Syllabus by the Court
1. Generally, issues not raised before the district court, even constitutional issues, are not properly before an appellate court for review. But an appellate court may hear arguments raised for the first time on appeal in order to prevent the denial of fundamental rights, including the claim that the defendant did not waive the right to a jury trial.
2. When the facts are undisputed, whether a defendant knowingly and voluntarily waived his or her right to a jury trial is a question of law over which an appellate court exercises unlimited review.
3. A criminal defendant's right to a jury trial is guaranteed by constitution and by statute. K.S.A. 22-3403(1) requires that 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.
4. The right to a jury trial may be waived if done so voluntarily and knowingly. The waiver of the right to a jury trial should be strictly construed in favor of providing a defendant the opportunity for a jury trial. Determining whether this test has been met will depend on the particular facts and circumstances of the case. A court may not accept a jury trial waiver unless the defendant,
after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court. This requirement provides a safeguard against a defendant's involuntary waiver of the right to a jury trial and minimizes the uncertainty that may otherwise attendant the determination of whether the defendant has knowingly and intelligently waived that right. A defendant's waiver of the right to a jury trial will not be presumed from a silent record.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Jose V. Guerra, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
Shane Raikes was convicted in a bench trial of possession or control of a hallucinogenic drug after he failed to complete the drug court diversion program. He appeals, claiming he was denied his right to a jury trial. Because of the clear imperative announced in our Supreme Court's decision in State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975), we conclude that Raikes' written waiver of his right to a jury trial in his diversion agreement was insufficient in and of itself to support a waiver of his constitutional right to trial by jury. We recognize that the consequence of this determination is significantly attenuated by the fact that any trial on Raikes' drug charge will be limited to the stipulated facts set forth in the diversion agreement, facts which would inexorably lead any rational factfinder, be it court or jury, to find Raikes guilty. Nevertheless, we are compelled by the holding in Irving to reverse and remand for a new trial.
Raikes was charged with possession or control of a hallucinogenic drug with a prior conviction, driving under the influence (DUI), possession or control of depressants, transporting an open container, and failing to properly illuminate the rear registration plate on his vehicle.
Raikes made a deal with the State. In exchange for him pleading no contest to the DUI charge and agreeing to enter the district court's drug court program on the charge of possession or control of a hallucinogenic drug, the State agreed to dismiss the remaining charges. In advance of his plea hearing, Raikes and the State entered into a formal written plea agreement covering all of Raikes' pending charges. The title of the agreement was " APPLICATION TO MODIFY PLEA TO NO CONTEST AND ADVICE OF RIGHTS IN REGARDS THERETO (DUI)." In it Raikes acknowledged:
" I understand and have been advised by the Court that by entering pleas pursuant to this plea agreement I make admissions and surrender and waive the legal rights below that I would be ...