State v. Bell
| Decision Date | 14 July 1995 |
| Docket Number | No. 71875,71875 |
| Citation | 899 P.2d 1000,258 Kan. 123 |
| Parties | STATE of Kansas, Appellee, v. Michael J. BELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
Although ordinarily appellate courts will not consider an issue which the parties do not raise in the district court or on appeal, the court does have power to do so in exceptional circumstances where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.
John Frydman, Lawrence, argued the cause and was on the briefs, for appellant.
Gayle B. Larkin, Asst. Dist. Atty., argued the cause, and Mark A. Knight, Dist. Atty., Frank D. Diehl, Asst. Dist. Atty., and Carla J. Stovall, Atty. Gen., were with her on the briefs, for appellee.
Michael J. Bell appeals his convictions of attempted criminal trespass, a class C misdemeanor, and stalking, a class B misdemeanor. He was sentenced to three months' incarceration for the stalking conviction and one month's incarceration for the attempted criminal trespass conviction, with the terms to run consecutively. The Court of Appeals reversed and remanded for jury trial on the ground that where potential imprisonment exceeds six months, the right to jury trial can be waived only by defendant personally after he or she has been advised of the right. State v. Bell, 20 Kan.App.2d 193, 884 P.2d 1164 (1994). This court granted the State's petition for review.
The facts are set out in the opinion of the Court of Appeals and are undisputed. Defendant was charged with one count of attempted criminal trespass, in violation of K.S.A.1993 Supp. 21-3301 and K.S.A.1993 Supp. 21-3721(a)(1)(B), and one count of stalking, in violation of K.S.A.1993 Supp. 21-3438. At arraignment in December 1993, he pled not guilty.
On February 22, 1994, defendant's case was transferred to another division of the district court for trial setting. On March 11, 1994, the case was set for trial to begin on April 11. Also on March 11, defendant filed a written request for a jury trial. The district court concluded that the request was not timely and denied the request. On April 11, defendant was tried by the district court judge and found guilty on both counts.
On April 15, defendant filed a notice of appeal. On May 5, he was sentenced to jail custody for three months on the stalking conviction and for a consecutive period of one month on the attempted criminal trespass conviction. "The defendant has apparently served the sentence." 20 Kan.App.2d at 194, 884 P.2d 1164.
The single issue raised by defendant in the Court of Appeals was whether his request for jury trial was timely under K.S.A.1993 Supp. 22-3404. The statute provides in pertinent part: "(1) The trial of misdemeanor and traffic offense cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel." The Court of Appeals stated:
20 Kan.App.2d at 196, 884 P.2d 1164.
The Court of Appeals agreed with the reasoning of the trial court, as far as it went. The Court of Appeals' opinion then took the following turn:
20 Kan.App.2d at 201-02, 884 P.2d 1164.
The State's petition for review of the decision of the Court of Appeals focused exclusively on the constitutional right to trial by jury, as do the supplemental briefs filed by defendant and the State in this court. Supreme Court Rule 8.03(g)(1) (1994 Kan.Ct.R.Annot. 47) provides in pertinent part:
Defendant neither responded to the State's single-issue petition for review nor filed a cross-petition and did not raise the statutory interpretation issue in his supplemental brief; therefore, it is considered abandoned. For that reason, the Court of Appeals' rationale and finding with regard to the statutory interpretation is not disputed and is controlling in the appeal.
The single issue raised by the State in its petition for review is whether a defendant charged with two misdemeanors which carry aggregated penalties potentially exceeding six months' imprisonment is entitled to a trial by jury. The Court of Appeals based its decision on State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975), and State v. Jones, 19 Kan.App.2d 982, 879 P.2d 1141 (1994), both of which involved a single offense which carried a potential penalty exceeding six months' imprisonment. The Court of Appeals simply assumed the answer to the basic question whether penalties for multiple petty offenses should be aggregated for the purpose of determining the right to a jury trial. The parties' supplemental briefs are directed solely to this issue.
The question we must first answer is whether the Court of Appeals erred in considering this issue sua sponte. In State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), we noted that the question had previously been before this court on several occasions. We concluded:
"[A]lthough ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights." 230 Kan. at 600-01, 640 P.2d 1198.
We further noted that in Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. p 3, 434 P.2d 858 (1967), this court recognized the following three exceptions to the general rule:
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...to the preservation of a defendant's fundamental rights even if that issue is not properly preserved for appeal. State v. Bell, 258 Kan. 123,126, 899 P.2d 1000 (1995). The defendant relies upon the cases of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and Mason v. Sta......
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Appellate Decisions
...an appellate court will not consider an issue raised for the first time in a Rule 6.09(b) letter. Nonetheless, citing State v. Bell, 258 Kan. 123 (1995), an analogous scenario where court of appeals reviewed sua sponte an issue and review was granted with supplemental briefing to Kansas Sup......