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.]