. Roth won in State v. Justice-Puett, No. 119,697 (Kan. App. September 13, 2019), obtaining reversal of a Riley County possession of a theft-detection device remover conviction. Ms. Justice-Puett was alleged to have removed a security detection device from some cell phone screen protectors. But the state did not provide any evidence of what Ms. Justice-Puett used to do so. Ms. Justice-Puett argued that, as charged, the statute required proof of a tool or device specifically designed to remove theft detection devices. The COA agreed:   

This court concludes that K.S.A. 2018 Supp. 21-5805(c) is plain and unambiguous in prohibiting the possession of any object intentionally designed to allow removal of theft detection devices with the intent to do so without the permission of the merchant or person owning or holding such merchandise. Examples of such an object would be the Q4 and S3 demagnetizing tools possessed by the store employees, or black market versions of them. The intent requirement of the statute differentiates store employees, who legally carry such tools, from shoppers, who would presumably have no business carrying their own demagnetizer in a retail store. Under this plain reading, criminal intent can be inferred from possession. While K.S.A. 2018 Supp. 21-5805(c) may contain a superfluous word, the legislative intent is clear. It is to prohibit would be shoplifters from possessing specifically designed tools of the trade.

Using this interpretation of the statute, the COA held that the state failed to provide evidence that Ms. Justice-Puett possessed any such device and, therefore, reversed the conviction.

[Update: the state did not file a PR and the mandate issued on October 21, 2019.]