Tush v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,662

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEREMIAH CHARLES TUSH,
Appellee,

v.

STATE OF KANSAS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed February 10, 2017.
Reversed and remanded with directions.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellant.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

MALONE, J.: The State appeals the district court's decision granting Jeremiah
Charles Tush's K.S.A. 60-1507 motion and finding that Tush is entitled to a new trial.
Specifically, the district court ruled that Tush is entitled to a new trial because the trial
court failed to adequately advise Tush of his right to a jury trial prior to him waiving that
right. On appeal, the State first argues that the district court erred in finding that Tush's
amended claim that his jury trial waiver was inadequate related back to the claim Tush
made in his original K.S.A. 60-1507 motion. Second, the State argues that Tush
abandoned his claim that his jury trial waiver was inadequate in his direct appeal. Third,
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the State argues that the district court erred in finding that the trial court failed to
adequately advise Tush of his right to a jury trial prior to him waiving that right.

We agree with the State that Tush's amended claim that his jury trial waiver was
inadequate did not relate back to the claim Tush made in his original K.S.A. 60-1507
motion; thus, the district court erred in considering the untimely claim in the first place.
In the alternative, we agree with the State that the district court erred in finding that the
trial court failed to adequately advise Tush of his right to a jury trial prior to him waiving
that right. Thus, we reverse the district court's decision granting Tush a new trial and
remand with directions for the district court to deny Tush relief under K.S.A. 60-1507.

FACTUAL AND PROCEDURAL BACKGROUND

The facts relating to the underlying criminal prosecution are set forth in State v.
Tush, No. 106,558, 2012 WL 6061557, at *1-3 (Kan. App. 2012) (unpublished opinion),
rev. denied 297 Kan. 1256 (2013). On June 20, 2009, the State charged Tush with making
a false information, identity fraud, manufacturing methamphetamine, battery on a law
enforcement officer, obstruction of official duty, and possession of a precursor drug. The
charges arose from an incident wherein the police found Tush in a motel room with a
methamphetamine lab. Tush filed a motion to suppress asserting that the drug-related
evidence was obtained after an illegal search and seizure. The district court denied the
motion to suppress.

On August 6, 2010, Tush waived his right to a jury trial at a pretrial conference
involving both Tush and his codefendant, Amy Crutchfield. Tush's trial attorney, Zane
Todd, was not in the courtroom at the beginning of the hearing; however, Tush was
present. During the hearing, Judge John P. Bennett advised Crutchfield of her right to a
jury trial, including a statement telling her that "[y]ou do have a right to have a 12-person
jury but you can waive that right." Crutchfield agreed to waive her right to a jury trial,
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and her case was scheduled for a bench trial. A few moments later, with Todd now
present in the courtroom, Judge Bennett addressed Tush about waiving his right to a jury
trial, and the following exchange took place:

"MR. TODD: Zane Todd for Mr. Tush who appears in person.
"We're willing to waive and also want to waive the jury trial and set for a bench
trial.
"THE COURT: Mr. Tush, you heard what we talked about in the Crutchfield
case about the right to have a jury trial. You understand you have that right and you can
give it up if you want and your attorney indicates you want to do that rather than try your
case to a jury, just try it to the Court.
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. You agree with that?
"THE DEFENDANT: Yes, I do.
"MR. GLASSER: For the record, the State is fine waiving jury trial.
"THE COURT: The Court will set for the Court trial and when do you want to
do that?"

After a bench trial, Judge Bennett found Tush guilty on all counts except making a
false information and sentenced him to a 176-month term of imprisonment. Tush
appealed his convictions to this court, challenging the denial of his motion to suppress,
but his convictions were affirmed on appeal. 2012 WL 6061557, at *9. The Supreme
Court denied Tush's petition for review on May 20, 2013.

On April 15, 2014, Tush timely filed a pro se motion under K.S.A. 60-1507. In the
motion, Tush alleged four grounds for challenging his convictions and sentence. The
grounds were broadly alleged as: (1) "Ineffective Assistance of Counsel"; (2) "Illegally
sentenced on count VI 'Possession of a Precursor Drug" [sic]; (3) "Courts failed to
provide equal protection of the law"; and (4) "The assessment of the amount of
restitution." Tush's ineffective assistance of counsel claim included a specific claim that
his trial counsel coerced him "into forsaking [sic] his rights to a jury trial by siding with
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the D.A. in the conveyance of a theory of possibly doubling the sentence which put fear
into defendant [sic] to do whatever not to get a massive amount of time."

The State filed a motion to dismiss Tush's K.S.A. 60-1507 motion on August 25,
2014. Tush's appointed counsel thereafter completed a "Response to State's Motion to
Dismiss." According to the certificate of service, Tush's response was sent to the State on
November 1, 2014; however, it was not filed with the court until March 25, 2015. In his
response to the State's motion to dismiss, and in conjunction with Tush's ineffective
assistance of counsel claim, Tush briefly argued that he had not been properly "advised as
to his right to a trial by jury." This argument was the first mention in any of Tush's
K.S.A. 60-1507 pleadings of any claim that his jury trial waiver was inadequate.

On March 5, 2015, the district court held a hearing on the State's motion to
dismiss. At the beginning of the hearing it was discovered that Tush's attorney had failed
to properly file the response to the State's motion to dismiss, and the court was seeing the
response for the first time at the hearing. Also, Tush acknowledged he was "conceding all
claims" in his original K.S.A. 60-1507 motion except those claims included in his
response to the State's motion to dismiss concerning ineffective assistance of counsel.

The idea of the inadequate jury trial waiver being raised as its own separate claim
was first mentioned by Tush's counsel at the hearing on the motion to dismiss when she
explained to the court how Todd was ineffective in regard to Tush's jury trial waiver.
Specifically, Tush's K.S.A. 60-1507 counsel stated, "there is some possibility that . . . the
waiver was not proper." The district court immediately recognized this was a different
claim from the claims set forth in the original K.S.A. 60-1507 motion. Nevertheless, the
district court determined that it would grant an evidentiary hearing on Tush's ineffective
assistance of counsel claims, including his original claim that his trial counsel coerced
him into waiving his jury trial and his new claim that his jury trial waiver was inadequate.

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On April 3, 2015, Tush filed a document entitled "Petitioner's Request for Leave
of Court to Amend His K.S.A. 60-1507 Petition Pursuant TO [] K.S.A. 60-215(b)." Tush
requested the district court to allow him to amend his K.S.A. 60-1507 motion to include a
separate claim that his jury trial waiver was inadequate. Tush argued that his amended
claim that his jury trial waiver was inadequate related back to the claim in his original
K.S.A. 60-1507 motion that his trial counsel coerced him into waiving his jury trial.

The district court held an evidentiary hearing on all outstanding claims on May 7,
2015. At the beginning to the hearing, the district court found that Tush's newly raised
claim that his jury trial waiver was inadequate related back to the claim in his original
K.S.A. 60-1507 motion that his trial counsel coerced him into waiving his jury trial.
However, the district court ruled that other amended claims asserted by Tush did not
relate back to any claims he made in the original K.S.A. 60-1507 motion and would not
be considered by the court. Tush and Todd both testified at the hearing. After hearing the
evidence, the district court took the matter under advisement.

On October 7, 2015, the district court filed an order granting relief to Tush on his
claim that the trial court failed to adequately advise Tush of his right to a jury trial prior
to him waiving that right. The district court first found "that the adequacy of [Tush's] jury
trial waiver [claim] does relate back to his claim that defense counsel coerced him into
waiving his right to a jury trial." Then, after reviewing the record before the district court,
the court agreed with Tush's newly asserted claim "that his waiver of jury trial was
ineffective because he was not adequately informed by the trial court of his jury trial
rights." In making this finding, the district court focused on the fact that there was no way
of knowing whether Tush was paying attention to Judge Bennett when he advised
Crutchfield that she had a right to a jury trial. Accordingly, the district court found that
Tush "is entitled to a new trial." The district court denied Tush relief on his remaining
claims including his claim that Todd unduly coerced him into waiving his jury trial. The
State timely appealed the district court's ruling. Tush did not file a cross-appeal.
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DID TUSH'S AMENDED CLAIM RELATE BACK TO HIS ORIGINAL MOTION?

The State first argues that the district court erred in finding that Tush's amended
claim that his jury trial waiver was inadequate related back to the original claim in his
K.S.A. 60-1507 motion that his trial counsel coerced him into waiving his right to a jury
trial. The State points out that Tush never formally amended his K.S.A. 60-1507 motion
to assert a claim that his jury trial waiver was inadequate. Tush did not file his request for
leave to amend his K.S.A. 60-1507 motion until April 3, 2015, and the district court did
not formally allow the amendment prior to the evidentiary hearing. The State contends
that Tush's amended claim does not meet the standards for relation back of amendments
under K.S.A. 60-1507 as outlined in Thompson v. State, 293 Kan. 704, 713, 270 P.3d
1089 (2011). Thus, the State argues that the amended claim was untimely and the district
court erred in considering the claim.

Tush argues that the district court correctly found that his amended claim that his
jury trial waiver was inadequate related back to his original claim that his trial counsel
coerced him into waiving his right to a jury trial. Thus, Tush argues that the amended
claim was timely and properly considered by the district court. Tush made no claim in
district court and he makes no claim on appeal that the time limitation for his amended
claim should have been extended to prevent manifest injustice. See K.S.A 60-1507(f)(2).

Kansas appellate courts exercise de novo review when reviewing the district
court's legal conclusions in a K.S.A. 60-1507 motion. Thompson, 293 Kan. at 709.
Moreover, the issue of whether Tush's amended claim relates back to his original K.S.A.
60-1507 motion is controlled by K.S.A. 2015 Supp. 60-215(c). Interpretation of a statute
is a question of law over which appellate courts have unlimited review. Neighbor v.
Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

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Tush's original K.S.A. 60-1507 motion was timely filed on April 15, 2014, within
1 year of the final order in his direct appeal. See K.S.A. 60-1507(f)(1). Tush's original
motion included a claim that his trial counsel coerced him into waiving his jury trial. The
earliest mention of Tush's amended claim that the trial court failed to adequately advise
him of his right to a jury trial was in Tush's response to the State's motion to dismiss,
filed on March 25, 2015, well after the 1-year deadline for Tush to file a timely K.S.A.
60-1507 motion. Thus, the district court could not consider the merits of Tush's untimely
claim that his jury trial waiver was inadequate without finding that the amended claim
related back to Tush's original motion. See K.S.A. 2015 Supp. 60-215(c).

Pursuant to K.S.A. 2015 Supp. 60-215(c)(2), a claim asserted in an amended
pleading relates back to the date of the original pleading when the "amendment asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set out, or
attempted to be set out, in the original pleading." See Thompson, 293 Kan. at 713.
However, "[a]n amendment to a motion for relief under K.S.A. 60-1507 that asserts a
new ground for relief which is supported by facts that differ in both time and type from
those grounds set forth in the original motion does not relate back to the date of the
original motion so as to circumvent the 1-year limitation of K.S.A. 60-1507(f)(1)." State
v. Pabst, 287 Kan. 1, Syl. ¶ 7, 192 P.3d 630 (2008).

Based on the record presented in this case, we agree with the State that Tush's
amended claim that his jury trial waiver was inadequate did not properly relate back to
his original claim that his trial counsel coerced him into waiving his right to a jury trial.
The conduct, transaction, or occurrence set out in Tush's original pleading is that his trial
counsel coerced him into waiving his jury trial by siding with the prosecutor and
convincing Tush that his sentence would double if his case went to a jury trial. As the
State correctly asserts, the conduct described in Tush's original claim involves the
relationship and discussions Tush had with his trial attorney, Todd, and the discussions
Todd had with the prosecutor prior to the jury trial waiver in open court. The actions of
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Judge Bennett in advising Tush of his right to a jury trial and in accepting Tush's jury
trial waiver are not implicated in any way in his original claim.

Tush's amended claim is that Judge Bennett failed to adequately advise Tush of his
right to a jury trial prior to him waiving that right. The conduct, transaction, or
occurrence set out in Tush's amended claim relates solely to the adequacy of Tush's jury
trial waiver in open court when Judge Bennett addressed Tush and explained his right to
a jury trial and asked Tush whether he wanted to waive that right. This claim has nothing
to do with conversations between Todd and the prosecutor prior to the waiver in open
court and whether Tush was coerced or pressured into waiving his right to a jury trial by
the threat of receiving a longer sentence if he exercised that right.

The only remote connection between the two claims is that they both relate to the
jury trial waiver, but that connection alone is insufficient to meet the standards for
relation back of amendments under K.S.A. 2015 Supp. 60-215(c). The evidence that must
be examined to establish each claim is different, and Tush's new ground for relief is
supported by facts that differ in both time and type from those grounds set forth in the
original motion. See Pabst, 287 Kan. at 25. The two claims do not arise out of the same
conduct, transaction, or occurrence in order for the amended claim to relate back to the
date of the original pleading. See Thompson, 293 Kan. at 713.

We conclude that the district court erred in finding that Tush's amended claim that
his jury trial waiver was inadequate related back to his original claim that his trial counsel
coerced him into waiving his right to a jury trial. Thus, the district court should not have
addressed Tush's untimely claim that his jury trial waiver was inadequate and erred in
granting Tush relief in his K.S.A. 60-1507 motion based upon this claim. Based on this
conclusion, we do not need to address the second issue in the State's brief that Tush
abandoned his claim that his jury trial waiver was inadequate in his direct appeal.

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ADEQUACY OF JURY TRIAL WAIVER

Although we could end our analysis here, we will also address the merits of Tush's
claim that Judge Bennett failed to adequately advise Tush of his right to a jury trial prior
to him waiving that right in the event it is determined on review that the district court
properly addressed this claim. The State goes through relevant Kansas caselaw, analyzing
what is necessary for an adequate jury trial waiver, and contends that Judge Bennett
adequately advised Tush of his right to a jury trial before accepting the waiver.

Tush argues that the district court did not err in finding that his jury trial waiver
was inadequate. Tush did not file a cross-appeal from the district court's adverse rulings
which denied him relief on his other claims, and Tush makes no argument on appeal
challenging the adverse rulings. These claims are deemed abandoned. See Cooke v.
Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008).

Whether a defendant waived the right to a jury trial is a factual question, subject to
analysis under a substantial competent evidence standard of review. But when the facts of
the district court's determination to accept a jury trial waiver are not disputed, the
question whether the defendant voluntarily and knowingly waived the jury trial right is a
legal inquiry subject to unlimited appellate review. State v. Beaman, 295 Kan. 853, 858,
286 P.3d 876 (2012).

A jury trial waiver must be voluntarily made by the defendant, and the defendant
must know and understand what he or she is doing. State v. Irving, 216 Kan. 588, 589,
533 P.2d 1225 (1975). In order for a criminal defendant to effectively waive his or her
right to a trial by jury, the defendant must first be advised by the court of his or her right
to a jury trial, and he or she must personally waive this right in writing or in open court
for the record. 216 Kan. at 590; see State v. Frye, 294 Kan. 364, 372, 277 P.3d 1091
(2012).
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The State points out that in Beaman the district court advised the defendant,
among other things, that "'Mr. Beaman, your attorney has advised the Court that it is your
desire to waive a jury for this trial; is that correct?'" 295 Kan. at 854. The defendant
responded affirmatively. The defendant argued on appeal that the waiver was inadequate
because the district court "failed to explain that a 12-person jury would need to
unanimously agree on guilt." 295 Kan. at 859. Nevertheless, the Supreme Court found
that the defendant's jury trial waiver was made knowingly and voluntarily. 295 Kan. at
862. The Supreme Court determined that the district court is not required to advise the
defendant of the collateral rights associated with a jury trial, such as the size of the jury
and the requirement for a unanimous verdict. 295 Kan. at 862. The State argues that if the
defendant in Beaman was adequately advised of his right to a jury trial, then Tush was
adequately advised of his rights, as well.

Although Beaman can be distinguished from Tush's case, we agree with the State
that the record herein indicates that the standards for waiving a jury trial set forth by the
Kansas Supreme Court were met in Tush's case. Judge Bennett first advised Tush's
codefendant, Crutchfield, of her right to a jury trial, including a statement telling her that
"[y]ou do have a right to have a 12-person jury but you can waive that right." Tush was
present in the courtroom when the district court addressed Crutchfield about waiving her
jury trial right, but the record does not reflect that Tush's attorney was in the courtroom at
that time. A few moments later, the district court personally addressed both Tush and his
counsel about Tush's right to a jury trial, and the following exchange took place:

"Mr. Todd: Zane Todd for Mr. Tush who appears in person.
"We're willing to waive and also want to waive the jury trial and set for a bench
trial.
"THE COURT: Mr. Tush, you heard what we talked about in the Crutchfield
case about the right to have a jury trial. You understand you have that right and you can
give it up if you want and your attorney indicates you want to do that rather than try your
case to a jury, just try it to the Court.
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"THE DEFENDANT: Yes, sir.
"THE COURT: All right. You agree with that?
"THE DEFENDANT: Yes, I do.
"MR. GLASSER: For the record, the State is fine waiving jury trial.
"THE COURT: The Court will set for the Court trial and when do you want to
do that?"

In ruling that Judge Bennett failed to adequately advise Tush of his right to a jury
trial, the district court focused on the reference Judge Bennett made to Crutchfield's
waiver and the fact that Tush may not have been paying attention to Judge Bennett when
he advised Crutchfield of her right to a jury trial. The district court specifically found that
there was no way "the court can impute an adequate waiver of jury trial to [Tush] based
upon what he may have heard from the jury trial waiver which took place in the case
immediately preceding his own." However, the district court never really analyzed the
remaining colloquy between Judge Bennett and Tush to determine if it was sufficient to
constitute a valid waiver of Tush's right to a jury trial.

On appeal, Tush points out that the record does not reflect that his attorney was
present in the courtroom when Judge Bennett advised Crutchfield about her right to a jury
trial. Tush also argues, as the district court found, that there is no way to tell what degree
of attention Tush gave to Crutchfield's case when Judge Bennett advised Crutchfield of
her right to a jury trial. We agree with Tush that anything Judge Bennett said to
Crutchfield cannot be considered in determining whether the judge adequately advised
Tush of his right to a jury trial. Tush's attorney was not present in the courtroom at that
time, and there is no way of knowing whether Tush was even paying attention to Judge
Bennett when he advised Crutchfield of her right a jury trial.

Nevertheless, the record reflects that Judge Bennett adequately advised Tush of his
right to a jury trial, with his counsel present, and Tush knowingly and voluntarily waived
his right to a jury trial in open court. Specifically, Judge Bennett personally addressed
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Tush about his right to a jury trial and stated: "You understand you have that right [to a
jury trial] and you can give it up if you want and your attorney indicates you want to do
that rather than try your case to a jury, just try it to the court." (Emphasis added.) Tush
agreed with the district court's statement and indicated that he wanted to waive his right
to a jury. Tush's attorney and the prosecutor also agreed with the jury trial waiver.

The colloquy between Judge Bennett and Tush established that (1) Judge Bennett
advised Tush of his right to a jury trial, (2) Judge Bennett explained that if Tush gave up
his right to a jury trial, then his case would be tried to the court, and (3) Tush personally
waived his right to a jury trial in open court. We find that the colloquy between Judge
Bennett and Tush was sufficient to establish that Tush knowingly and voluntarily waived
his right to a jury trial in open court after being advised by the trial court of the right. See
Frye, 294 Kan. at 372; Irving, 216 Kan. at 590.

We will contrast the jury trial waiver in Tush's case with other recent cases in
which our court found that the defendant's jury trial waiver was inadequate. In State v.
Stephens, No. 112,184, 2015 WL 5224806, at *1 (Kan. App. 2105) (unpublished
opinion), the entire discussion regarding the defendant's jury trial waiver was as follows:

"'[STEPHENS' LAWYER]: We are here on arraignment. I believe Ms. Stephens
is [going to] plead not guilty, we are going to be looking for a motions hearing, which
will be dealing with suppression, and then maybe running that, combining it with a bench
trial on that.
"'THE COURT: All right. So Ms. Stephens, is she willing to waive then her right
to a jury trial?
"'[STEPHENS' LAWYER]: I believe. That's my understanding.
"'[STEPHENS]: Yes, Your Honor.
"'THE COURT: All right. Ms. Stephens, then as to the one count in the
Information alleging felony possession of marijuana on or about 27th day of May of this
year in the County of Riley, State of Kansas, I will enter a plea of not guilty. We'll set it
for a motions, trial to the court hearing on December 2nd at 11:00. Thank you.'"
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The court in Stephens found the jury trial waiver was inadequate because the trial
court never actually addressed Stephens and never advised her of her right to a jury trial.
The Stephens court noted that the trial court in that case did not speak to Stephens about
her right to a jury trial in any fashion, and the trial court never actually spoke directly to
Stephens to secure a waiver from her. 2015 WL 5224806, at *2. The facts in Stephens
clearly are distinguishable from the facts in Tush's case.

In State v. Bell, No. 110,550, 2014 WL 5801050, at *1 (Kan. App. 2014)
(unpublished opinion), rev. denied 301 Kan. 1047 (2015), the trial court accepted the
defendant's jury trial waiver with the following exchange:

"'THE COURT: All right. And is your client waiving jury trial?
"'MS. CONNER–WILSON [Bell's counsel]: He is, Your Honor. We've discussed
that, and he's chosen to choose the Court trial date.
"'THE COURT: And Mr. Bell, you do understand that if you waive your request
for a jury trial and try this case to the Court, that if you don't like the outcome, you can't
come back later and say, 'Wait a minute. I've changed my mind. I want a jury trial.' You
understand?
"'THE DEFENDANT: Yes.
"'THE COURT: And is it your desire to waive request for jury trial?
"'THE DEFENDANT: Yes.'"

In Bell, the trial court failed to advise the defendant of his right to a jury trial as
required in Irving, 216 Kan. at 590. Instead, the trial court twice asked the defendant if he
desired to waive his "request" for a jury trial. 2014 WL 5801050, at *1. As the Bell court
noted, the only warning the trial court gave to the defendant was that after he waived his
request for a jury trial, he would not be able to later change his mind. 2014 WL 5801050,
at *4. The facts in Bell are different from the facts in Tush's case.

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Here, Judge Bennett specifically advised Tush about his "right to have a jury trial."
Judge Bennett explained that if Tush waived his right to a jury, his case would be tried to
the court. Tush was no stranger to the legal system as the record reflects he had multiple
prior felony convictions. If Tush had any questions about his right to a jury trial, he could
have asked Judge Bennett. Instead, he told Judge Bennett that he understood his right to a
jury trial and he personally waived that right in open court. The Kansas Supreme Court
requires that a defendant must personally waive his or her right to a jury trial in open
court after being advised by the trial court of the right. See Frye, 294 Kan. at 372; Irving,
216 Kan. at 590. That is what happened here. The district court is not required to advise
the defendant of the collateral rights associated with a jury trial, such as the size of the
jury and the requirement for a unanimous verdict. See Beaman, 295 Kan. at 862.

Therefore, in the event that Tush's amended claim that his jury trial waiver was
inadequate was properly before the district court, we conclude that the district court erred
in finding that Judge Bennett failed to adequately advise Tush of his right to a jury trial
prior to him waiving that right. The district court did not grant relief to Tush on any other
grounds. As a result, we reverse the district court's decision granting Tush a new trial and
remand with directions for the district court to deny Tush relief under K.S.A. 60-1507.

Reversed and remanded with directions.