State v. Bowers
| Decision Date | 25 September 2009 |
| Docket Number | No. 100,805.,100,805. |
| Citation | 216 P.3d 715 |
| Parties | STATE of Kansas, Appellant, v. Albert L. BOWERS, III, Appellee. |
| Court | Kansas Court of Appeals |
Lydia Krebs, of Kansas Appellate Defender Office, for the appellant.
No appearance for the appellee.
Before McANANY, P.J., PIERRON and LEBEN, JJ.
Albert L. Bowers, III, appeals from his convictions following a bench trial of felony driving under the influence of alcohol or drugs, and other traffic-related charges. Bowers alleges the district court erred in conducting the trial without first advising him of his right to a jury trial.
Bowers was charged with one count each of driving under the influence of alcohol or drugs (fourth or subsequent conviction) (DUI), driving in excess of the posted speed limit, transporting an open container, failing to produce a driver's license, driving in violation of his driving restrictions, and failing to maintain insurance.
During a status hearing, Bowers' counsel stated, "Judge, we're goin' to ask the court for a trial." When asked whether he was referring to a jury or bench trial, counsel responded, "[T]rial to the court, Judge." The district court made no further comments other than to set a trial date.
Following a bench trial, Bowers was convicted of all charges with the exception of transporting an open container. The district court sentenced Bowers to 12 months in jail and imposed a $2,500 fine for the DUI conviction. The court also imposed a fine for speeding, 30-day jail sentences for failure to produce a driver's license and driving in violation of restrictions, and a 6-month jail sentence and $300 fine for failing to maintain insurance. The court ordered the sentences to run consecutively.
Bowers appeals.
We note that the State moved for summary disposition without briefing under Supreme Court Rule 7.041 (2008 Kan. Ct. R Annot. 55). The motion was denied because Bowers had already filed his brief, but this court found that the State's motion would serve as notice that it would not file an appellee's brief. The State's motion cited what it claimed to be controlling authority and seems to indicate the State concurs with Bowers' argument.
Bowers did not raise the issue of a jury trial waiver to the district court. Generally, even constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). There are, however, exceptions to this general rule, including: (1) when 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; and (3) the judgment of the trial court may be upheld despite its reliance on the wrong ground or reason. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
This court has noted "[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). There can be little doubt, therefore, that the consideration of the denial of a right to a jury trial is necessary to prevent the denial of a fundamental right.
A criminal defendant's right to a jury trial is guaranteed by constitution and statute. U.S. Const. Amend. VI; Kan. Const. Bill of Rights §§ 5, 10. K.S.A. 22-3403(1) requires all felony cases be tried to a jury unless the defendant and prosecuting attorney, with the consent of the court, submit the matter to a bench trial.
The right to a jury trial may be waived if it is done so voluntarily and knowingly. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). ...
To continue reading
Request your trial
-
State v. Chavez-Majors
......Duncan , 44 Kan. App. 2d 1029, 1038, 1040–41, 242 P.3d 1271 (2010) (record was silent regarding whether defendant was advised of the right to jury trial by the district court and whether there was an express waiver in writing or on the record); State v. Bowers , 42 Kan. App. 2d 739, 740–41, 216 P.3d 715 (2009) (district court did not advise defendant of 402 P.3d 1176 right to jury trial and attorney's request for bench trial did not waive right); State v. Larraco , 32 Kan. App. 2d 996, 1001–02, 93 P.3d 725 (2004) (district court did not advise ......
-
State of Kan. v. Beaman
...of Appeals subsequently reviewed a waiver issue after concluding it involved a fundamental right in State v. Bowers, 42 Kan.App.2d 739, 216 P.3d 715 (2009). Bowers did not cite or otherwise acknowledge Luna. This court recently addressed whether our Luna decision created a bright-line rule ......
-
State v. Johnson
...But, more importantly, there is no more fundamental right in the United States than the right to a jury trial. State v. Bowers , 42 Kan.App.2d 739, 740, 216 P.3d 715 (2009). This is an issue that cannot be ignored. We now look to the question of invited error.After the judge admitted to sle......
-
State v. Barnes
......Clemons, 273 Kan. 328, 338, 45 P.3d 384 (2002), in which the issue was raised in an argument for new trial, than to State v. Luna, 271 Kan. 573, 577, 24 P.3d 125 (2001), in which the issue never came up in the district court. See also State v. Bowers", 42 Kan.App.2d 739, 740, 216 P.3d 715 (2009) (Court of Appeals examines waiver of jury trial despite failure to preserve because fundamental right implicated); State v. Larraco, 32 Kan.App.2d 996, 999–1000, 93 P.3d 725 (2004) (same). We therefore consider the issue preserved for our review. \xC2"......