1 NOT DESIGNATED FOR PUBLICATION

No

. 1 2 3 , 695

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

D AVID A ARON K ELLY , Appell ant

.

MEMORANDUM OPINION

Appeal from Leavenworth D istrict C ourt; R OBERT J. B EDNAR , judge. Opinion filed March 4,
20 2 2 . Reversed and remanded with directions.

Rick Kit t el , of Kansas Appellate Defender Office , f or appellant.

M

egan Williams , assistant county attorney , and Derek Schmidt , attorney general, for appellee.

Before C LINE , P .J., G REEN , J., and P ATRICK D. M C A NANY , S. J

.

P ER C URIAM : David Aaron Kelly stands convicted of aggravated intimidation of a
witness after a bench trial

. Because w e find the district court failed to sufficiently advise Kelly of his right to a jury trial before a ccepting his jury trial waiver , we r everse Kelly's
conviction and remand with directions

. This reversal renders Kelly's remaining complaints moot.

Given t he disposition of this appeal , the facts underlying Kelly's conviction are largely irrelevant. In summary, Kelly was charged with aggravated intimidation of a witness and aggravated assault related to a n incident which occurred on July 24, 2018

.2 His jury trial was originally set to occur in October 2019. After several continuances and the recusal of the original trial judge, this date was pushed back to April 9, 2020. On March 18, 2020, however , all jury trials were suspended because of the COVID

- 19

p andemic

. By July 17, 2020, Kelly had spent 529 days in custody, on this case and other charges. At one point Kelly moved to dismiss the charges on speedy trial grounds, but the district court found most of the delays were attributable to Kelly's changes in counsel and
h is request for recusal of his original trial judge

.

Ultimately, Kelly appeared for trial on September 16, 2020

. The record does not reflect how the matter became scheduled for this date, nor whether the parties intended
the matter to be set for a jury or bench trial. The district court began the proceedings by asserting the parties were appearing for a bench trial and then mistakenly stat ed Kelly had already waived his right to a jury trial. After Kelly's counsel responded by pointing out
th at Kelly had not yet waived his jury trial right, but intended to do so at that time, the district court conducted a short examination of Kelly :

" THE COURT: You are waiving your right to a jury trial, Mr. Kelly?

" MR. KELLY: (Inaudible) I wanna do a benc h trial.

" THE COURT: All right. And

— and no one has

— has anyone threatened you or promised you anything to get you to waive your right?

" MR. KELLY: No. I ' m just tired of being in jail.

" THE COURT: Has anyone threatened you with any type of repercussions i f you would not waive your right?

" MR. KELLY: No, sir.

" THE COURT: So

— and the main reason is that you would like to speed up the process, if I understand you; is that correct?

" MR. KELLY: Yes, Judge Bednar.

" THE COURT: All right."

The district court then moved on to dispos e of several pretrial motions filed by Kelly . After both parties waived opening statements, the court heard witness testimony

.3 The court found Kelly guilty of aggravated intimidation of a witness but not guilty of

aggr avated assault. The court sentenced Kelly to prison, relying on a presentence investigation report ' s summary of Kelly's criminal history which Kelly confirmed was

accurate.

Kelly now challenges the sufficiency of the evidence supporting his conviction, as well as the district court's use of his prior conviction for criminal threat in calculating his criminal history score. We need not address either of these challenges since we are persuaded by Kelly's other argument on appeal : W e agree Kelly's waiver of his jury trial right was ineffective since the district court did not properly advise Kelly of this right.

Before we address the substance of Kelly's argument, we must discuss our ability
to review it on appeal. Although Kelly brought up whether he knowin gly and voluntarily waived his right to a jury trial before the district court in a supplemental motion for a new
trial , he argued different grounds in his motion than he allege s on appeal

. While we question whether Kelly properly preserve d this issue for appeal , the State d oes not

. See
State v. Walle , No. 104,224, 2012 WL 139267 , at *3 (Kan. App. 2012) (unpublished opinion) (finding a prosecutorial misconduct claim was not preserved for appeal since different grounds were alleged to the district court than on appeal)

. Yet we need not
address whether Kelly properly preserved this issue since we are persuaded that, even if Kelly did not, we may reach it for the first time on appeal because it implicates Kelly's fundamental rights.

Generally, appellate courts do not address issues raised for the first time on appeal but may do so when consideration of the issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights. Not only is the right to a jury trial a fundamental right, but the Kansas Supreme Court has counseled that whether a court has advised a defendant of his or her right to a jury trial is one of the last issues that should be denied the opportunity for exceptional treatment. State v. Redick , 307 Kan. 797, 802, 4144 P.3d 1207 (2018). We thus exercise our discretion to consider the sufficiency of Kelly's jury trial waiver on appeal. See State v. Parry , 305 Kan. 1189, 1192, 390 P.3d 879 (2017) ( since preservation is a prudential rule rathe r than a jurisdictional bar, an a ppellate court
may apply exc eptions to that general rule).

Standards governing jury trial waivers

Both the United States Constitution and the Kansas Constitution guarantee a criminal defendant a right to a jury trial . U.S . Const. amend. VI; Kan. Const. Bill of Rights §§ 5, 10. Whether a defendant has waived th is right is a factual question, subject to analysis under a substantial competent evidence standard of review. But when the facts
of the district court's determinatio n to accept a jury trial waiver are not disputed , whether a defendant voluntarily and knowingly waived the jury trial right is a legal inquiry subject to unlimited appellate review. State v. Harris , 311 Kan. 371, 375, 461 P.3d 48 (2020).
We must strictly c onstrue jury trial waivers to ensure that defendants have every opportunity to receive a trial by jury. Redick , 307 Kan. at 803.

All felony cases must be tried to a jury unless the defendant and the State, with the district court's consent, submit the mat ter to a bench trial. K.S.A. 22

- 3403(1). Two things

must occur before a trial to the bench can take place : (1) T he judge must clearly and unequivocally advise the defendant that he or she ha s the right to have the case tried by a jury and (2) if the defendant wishes to waive the right to a jury trial, the judge must
determine whether th at waiver is made freely and voluntarily

. Harris , 311 Kan. at 376 (explaining the rule laid out in State v. Irving , 216 Kan. 588, 590, 533 P.2d 1225 [1975] ).

B ecause there is a presumption that a criminal case will be tried to the jury , it is not enough for a judge to simply ask a defendant to make a choice between a trial to the judge or a trial to the jury. Harris , 311 Kan. at 376. The judge must follow the pr ocedure
laid out in Irving to guard against involuntary waiver and to " minimize the uncertainty5 otherwise attendant to the determination of whether the defendant knowingly and intelligently waives a jury trial. " 216 Kan. at 590.

The test for determining a waiver's validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing. Whether that test is
satisfied depends on the particular facts and circumstances in each case. Irving , 216 Kan.
at 589.

Sufficiency of K elly's jury trial waiver

Kelly claims that his waiver was not made knowingl y s ince the district court failed

to expressly advise him of his right to a jury trial. T he district court did not make a declarative statement advising Kelly of the right or explain to him the nature of the jury trial right and how a jury trial differs from a bench trial. Instead, the district court simply
asked him a few questions , which onl y touched on the reason Kelly was waiving (to

" ' speed up the process ' " ) his right to a jury trial . Given Kelly's concerns about past delays
in his case and the fact that Kelly waived his jury trial right at a time when jury trials were not being scheduled because of the COVID

- 19 pandemic , Kelly argues the district
court should have done more to ensure that Kelly understood the right he was giving up and that he was not simply choosing the quicker option due to the exigent circumstance
of the pandemic.

The State argues that Kelly's waiver of his jury trial right was valid, noting Kansas appellate courts have upheld jury trial waivers even when the district judge has not fully explained all the particulars of the right. In the State's view, the district court 's inquiry here was minimally sufficient. The State argues it is enough that the district court referenced Kelly's right to a jury trial and ensured that his waiver was freely and voluntarily made, given that Kelly did not express any confusion about the n ature of the right in his interactions with the judge.6 There is no checklist or magic phrase that appellate courts should look for in considering whether a district court has sufficiently advised a defendant of the nature and
extent of his or her constitut ional right to a trial by jury. Instead, we must consider the surrounding facts and circumstances to determine whether the purpose of the Irving
rule

— that the district court satisf ied itself that the defendant knows what rights he or she
has and what he or she is giving up

— is met

. State v. Beaman , 295 Kan. 853, 860

- 61 , 286 P.3d 846 (2012)

.

In support of its argument that a district court is not required to explain all the particulars of the jury trial right to a defendant before accepting the defendant's waiver of that right, the State relies on Redick , 307 Kan. 797. In Redick , the district court explained the jury trial right in basic terms to the defendant before accepting his waiver. Redick told the district court that he wanted to waive his jury trial right because he was afraid the media coverage of his case would make it difficult to fi nd impartial jurors. Before accepting Redick's jury trial waiver, the district court informed Redick that he had " 'a constitutional right to be tried by a jury of your peers in this community and the Court must provide that to you '" and asked him to confir m that he was waiving that right. 307
Kan. at 799.

On appeal, Redick claimed the district court had failed to sufficiently advise him of his rights before accepting his waiver, specifically arguing the district court should have advised him that a jury v erdict must be unanimous. The Supreme Court rejected these arguments and held that the district court sufficiently advised Redick of his rights, noting that there was no requirement for district judges to articulate the jury

- unanimity rule before accepting a defendant's jury trial waiver. Redick , 307 Kan. at 804

- 05. In explaining its ruling, the court found that while the district court's remarks " were not as expansive as they could be, they were minimally sufficient. " 307 Kan. at 804. Although
the Supreme C ourt would have preferred the district court to have explained the steps that7 must be taken to ensure the seating of a fair and impartial jury, the omission did not
render Redick's waiver invalid. 307 Kan. at 805.

But Redick is distinguishable because t he district court in Redick explicitly advised the defendant that he had a right to a jury trial and explained what that meant in basic terms. Here, the district court only referred to Kelly's right to a jury trial ; it did not explain the nature or extent of that right. What is more, Redick evidently understood he had a right to a trial by his peers since he explained he did not want a trial by those peers, whom he felt would not judge him fairly, based on media coverage. See 307 Kan. at 799

- 800. Kelly's wa iv er did not suggest he understood the nature of his jury trial right

— it only reflected that he understood his trial would occur quicker if he chose a bench trial over a jury trial. While we do not judge the validity of a jury trial waiver on the grounds of expediency in general , we do find under these circumstances that the district court

s hould have explained the nature of Kelly's jury trial right to ensure Kelly knew the substance of the right he was giving up simply to proceed to trial quicker. See Beaman , 295 Kan. at 860

- 61.

I n Beaman , the Supreme C ourt considered the validity of a jury trial waiver where the district court did not explicitly advise the defendant of his right to a jury trial but engaged in a thoughtful exchange with the defendant that accomplished the same

purpose. Beaman told the di strict court that he wanted to waive his right to a jury trial against the advice of his counsel. The district court asked Beaman to confirm that it was
his desire to " 'waive a jury for this trial '" and explained that " 'the defendant is almost always bette r off taking a case in front of a jury. '" Beaman , 295 Kan. at 854. The district court then described some of the disadvantages of a bench trial and asked Beaman to give his reasons for waiving his jury trial right. After Beaman stated that he did not want to force the victim to testify, the district court explained that the victim and her family would still have to testify at a bench trial but would be testifying to the court instead of a jury. Once the district court made sure that Beaman understood this a nd still wanted to8 waive his right to a jury trial, it accepted his waiver. On appeal, Beaman argued that his waiver was invalid because the district court assumed that he fully understood his jury trial right without explaining it to him.

In analyzing th e validity of his waiver, the Supreme Court noted that Beaman was not explicitly advised by the district court that he had a right to a jury trial. The court explained, however, that while there may have been a missing element in the preferred

" checklist " for accepting a waiver, the purpose of the missing element

— that the court satisfy itself that the defendant knows what rights he or she has and what he or she is giving up

— was met

. Beaman , 295 Kan. at 860

- 61. Because the district court used the
word " waive r, " told Beaman he would be better off with a jury, and engaged in a thoughtful exchange with Beaman, the Supreme Court held that Beaman's jury trial waiver was knowing and voluntary, even though it never explicitly advised him of his right to a jury trial . 295 Kan. at 861

- 62. The district court had no such exchange with Kelly.

We find this case more analogous to Harris , 311 Kan. 371 , than Redick and
Beaman

. In Harris , the Kansas Supreme Court reversed a defendant's conviction after concluding the district court failed to ensure the defendant understood the nature of the right he was giving up. The district court's exchange with Harris was minimal. Harris '
counsel asked him whether he wanted a judge or a jury trial, to which Harris replied, " 'Go with the judge. I want the bench. '" 311 Kan. at 373. After the district court asked Harris if he was requesting a jury trial, Harris responded, " 'I'm asking for a bench trial. '" 3 11 Kan.
at 373. Based on this exchange, the district court accepted Harris ' waiver.

As in Beaman , the district court in Harris failed to explicitly tell the defendant that he had a right to a jury trial. Unlike Beam a n , however, the district court in Harr is did not
even use the word " waiver " and failed to engage in any thoughtful exchange with the defendant to make up for this deficit. As the Supreme Court explain ed , the district court's9 framing of the right to a jury trial as a mere option failed to recog nize that Harris was entitled to a jury trial by default, without making any affirmative election. And once Harris expressed his preference for a bench trial, the district court simply accepted his choice and moved on without taking any steps to ensure tha t Harris understood the right he was giving up. Based on these facts, the Supreme Court held the district court failed to properly inform Harris of his right to a jury trial and ensure that he understood the nature
of the right he was giving up. 311 Kan. a t 377. Similarly, t he district court simply referenced Kelly's jury trial right , without explain ing that right or the nature of what Kelly was giving up in the name of expediency

.

Admittedly, this case is a close call. But g iven that jury trial waivers must be strictly construed to ensure defendants have every opportunity to receive a trial by jury,

we find that Kelly did not knowingly and voluntarily waive his right to a jury trial

. We reverse Kelly's conviction , remand this case to t he district court , and direct it to sufficiently advise Kelly of his right to a jury trial so he can either knowingly and voluntarily exercise that right or properly waive it.

Reverse d and remand ed with directions.