State v. Umphenour

• Decision Date: 30 March 2015
• Docket Number: 2015 Opinion No. 15,Docket No. 41497
• Court: Idaho Court of Appeals
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. GERALD K. UMPHENOUR, Defendant-Appellant.

STATE OF IDAHO, Plaintiff-Respondent, v. GERALD K. UMPHENOUR, Defendant-Appellant.

Docket No. 41497

2015 Opinion No. 15

COURT OF APPEALS OF THE STATE OF IDAHO

March 30, 2015

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Second Judicial District, State of Idaho, Clearwater County. Hon. Michael J. Griffin, District Judge.

Judgment of conviction for possession of methamphetamine, vacated, and case remanded.

Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.

____________________

LANSING, Judge

Gerald K. Umphenour appeals from his conviction for possession of methamphetamine, contending that the district court committed fundamental, structural error by conducting a court trial without first obtaining Umphenour's personal waiver of his constitutional right to a jury trial. We vacate the conviction.

I.BACKGROUND

Umphenour was charged with felony possession of methamphetamine, misdemeanor resisting and obstructing an officer, and misdemeanor possession of an open container of alcohol. At a February 19, 2013 pretrial hearing, the parties informed the district court of a plea agreement calling for Umphenour to plead guilty to the felony possession charge and for theState to dismiss the two misdemeanor charges. During the plea colloquy, however, the district court apparently was unsatisfied with Umphenour's responses to its questions and the court declined to accept the guilty plea. Trial was rescheduled for May 22, 2013.

On the morning of May 22, the parties informed the court that they had reached another agreement. The following colloquy then occurred:

THE COURT: Let's go on the record, please. For the record this is File No. CR2012-488. Mr. Umphenour is here in court with Mr. Kovis, his counsel; and Mr. Tyler is representing the State.

Counsel indicated before we came in that you had discussed this case further, and that there was a proposal that the parties stipulate to certain facts, and that the Court make findings based upon those facts. Is that generally what counsel wanted to do?

MR. KOVIS: Yes, Your Honor. I talked with Mr. Umphenour, and I've gone over your proposed jury Instruction No. 2, which had the elements of the possession of a controlled substance elements one, two, three, and four: On or about June 6th; in the State of Idaho; Gerald K. Umphenour possessed any amount of methamphetamine; and four, the defendant either knew it was methamphetamine or believed it was a controlled substance. Mr. Umphenour would stipulate to all of that being true.

THE COURT: Mr. Tyler, is the State also stipulating to those facts?

MR. TYLER: Yes, Your Honor.

THE COURT: Mr. Umphenour, you've had enough time to discuss this with your attorney; is that right?

THE DEFENDANT: Yeah, we talked this morning.

THE COURT: Okay. Well, after talking to him this morning at this time are you stipulating or agreeing that those facts that were just recited by Mr. Kovis are, in fact, true?

THE DEFENDANT: Yeah.

THE COURT: Okay, and has anybody promised you anything, Mr. Umphenour, as far as what would happen if you stipulated to those facts?

THE DEFENDANT: No.

MR. KOVIS: I just want to be clear, I did tell Mr. Umphenour that the two misdemeanor cases would be dismissed. The sentencing would be down the road; that he would not be incarcerated today. It's an open sentencing. We can argue that if he's placed on probation he can apply for unsupervised probation so he can go to North Dakota, or if he's on supervised probation he can ask for an interstate compact, whatever you call it, so that he can go to North Dakota.

THE COURT: Okay. Yeah, and I forgot about the two misdemeanors. It's my understanding those two misdemeanors would be dismissed, and that's your understanding, Mr. Umphenour?

THE DEFENDANT: I thought that one--I thought the one open container was already dismissed.

THE COURT: Well, if it wasn't it's going to be, how is that? I don't know. I would have to go look through the file. But if it's not dismissed it'sgoing to be dismissed. And then sentencing would not occur today, but obviously you would be free to--you wouldn't be incarcerated. You would be free to come back at the time of sentencing, and then sentencing would be--after I listen to you and listen to the attorneys I would have to decide what type of sentence would be appropriate in this case. And so it's my understanding that both counsel want me to make a finding with respect to guilt or innocence based upon the stipulation that's been entered into by both parties?

MR. KOVIS: That's correct, Your Honor.

MR. TYLER: Yes, Your Honor.

THE COURT: Based on that stipulation the Court does find that on or about the 6th day of June, 2012; in the State of Idaho; Gerald K. Umphenour possessed some amount or any amount of methamphetamine; and that Mr. Umphenour either knew it was methamphetamine or believed it was a controlled substance. Based upon those stipulated facts and findings, the Court does find that Mr. Umphenour is guilty of the offense in count one, that is, possession of a controlled substance. Is the State asking that counts two and three be dismissed at the time of sentencing?

MR. TYLER: Yes, Your Honor, so moved.

The district court thereafter sentenced Umphenour to a unified four-year term of imprisonment, with six months fixed. Umphenour appeals, contending that the district court violated Article I, § 7 of the Idaho Constitution and the Sixth Amendment to the United States Constitution by conducting a court trial without first obtaining Umphenour's personal waiver of his right to a jury trial.¹

II.ANALYSIS

Umphenour did not file a motion for a new trial nor otherwise raise the issue of a violation of his right to a jury trial in the district court. Therefore, in order to obtain relief on appeal, Umphenour must demonstrate fundamental error. To do so, "(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information notcontained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings." State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010) (footnote omitted).

A. Clear Violation of a Constitutional Right

The Sixth Amendment to the United States Constitution and Article I, § 7 of the Idaho Constitution both preserve a criminal defendant's right to trial by jury. Unlike the Sixth Amendment, however, Article I, § 7 of the Idaho Constitution also directs how that right to a jury trial may be waived. It states:

The right of trial by jury shall remain inviolate . . . . A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law.

The requirements for a valid waiver of a criminal defendant's right to a jury trial was addressed by a special panel of this Court composed of one Supreme Court justice, one senior Supreme Court justice, and one district judge in State v. Swan, 108 Idaho 963, 703 P.2d 727 (Ct. App. 1985). There, the defendant's attorney, on the record in open court at the arraignment and again on the first day of trial, stipulated in the defendant's presence to waive the defendant's jury trial right and consented to a court trial. Id. at 964 n.1, 703 P.2d at 728 n.1. The district court thereupon conducted a court trial and found the defendant guilty. The defendant appealed, contending that his personal waiver in open court was required for a valid waiver of his jury trial right and that his attorney could not effectively waive that right on the defendant's behalf. Id. at 964, 703 P.2d at 728. This Court agreed that a defendant's personal waiver is required, and therefore reversed the conviction. Id. at 966, 703 P.2d at 730.

Although the precise source of that requirement is not clearly articulated in the Swan opinion, we conclude that its holding that a defendant's personal assent to a waiver is necessary was grounded upon Article I, § 7 of the Idaho Constitution. This is evident from the Swan court's discussion of State v. Davis, 104 Idaho 523, 661 P.2d 308 (1983), where the Idaho Supreme Court concluded that a criminal defendant could waive the jury trial protections of Article I, § 7 in favor of a court trial even though the constitutional provision in effect at thetime² did not expressly allow a defendant to do so in a felony case. In Swan, this Court framed the issue presented as one not decided in Davis--how, in consideration of the newly amended Article I, § 7, the right to a jury trial is effectively waived in a felony case. Swan, 108 Idaho at 965, 703 P.2d at 929. After considering the importance of the fundamental right to a jury trial as expressed by the United States Supreme Court and authority from other jurisdictions (whether based upon statute, court rule, or state constitution) requiring a defendant's personal waiver, this Court held that a waiver may not be accepted "unless the defendant, after being advised by the court of his right to a trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record." Id. at 966, 703 P.2d at 730 (quoting American Bar Association Standards for Criminal Justice, Vol. III, ch. 15, Trial by Jury, § 1.2(b) (1980)). The Court opined that, "a requirement that the court personally address the defendant will not constitute an undue burden on the court where this very important right is at issue."³

Here, while the district court obtained Umphenour's agreement to the...