State v. Woolverton

No. 113,211

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

IAN WOOLVERTON,
Appellant.


SYLLABUS BY THE COURT

1.
A defendant in a misdemeanor case has a right to a jury trial under the Sixth
Amendment to the United States Constitution and section 10 of the Kansas Constitution
Bill of Rights if the offense is categorized as a serious offense but not if the offense is
categorized as a petty offense.

2.
An offense is presumed to be a petty offense if the maximum term of
imprisonment is 6 months or less, but an otherwise petty offense may be considered a
serious one if the legislature has adopted additional penalties so severe as to clearly
reflect its judgment that the offense is a serious one.

3.
A misdemeanor domestic-battery offense—punishable by no more than 6 months
in jail, a fine of up to $500, participation in and payment for a domestic-violence-
offender assessment, and compliance with the assessment's recommendations—is a petty
offense for which there is no constitutional right to a jury trial.

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4.
Whether a defendant has a statutory right to a jury trial in a misdemeanor case
depends on whether the defendant requests the jury trial within the time frame set out by
statute. Without that request, the defendant's statutory jury-trial right is not violated when
the case is tried to a judge sitting without a jury.

Appeal from Johnson District Court; JAMES E. PHELAN, judge. Opinion filed April 29, 2016.
Affirmed.

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 Constitution and section 10 of the
Kansas Constitution Bill of Rights. If it's a petty offense, he has no constitutionally based
jury-trial right, and his conviction stands.

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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 Court cases. See State 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 136 S. Ct. 633
(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), and Lewis v. United States, 518 U.S. 322, 116 S. Ct. 2163, 135 L. Ed. 2d 590
(1996). See generally 6 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. The Court concluded that it did
not have to determine "the exact location of the line" to decide Duncan, 391 U.S. at 161,
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. Accordingly, a
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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.
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. 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, 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, 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.

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
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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. 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. 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. 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, 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.

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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. See 18 U.S.C. § 922(g)(9) (2012). But the existence of a
federal statute 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. See 6 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
135 S. Ct. 59 (2014).
 Woolverton cites several statutes that provide rights or services to victims of
domestic violence. See K.S.A. 2015 Supp. 22-2307(b)(10) (requiring that law-
enforcement officers provide information to domestic-violence victims about their
rights and available resources); K.S.A. 2015 Supp. 44-1132 (protecting domestic-
violence victims from retaliation by employers for taking time off to seek services
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or to participate in the prosecution of their cases). Serving and protecting victims
does not increase the punishment to defendants.
 Woolverton notes that Kansas law requires that officers arrest a person when they
have probable cause to believe he or she has committed a domestic battery. See
K.S.A. 2015 Supp. 22-2307(b)(1). While true, that doesn't increase the punishment
beyond the 6-month limit; the time the defendant spends in jail before posting
bond will count toward the eventual sentence.
 Woolverton notes that K.S.A. 2015 Supp. 20-369 allows a court to assess a fee of
up to $100 against a domestic-violence offender if the local judicial district has set
up a fund to provide for domestic-violence programs. Even if we consider that fee
to be a fine—and thus punishment of the defendant—it would simply raise the
maximum possible fine for Woolverton's offense to $600, well under the fine
amounts for offenses the Supreme Court found petty in Blanton ($1,000) and
Nachtigal ($5,000).

Woolverton also argues generally that several other statutes or policies elevate the
seriousness of domestic-violence cases: Prosecutors must adopt policies to effectively
prosecute domestic violence, see K.S.A. 22-2309; significant public funds are spent to
combat domestic violence; law-enforcement officers must file offense reports with the
Kansas Bureau of Investigation for all domestic-violence calls, whether or not they make
an arrest, see K.S.A. 2015 Supp. 22-2307(b)(11); and law-enforcement officers are
encouraged or required to act on "lethality assessments" at the scene in domestic-violence
cases. But while these facts show that we take domestic violence seriously as that term is
commonly used, they do not affect the analysis when determining whether a right to a
jury trial exists under the Sixth Amendment. None of these statutes or policies increased
Woolverton's punishment in any significant way.

Woolverton makes one final argument to support his claim of a constitutionally
based jury-trial right: He notes that some felony sentences in Kansas can be shorter than
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6 months. That's true—for a defendant with no significant criminal history, convicted of
the lowest-level nondrug felony, the trial judge can choose a sentence of 5, 6, or 7
months. See K.S.A. 2015 Supp. 21-6804. But how other offenders are sentenced is not
the focus in determining whether a defendant has a Sixth Amendment jury-trial right.
Instead, we look to the maximum sentence allowed for a crime, not the sentence imposed.
See Lewis, 518 U.S. at 326. The maximum sentence that can be imposed for
Woolverton's offense, a first-time misdemeanor domestic battery, is 6 months. Neither
that sentence length nor any other punishment the Kansas Legislature has adopted for this
offense makes it a serious offense for jury-trial purposes.

Based on the analysis we've provided to this point in our opinion, we have
concluded that Woolverton had no constitutionally based jury-trial right. We turn next to
his argument that he was also denied his statutory right to a jury trial.

K.S.A. 22-3404(1) provides that "[t]he trial of misdemeanor 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 . . . ." The right granted by statute is limited
by the requirement that the defendant timely request it. Woolverton makes no claim that
he requested a jury trial before his trial to a judge took place.

Woolverton contends that his failure to request the jury trial should be excused
because no one told him he had that statutory right. In support of his claim that his case
could not be tried to a court unless he had been told he had a jury-trial right and expressly
waived that right, he cites to cases involving charges of more serious misdemeanors
where the maximum possible sentence was 12 months, not 6. E.g., State v. Bell, No.
110,550, 2014 WL 5801050 (Kan. App. 2014), rev. denied 301 Kan. ____ (2015); State
v. Marshall, No. 107,982, 2013 WL 3791689 (Kan. App. 2013). Thus, in each of those
cases, the defendant had a constitutional right to a jury trial. That's significant because a
defendant must be told about his or her constitutional right to a jury trial before he or she
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may properly give up that right. See State v. Lewis, 301 Kan. 349, 376-77, 344 P.3d 928
(2015); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Here, though,
Woolverton had no constitutional jury-trial right, and the statutory right only applies if
the defendant makes a timely jury-trial request. Since Woolverton didn't make a jury-trial
request, we find no violation of his statutory jury-trial right.

Our ruling should in no way be read to suggest that domestic violence is not a
serious matter. Nor, we can be sure, does the State intend its argument in this case to
make that suggestion. Domestic violence is a real, important, and serious problem, and
many laws at the state and federal level attest to this. All we are saying here is that the
penalties prescribed by the Kansas Legislature for this offense are within the category
defined as petty for the purpose of determining whether a defendant has a constitutional
right to a jury trial. Given those penalties, there is no constitutional right to a jury trial for
this offense. Since Woolverton did not request a jury trial under the statutory provision,
K.S.A. 22-3404(1), his case was properly tried to a judge sitting without a jury.

The district court's judgment is affirmed.