State v. Woolverton

• Decision Date: 29 April 2016
• Docket Number: No. 113,211.,113,211.
• Citation: State v. Woolverton, 52 Kan.App.2d 700, 371 P.3d 941 (Kan. App. 2016)
• Parties: STATE of Kansas, Appellee, v. Ian WOOLVERTON, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 700

371 P.3d 941

STATE of Kansas, Appellee,

v.Ian WOOLVERTON, Appellant.

No. 113,211.

Court of Appeals of Kansas.

April 29, 2016.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD–BURGER, P.J., GREEN and LEBEN, JJ.

LEBEN, J.

On first glance, it might seem the attorneys in this case got their briefcases switched.The prosecutor argues that a misdemeanor domestic-violence offense is not a serious one, while the defendant—who was convicted of that offense—argues that it is.

The reason the case has reached us in this odd posture is that the defendant was convicted in a trial to a judge, not a jury.He now seeks a do-over on the ground that he had a constitutional right to a jury trial—one that he never agreed to waive.And whether he had a constitutional right to a jury trial depends on whether the offense is categorized as a serious or a petty offense.If it's a serious offense, then he was entitled to a jury trial under the Sixth Amendment to the United States Constitutionandsection 10 of the Kansas ConstitutionBill of Rights.If it's a petty offense, he has no constitutionally based jury-trial right, and his conviction stands.

In this case, then, we don't use the term “serious” as we might use it in conversation.The terms “serious offense” and “petty offense” are terms of art, used in specific ways in decisions of the United States Supreme Court interpreting the Sixth Amendment.And since the Kansas Supreme Court has interpreted the jury-trial right under the Kansas Constitution identically to the United States Supreme Court's interpretation of the Sixth Amendment, we must determine whether misdemeanor domestic violence is a serious offense or a petty one based on those United States Supreme Courtcases.SeeState v. Carr,300 Kan. 1, 56, 331 P.3d 544(2014)(noting that Kansas has not analyzed its state constitutional provision granting jury-trial rights differently than the federal provision), rev'd in part on other grounds––– U.S. ––––, 136 S.Ct. 633, 193 L.Ed.2d 535(2016);State v. Lawson,296 Kan. 1084, 1091, 297 P.3d 1164(2013)(noting that Kansas has generally interpreted its state constitutional provisions identically with their federal counterparts).

We know that these phrases are terms of art from several United States Supreme Court opinions, including Duncan v. Louisiana,391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968);Baldwin v. New York,399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437(1970);Blanton v. North Las Vegas,489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550(1989), andLewis v. United States,518 U.S. 322, 116 S.Ct. 2163, 135 L.Ed.2d 590(1996).See generally6 LaFave, Israel, King & Kerr, Criminal Procedure§ 22.1(b), pp. 8–17 (4th ed.2015).In Duncan, which applied the Sixth Amendment's jury-trial provision to the states under the Fourteenth Amendment, the Court noted that “[s]o-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial provisions,” though “the boundaries of the petty offense category have always been ill-defined....”391 U.S. at 159, 160, 88 S.Ct. 1444.The Court concluded that it did not have to determine “the exact location of the line” to decide Duncan,391 U.S. at 161, 88 S.Ct. 1444, but in Baldwin, it determined that “no offense can be deemed ‘petty’ ... where imprisonment for more than six months is authorized.”399 U.S. at 69, 90 S.Ct. 1886.Accordingly, a jury-trial right exists when the authorized penalty is more than 6 months.In our case, though, the maximum penalty is 6 months, so a jury trial is not required under that test.

But that doesn't end the analysis.In Blanton,the Court said that although we“presume” for purposes of the Sixth Amendment that an offense with a maximum prison term of 6 months or less is petty, that presumption may be rebutted.489 U.S. at 542–43, 109 S.Ct. 1289.A defendant will still be entitled to a jury trial if the offense carries statutory penalties in addition to the jail term that “are so severe that they clearly reflect a legislative determination that the offense is a ‘serious' one.”489 U.S. at 538, 109 S.Ct. 1289.Even so, the Blanton Court emphasized that “[p]rimary emphasis ... must be placed on the maximum authorized period of incarceration,”489 U.S. at 542, 109 S.Ct. 1289, and there has not yet been a case in which the Court found that an offense with a maximum authorized incarceration period of 6 months was a serious one so as to require a jury trial under the Sixth Amendment.In Lewis,the Court reaffirmed these rules, 518 U.S. at 326–27, 116 S.Ct. 2163, and held that a defendant had no jury-trial right when charged with multiple petty offenses in a single prosecution, even though he could have received a total sentence of more than 6 months.518 U.S. at 327–30, 116 S.Ct. 2163.

In sum, then, we look primarily to the maximum authorized incarceration period set by the legislature for the offense.If it is no more than 6 months, then the defendant has no constitutional jury-trial right unless any extra statutory penalties are severe enough to clearly show a legislative determination that the offense is a serious one.

We turn now to our case.The maximum punishment is incarceration for 6 months.K.S.A. 2015 Supp. 21–5414(b)(1).So the offense is presumed to be petty unless additional statutory penalties are severe enough to change the outcome.

The primary statute setting out penalties for this offense provides that the court can also fine the defendant from $200 to $500 or may order the offender to undergo a domestic-violence-offender assessment and follow its recommendations.K.S.A. 2015 Supp. 21–5414(b)(1).In addition, K.S.A. 2015 Supp. 21–6608(a) allows the court to impose up to 2 years of probation, in lieu of a jail sentence, in all misdemeanor cases;K.S.A. 2015 Supp. 21–6604(p) requires that the court order those convicted of domestic violence to “[u]ndergo a domestic violence offender assessment,” comply with any recommendations, and pay the cost for the assessment.

These punishments are no more severe than ones the United States Supreme Court has found to correspond to petty offenses.In Blanton, in addition to any jail sentence, the offender had to pay a fine ranging from $200 to $1,000, automatically lost his or her driver's license for 90 days, and had to attend and pay for an alcohol-abuse-education course.489 U.S. at 539–40, 109 S.Ct. 1289.The Court held that these additional consequences didn't turn the otherwise-petty offense into a serious one for Sixth Amendment purposes.489 U.S. at 543–45, 109 S.Ct. 1289.Similarly, in United States v. Nachtigal,507 U.S. 1, 113 S.Ct. 1072, 122 L.Ed.2d 374(1993), a defendant convicted of a DUI offense in a national park faced a maximum fine of $5,000, up to 6 months in prison, or (as an alternative to prison) up to 5 years on probation.Despite the high fine and long probation term, the Supreme Court held that the DUI was a petty offense because a fine and probation are “far less intrusive than incarceration.”507 U.S. at 5, 113 S.Ct. 1072.The Court also noted that while a variety of probation requirements might be placed on the defendant, “discretionary probation conditions ... do not approximate the severe loss of liberty caused by imprisonment for more than six months,”507 U.S. at 5, 113 S.Ct. 1072, and thus do not make the offense a serious one for jury-trial purposes.

The penalties established by statute for Woolverton's offense are no more serious than those found in Blanton and Nachtigal.Accordingly, if we look only at the punishments directly established by statute for this offense, it is a petty offense, and Woolverton had no constitutional right to a jury trial.

But Woolverton argues that other statutes provide additional punishments that are so severe as to transform his offense from petty to serious.We do not find that any of these statutes increase the punishment for Woolverton's offense in a way that would affect his right to a jury trial:

• Woolverton notes that federal law prohibits domestic-violence offenders from purchasing firearms.See18 U.S.C. § 922(g)(9)(2012).But the existence of a federalstatute says nothing about how the Kansas Legislature views the offense, and we look to the punishments it has established to determine the seriousness of the offense.Woolverton has cited no case in which a court has considered the combination of federal and state statutory penalties to determine whether a defendant has a jury-trial right.Moreover, any limitation on Woolverton's ability to buy firearms is a collateral consequence of the conviction, not the direct punishment for it.Collateral consequences are not considered when determining whether a jury-trial right exists.See6 LaFave, Israel, King & Kerr, Criminal Procedure§ 22.1(b), p. 12 & n. 48(“[C]ollateral consequences do not count.”)(citing cases).Applying this rule, the Nevada Supreme Court held that federal firearms restrictions did not convert Nevada's domestic-battery offense—punishable by up to 6 months in jail—from a petty offense to a serious one for jury-trial purposes.Amezcua v. Eighth Judicial District Court,319 P.3d 602, 605(Nev.)(“[R]estrictions on possession of a firearm and deportation ... are collateral consequences of a conviction: they arise out of federal law, not the Nevada statute that proscribes first-offense domestic battery.[Citations omitted.]”), cert. denied[––– U.S. ––––], 135 S.Ct. 59[190 L.Ed.2d 57](2014).

• Woolverton cites several statutes that provide rights or services to victims of domestic violence.SeeK.S.A. 2015 Supp. 22–2307(b)(10)(requiring that law-enforcement officers provide information to

...