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NOT DESIGNATED FOR PUBLICATION

No. 123,185

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CORY WAYNE BENTLEY,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed April 29, 2022. 

Affirmed in part, reversed in part, and remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.

PER CURIAM: This is the direct appeal of Cory Wayne Bentley following his 

convictions for possession of methamphetamine with intent to distribute, criminal 

possession of a firearm by a convicted felon, driving while his license was suspended or 

canceled, and failing to maintain a single lane while driving. He was sentenced to a 

controlling prison term of 155 months and a consecutive 6-month jail sentence for 

driving while his license was suspended or canceled.

These convictions arose out of a traffic stop following several traffic infractions. It 

was not a typical traffic stop by the police. The car Bentley was driving was an overdue 
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rental car, so the rental agency remotely activated a device on the car that brought it to a 

stop in the middle of Hillside Street in Wichita. Police officers Nicholas Long and David 

Inkelaar had been following Bentley based on their suspicion that he may have been 

linked to a recent drive-by shooting. 

Officers Long and Inkelaar approached the stopped vehicle, and the driver 

identified himself as Cory Bentley. Long asked Bentley for his driver's license. Bentley 

told Long that he did not have a driver's license and showed Long his prison I.D. number 

from the Kansas Department of Corrections. Inkelaar searched a law enforcement 

database and discovered that Bentley's driver's license had been suspended and he was 

the subject of two outstanding city bench warrants. Bentley was placed under arrest. 

Before being searched, Bentley told Long that he had a gun and drugs in his pocket. The 

drugs found on his person consisted of two bags of methamphetamine—one bag 

containing 7.13 grams and the other containing 20.57 grams—for a combined weight of 

27.7 grams.

Before the police searched Bentley's car, Bentley stated that he had another gun in 

the car. The gun was found between the driver's seat and center console. Empty baggies 

with no drug residue were also found in the car. No pipes, syringes, or other drug 

paraphernalia were found. 

Back at the police station, Bentley was interviewed by Detective Daniel Weidner.

Bentley admitted the guns and the drugs were his. He bought the guns a couple of days 

earlier. He bought the drugs the evening before his arrest. Bentley admitted that he used

methamphetamine and said he had planned to use some from the "smaller bag" later that 

day. Bentley told Weidner he would have to "break the house off" with the larger bag. 

Weidner understood this slang expression to mean that Bentley would share the contents 

of this bag with others in exchange for them providing him a place to stay for the night. 

Bentley had told Weidner that "he moves from motel to motel or stays place to place,"
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and that he would have to "break the house off"; that is, he was going to have to share 

some of the drugs in return for being able to stay with various people who provided him 

with shelter. 

Bentley was charged with the crimes noted earlier. Shortly before trial, Bentley 

filed three motions to suppress. Following an evidentiary hearing, the district court 

denied Bentley's motions. At the jury trial that followed Bentley was convicted, and his

appeal brings the matter to us.

Voluntariness of Statements During Police Interrogation

For his first issue on appeal, Bentley argues that the district court erred when it 

found the statements he made to Detective Weidner during his interrogation at the police 

station were voluntary and, therefore, admissible at trial. 

Preservation

As a preliminary matter, the State argues that this issue is not properly before the 

court because Bentley failed to lodge a timely and specific objection to the admission of 

these statements. According to the State, at the hearing on Bentley's pretrial motions to 

suppress, Bentley's sole contention regarding Detective Weidner's interrogation at the 

police department was that Bentley's statements were involuntary because he was high on 

methamphetamine at the time. Thus, at trial, when Bentley made a standing objection—

which the court granted—based on the district court's adverse rulings on Bentley's

motions to suppress, the State contends that the continuing objection applies only to 

Bentley's claim that he was high on drugs during the interrogation.

Bentley filed three pretrial suppression motions. Bentley filed two motions in one 

document entitled "Motion to Suppress Illegally Seized Evidence Pursuant to K.S.A. 22-
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3216 and Motion to Suppress Confession or Admission Pursuant to K.S.A. 22-3215." He 

then filed a third motion that same day, which was entitled "Motion to Determine 

Voluntariness." That motion specifically referred to the issue of voluntariness as required 

by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). But because 

of the overlapping claims in these motions, at the hearing the court and the parties treated 

them as only two motions: one to suppress illegally obtained evidence and statements at 

the scene and the other to suppress Bentley's later statements at the police station under 

Jackson v. Denno. 

At the evidentiary hearing on these motions, the State introduced into evidence the 

police videos at the scene of the traffic stop and at the later interrogation at the police 

station. The State requested that the court "view those when the Court has time, and then 

make a ruling." After hearing the testimony, the court adjourned in order to view the 

videos introduced into evidence. 

When the court reconvened, about two weeks before trial, the court heard the 

arguments of counsel and thereafter made its ruling. 

Bentley's counsel argued Bentley's car stopping in the middle of the street was the 

result of police action in directing the car rental agency to remotely stop the vehicle, and 

that there was no probable cause for doing so. He stated: "[E]verything about this stop is 

caused by law enforcement officers, who decide that they should reach out to a rental car 

company and remotely stop a vehicle in motion." He further argued that the opportunity 

to interrogate Bentley at the scene and at the police department was created by the police 

"by stopping him remotely, using the GPS technology through Kwik Kars . . . without 

any warrant, without any basis."

Bentley's counsel referred to Detective Weidner's "prolonged conversation" with 

Bentley at the police station, Weidner's "promises about what he's going to do with the 
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prosecution and how Mr. Bentley can benefit from those things down in court,"

Weidner's focus on Bentley as a victim rather than a suspected drug dealer, and Bentley 

probably being high on methamphetamine at the time.

The State argued that the traffic infractions provided a lawful basis for the traffic 

stop. It was determined at the scene that Bentley had outstanding arrest warrants, which 

justified taking him into custody. Bentley then volunteered that he had a weapon and 

drugs in his pocket, and the police conducted a search incident to his arrest. Bentley 

volunteered that there was another weapon in the car, justifying a search of the car. The 

State argued that the statements at the scene were spontaneous utterances that were 

voluntary and admissible. 

As to the statements at the police station, "they were under Miranda" and Bentley 

had freely and voluntarily waived those rights. The State contended that the video of the 

police station interrogation showed that Bentley's statements were voluntary. The State 

argued that statements made to Detective Weidner 

"were under Miranda, there was no indication that he did not freely and voluntarily waive 

those rights, he agreed to speak with him. And I would ask the Court to find that those are 

voluntary, as well, based on the evidence presented and the video that the Court had the 

opportunity to view."

In announcing its ruling, the court first addressed the motion to suppress evidence 

associated with the stop. With respect to Bentley's interrogation at the police station, the 

court addressed each of the factors enumerated in State v. Davis, 306 Kan. 400, 417, 394 

P.3d 817 (2017), and found that Bentley's statements were freely and voluntarily made.

Officer Long testified on direct examination at the end of the first day of trial that 

as he was following Bentley he observed various traffic infractions before Bentley's 
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vehicle came to a stop. Long testified that as he followed Bentley through Wichita, he 

observed Bentley turn from westbound Kellogg onto Hillside and then come to an abrupt 

stop in the inside lane of Hillside. The prosecutor then asked if Long knew why Bentley's 

vehicle came to a stop. Long responded that he did not.

The court recessed for the day. The following morning, before Officer Long 

resumed testifying, the following exchange took place:

"[Defense counsel]: Judge, defense objects to witness' last answer, regarding the 

stop, pursuant to our two pretrial motions. We object to evidence of the stop seizure 

interrogation.

"THE COURT: Overruled, as previously ruled.

"[Defense counsel]: Judge, defense moves for a standing objection—

"THE COURT: And that—

"[Defense Counsel]: —for this witness and all witnesses.

"THE COURT: That's granted."

The State contends that Bentley's "lone argument during pretrial proceedings was 

that he was 'likely' high on methamphetamine during the interrogation." The State argues 

that Bentley is pulling a bait and switch by now raising on appeal the claim that his 

statements were not voluntarily made as required by Jackson v. Denno as applied in 

Kansas using various factors identified in Davis. 

We view the pretrial suppression proceedings more broadly than does the State. 

Under K.S.A. 60-404,

"[a] verdict or finding shall not be set aside, nor shall the judgment or decision based 

thereon be reversed, by reason of the erroneous admission of evidence unless there 

appears of record objection to the evidence timely interposed and so stated as to make 

clear the specific ground of objection."
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Here, Bentley objected in his pretrial motions to the admission of physical evidence and 

statements he made to the police. The district court court's ruling on Bentley's pretrial 

motions was about two weeks before trial. Of course, that pretrial ruling was tentative in 

the sense that as the evidence came in during the trial the court's ruling could change. See 

Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). Thus, a 

timely and specific objection at trial is required to prevent the erroneous admission of 

evidence based on the actual facts and circumstances at the point in the trial when the 

evidence is proffered. State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). But as 

stated in State v. Houston, 289 Kan. 252, 271, 213 P.3d 728 (2009), while the admission 

of evidence following an adverse ruling on a suppression ruling must be preserved by a 

contemporaneous objection, that can be accomplished by a continuing objection at trial, 

"thereby eliminat[ing] the need for a later trial objection."

Here, Bentley's counsel objected during Officer Long's testimony about what 

caused Bentley's vehicle to come to a stop in the middle of the roadway. In his earlier 

effort to suppress the physical evidence and incriminating statements that followed the 

traffic stop and his arrest, Bentley argued that (1) his vehicle came to a stop due to 

actions by the auto rental agency at the direction of the police without them having any 

probable cause or reasonable suspicion, and that (2) his later statements during the police 

interrogation following his arrest were not voluntary as required under Jackson v. Denno. 

Thus, this was an opportune time for Bentley's counsel to renew his pretrial objections to 

the admission of the anticipated evidence of what transpired following the stop. Bentley's 

counsel objected—rather obliquely—"to evidence of the stop seizure interrogation."

From this, we take it that Bentley was renewing his pretrial objections to the validity of 

the stop, the validity of his subsequent arrest, and the admissibility of evidence obtained 

through police interrogation thereafter. The objection was overruled, but the court gave 

Bentley a standing objection to such testimony. 
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Under these circumstances, we find that Bentley's counsel preserved his pretrial 

objections to the admission of Bentley's statements to the police during his interrogation, 

which included all the factors relating to voluntariness enumerated in Davis, which were 

addressed by counsel and by the court in its ruling on the suppression motion, not just the 

issue of whether Bentley was high on drugs at the time of the interrogation.

The Voluntariness of Bentley's Statements to the Police

In considering the merits of the district court's ruling on the admissibility of 

Bentley's statements to the police, we examine the district court's findings of fact to

determine whether they are supported by substantial competent evidence without 

reweighing the evidence or reexamining the credibility of the witnesses. State v. Cash, 

313 Kan. 121, 125-26, 483 P.3d 1047 (2021); State v. Gibson, 299 Kan. 207, 215-16, 322 

P.3d 389 (2014). Here, Bentley does not challenge the district court's factual findings. 

Instead, he asks us to view the video of the police interview to make our own de novo 

determination of the voluntariness of his statements to the police. While the video is 

important evidence, we are not free to totally ignore any sworn testimony provided at the 

hearing that the district court relied on in its analysis. In any event, we have unlimited 

review of whether the district court should have suppressed the evidence under the facts 

established in the testimony and in the video evidence of the interrogation. See State v. 

Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

The State has the burden to prove by a preponderance of the evidence that the 

statements at issue were the product of the defendant's free and independent will. State v. 

Mattox, 305 Kan. 1015, 1042, 390 P.3d 514 (2017). In doing so, the court looks at the 

totality of the circumstances surrounding the confession to determine whether the 

confession was voluntary by considering the following nonexclusive factors: (1) the 

accused's mental condition; (2) the manner and duration of the interrogation; (3) the 

ability of the accused to communicate on request with the outside world; (4) the accused's 
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age, intellect, and background; (5) the fairness of the officers in conducting the 

interrogation; and (6) the accused's fluency with the English language. Davis, 306 Kan. at 

417. 

"'These factors are not to be weighed against one another with those favorable to 

a free and voluntary confession offsetting those tending to the contrary. Instead, the 

situation surrounding the giving of a confession may dissipate the import of an individual 

factor that might otherwise have a coercive effect. Even after analyzing such dilution, if 

any, a single factor or a combination of factors considered together may inevitably lead to 

a conclusion that under the totality of circumstances a suspect's will was overborne and 

the confession was not therefore a free and voluntary act.' [Citation omitted.]" Mattox, 

305 Kan. at 1043.

Bentley concedes he is fluent in the English language and that factor would not 

weigh against the voluntariness of the statements he made. But he contends the other 

factors—which we will address in turn—do not support a finding that his statements were 

voluntary. 

—Bentley's mental condition

Bentley told Detective Weidner that he had suffered from seizures due to K-2 use 

at some time in the past, but Bentley did not reveal when those occurred. He did not 

identify any other medical conditions. Based on our review of the video of the interview,

there is no indication that Bentley's seizure disorder affected the voluntariness of his 

statements.

The district court noted, and the video confirmed, that Bentley was "distraught, 

sad, crying" during the interview. Detective Weidner testified that Bentley was crying 

when he was arrested because he said he knew he was going back to prison for a long 

time and he was still crying when he was in the police interview room. We find no 
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evidence that Bentley being upset about the prospect of returning to prison caused or 

contributed to cause him to make involuntary statements to the police.

Detective Weidner testified that Bentley responded appropriately to the questions 

he asked throughout the interview. Our review of the video confirms this. Weidner did 

not remember discussing alcohol use with Bentley, but he remembered Bentley telling 

him he used methamphetamine the night before. Even so, Bentley stated that he was

clearheaded at the time of the interview. Weidner, who had been doing drug

investigations since 2009, did not believe that Bentley exhibited signs of intoxication 

during the interview. The district court found that Bentley did not exhibit in the video any 

signs of being under the influence or suffering from withdrawal. The district court found 

that Bentley responded appropriately to Weidner's inquiries and described Bentley as 

"extremely clear-minded." We concur with this finding.

—The manner and duration of the interrogation

Detective Weidner estimated that Bentley spent a little more than an hour in the 

interview room before his arrival. Weidner stated on the video that the interview was 

delayed while he had to talk to his boss and had the car searched, "all that stuff." When 

asked about the length of the interview, Weidner estimated it lasted about two-and-a-half 

hours, though he did not spend the entire time in the room with Bentley. At times, 

Weidner had to step out of the room to have a discussion with his supervisors about "the 

questions that [Bentley] asked, or go over my notes to make sure I hadn't forgot to ask 

any questions." The video shows that Weidner stepped out of the interview room five

times for a total of about 50 minutes. Taking that into account, the actual interview lasted 

for a little over two hours. Thus, Bentley's total time in the interview room was about 

four hours.
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While Bentley was in the interview room, he had a handcuff on one wrist that 

apparently was attached to the table in front of him. From the video it appears that one of 

his legs was also shackled.

The video confirms Detective Weidner's testimony that he did not display a

weapon or threaten Bentley during the interview. Weidner also never told Bentley that he 

would not be charged if he gave Weidner specific answers. Weidner discussed the extent 

of Bentley's cooperation and that it could be important if it helped solve a shooting case

he was investigating. Weidner told Bentley he would relay to the prosecutor Bentley's 

level of cooperation. But Weidner also told Bentley that what prosecutors charge him 

with could differ from what police officers arrested him for. Weidner testified that this

statement was not meant as any sort of threat. Bentley asked Weidner about being 

released that day, to which Weidner explained that he did not have the power to release 

Bentley on bond. In the context of the discussion about bonds, Weidner said—and the 

video confirms—that he explained the difference between arresting someone and 

charging someone. 

The district court did not believe the duration of the interview was excessive. The 

district court also noted the interview took place in the afternoon and not the middle of 

the night. These findings are supported by the record. Moreover, our Supreme Court has 

rejected similar arguments made by defendants. For example, our Supreme Court stated 

in State v. Harris, 279 Kan. 163, 167-68, 105 P.3d 1258 (2005):

"Harris complains that his interrogation was coercive because he was shackled 

throughout the process and the interrogation lasted too long. Harris fails to cite any case 

law establishing that a nearly 7-hour detention is too long. Likewise he has not pointed to 

any case law to support his proposition that his confession was involuntary because he 

was restrained by shackles.
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"This court has previously determined that 7 hours is not too long to detain an 

accused for a custodial interrogation. In State v. Brown, 258 Kan. 374, 394-95, 904 P.2d 

985 (1995), this court concluded that it was not coercive to interrogate a 17-year-old 

defendant with a 10th grade education for 7 hours before he confessed to murder. Like 

Harris, Brown only spent about 2 and 1/2 hours being interviewed by officers. The 

remainder of the time, Brown was alone in a room. However, unlike Harris, Brown was 

not restrained during the interrogation.

"Although the defendant in Brown was not handcuffed or shackled during his 

interrogation, other case law establishes that this case is not distinguishable based on that 

fact. In State v. Makthepharak, 276 Kan. 563, 78 P.3d 412 (2003), a 16-year-old 

defendant was handcuffed to a table during a 5 and 1/2-hour interrogation. Nevertheless, 

the Makthepharak court concluded that the defendant's confession was voluntar[y]. 276 

Kan. at 568."

More recently, our Supreme Court found that a 14- to-15-hour detention did not 

render a defendant's statements involuntary. See State v. Betancourt, 301 Kan. 282, 294-

95, 342 P.3d 916 (2015). Part of our Supreme Court's rationale in finding the statements 

voluntary stemmed from the fact that breaks were taken, the defendant slept, law 

enforcement allowed him to go to the restroom, and law enforcement offered and gave 

food and water. 301 Kan. at 294. Here, the length of Bentley's detention was markedly 

shorter than the defendant's detention in Betancourt; and based on the video, there is no 

indication that Bentley ever requested to use the restroom or asked for any food or drink. 

—Bentley's ability to communicate on request with the outside world 

During the interview, Bentley asked Detective Weidner if he could make a phone 

call. Weidner did not allow Bentley to immediately use the phone, but he allowed him to 

make a couple of calls at the end of the interview. 

In Harris, our Supreme Court concluded that defendant's denied request to use the 

phone to call someone about an alibi witness did not weigh in favor of finding the 
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defendant's statements involuntary. 279 Kan. at 168-69. Bentley acknowledges Harris

but argues "the Kansas Supreme Court held that denial of a suspect's request to phone an 

alibi did not by itself show involuntariness." But Bentley overlooks the fact that law 

enforcement never allowed Harris to use the phone, while here Weidner denied his initial 

request but allowed him to make multiple phone calls at the end of the interview. This 

factor does not weigh in favor of finding Bentley's statements involuntary. 

—Bentley's age, intellect, and background

At the time of his arrest and subsequent interview, Bentley was 22 years old and 

had obtained his GED. He had previously been convicted of two person felonies, a 

juvenile nonperson felony, an adult nonperson felony, an adult nonperson misdemeanor, 

and a juvenile person misdemeanor. 

After Detective Weidner collected Bentley's personal information, he provided 

Bentley with a form that explained Bentley's Miranda rights. After Weidner read Bentley 

the first statement on the form, Bentley said, "I know my rights, I've been read them 

plenty of times." Even so, Weidner read Bentley each advisory on the form. 

Bentley had prior involvement with law enforcement based on his previous 

convictions. He told Detective Weidner he understood his rights and chose to sign the 

Miranda waiver. During the hearing on Bentley's motions, the district court found him to 

be articulate and believed he had an above average intelligence. This appears to be 

consistent with the video. Taken together, these facts support the district court finding 

Bentley's statements voluntary. 
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—The fairness of the officers conducting the interrogation

Bentley alleges Detective Weidner acted unfairly because he "made it clear that 

Mr. Bentley was facing serious consequences for being a convicted felon and having two 

guns and two ounces of dope." Bentley also argues he exhibited less sophisticated 

cognitive abilities, but the video does not support this claim. He cites State v. Swanigan, 

279 Kan. 18, 106 P.3d 39 (2005), to support his arguments.

Detective Weidner's statements about the consequences Bentley was facing were

true. Any felon found in possession of multiple guns and 27.7 grams of 

methamphetamine would be facing serious consequences. Possession of that amount of 

methamphetamine with intent to distribute is a severity level 2 drug felony. See K.S.A. 

2020 Supp. 21-5705(d)(3)(C). The shortest presumptive sentence a defendant could 

receive under that severity level of a crime is 92 months' imprisonment if they have an I 

criminal history score. See K.S.A. 2020 Supp. 21-6805(a). Bentley, who admitted to 

previous felony convictions, knew he faced a lengthy prison sentence if convicted. 

Swanigan is distinguishable from Bentley's case. There, Swanigan alleged 

detectives told him "he would be charged for five convenience store robberies instead of 

just one unless he confessed." 279 Kan. at 37. Swanigan also had an IQ of 76 and was 

susceptible to being overcome by anxiety. Our Supreme Court found that Swanigan's 

statements were involuntary. But this finding was based on a combination of Swanigan's 

"low intellect and susceptibility to being overcome by anxiety, the officers' repeated use 

of false information, and their threats and promises." 279 Kan. at 39. 

Bentley's situation is more akin to that of the defendant in Harris, where our 

Supreme Court stated: 
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"We have refused to find a confession involuntary when the police encourage the 

accused to tell the truth. See State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981); 

State v. Kornstett, 62 Kan. 221, 227, 61 Pac. 805 (1900). The Kornstett court stated that 

'mere advice or admonition to the defendant to speak the truth, which does not import 

either a threat or benefit, will not make a following confession incompetent.' 62 Kan. at 

227.

"Here, Detective Chisholm encouraged Harris to tell the truth, but he did not 

promise any benefit or threaten any harm. . . . There is no indication that Harris'

independent will was overcome by Detective Chisholm's forthright comments about 

possible charges." Harris, 279 Kan. at 171-72. 

Bentley argues Detective Weidner "implicitly promised that Mr. Bentley might get 

favorable treatment if he cooperated with police." Weidner admitted that he told Bentley 

his cooperation could be important and that he would relay his level of cooperation to 

prosecutors. But Weidner also explicitly told Bentley multiple times he could not make 

him any promises. Thus, this factor does not support finding Bentley's statements 

involuntary.

Taking all of these factors into account, we conclude that the district court did not 

err in admitting into evidence Bentley's statements during the police interrogation.

The Stipulation to Elements of Criminal Possession of a Firearm

Bentley contends the district court erred when it accepted a stipulation to several 

elements of criminal possession of a firearm by a convicted felon without obtaining a 

valid jury trial waiver on the record. 

Bentley raises this argument for the first time on appeal, which ordinarily would 

bar us from considering it. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). But 

because consideration of this issue is necessary to prevent the denial of a fundamental 
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right—the right to trial by jury—we will consider it. See State v. Harris, 311 Kan. 371, 

375, 461 P.3d 48 (2020).

Whether Bentley's stipulation to elements of a crime constitutes a knowing and 

voluntary waiver of his right to a jury trial is a question of law over which we have 

unlimited review. See State v. Johnson, 310 Kan. 909, 918, 453 P.3d 281 (2019). 

In Johnson, the court instructed the jury, pursuant to a stipulation of the parties,

that the defendant, whose charges included being a felon in possession of a firearm, had

previously been adjudicated as a juvenile offender for an act that would have constituted 

a felony if done by an adult. The court did so without ever having advised the defendant 

of his right to trial by jury and without obtaining in writing or in open court the 

defendant's personal waiver of that right.

On appeal, Johnson argued the district court erred when it failed to obtain a jury 

trial waiver before accepting his stipulation. Our Supreme Court stated:

"The Fifth and Sixth Amendments to the United States Constitution 'entitle[] criminal 

defendant[s] to "a jury determination that [he] is guilty of every element of the crime with 

which he is charged, beyond a reasonable doubt."' And when a defendant stipulates to an 

element of a crime, the defendant has effectively given up his or her right to a jury trial 

on that element. 

"We have consistently held that jury trial waivers 'should be strictly construed to 

ensure the defendant has every opportunity to receive a fair and impartial trial by jury.'

And because every defendant has the fundamental right to a jury trial, courts cannot 

accept a jury trial waiver '"unless the defendant, after being advised by the court of his 

right to trial by jury, personally waives his right to trial by jury, either in writing or in 

open court for the record."' [Citations omitted.]" 310 Kan. at 918-19. 
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In our present case, the State offered into evidence a stipulation by the parties on

the two counts of illegal possession of a firearm by a convicted felon. The stipulation—

which Bentley, his attorney, and the State's attorney all signed—stated that Bentley had 

been convicted of a felony within the five years before the day of this incident and the 

conviction prohibited him from possessing a weapon on that day. The stipulation also 

stated that Bentley had not possessed a firearm when he committed the previous crime. 

The district court accepted the stipulation and admitted it into evidence. But the district 

court never obtained a jury trial waiver on the record. As a result, the district court erred 

when it accepted Bentley's stipulation. See 310 Kan. at 919.

The State argues that Johnson is wrongly decided. But we are duty bound to 

follow Kansas Supreme Court precedent unless there is some indication that the Supreme 

Court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 

390 P.3d 903 (2017). We see no such indication. Johnson controls.

Accordingly, we reverse Bentley's two convictions for criminal possession of a 

firearm by a convicted felon and remand the case to the district court for a new trial on 

these charges.

Bentley's Claim of Ineffective Assistance of Trial Counsel

Bentley contends that his trial counsel provided ineffective assistance at trial by 

pursuing a guilt-based defense without Bentley's express approval. 

Following his conviction, Bentley filed a motion claiming he received ineffective 

assistance of trial counsel. The district court appointed new counsel and conducted an 

evidentiary hearing before sentencing. The district court denied Bentley's motion, finding 

that he failed to establish both deficient performance and prejudice. 
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We analyze claims of ineffective assistance of trial counsel under the tests

articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 

674, reh. denied 467 U.S. 1267 (1984), and adopted by our Supreme Court in 

Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). First, the defendant 

must show that defense counsel's performance was deficient. If so, the court must 

determine whether there is a reasonable probability that, absent defense counsel's 

deficient performance, the results of the trial would have been more favorable to the 

defendant. Khalil-Alsalaami v. State, 313 Kan. 472, 485, 486 P.3d 1216 (2021). 

To establish deficient performance the defendant must show that counsel's 

performance fell below an objective standard of reasonableness. Judicial scrutiny of 

counsel's performance must be highly deferential. A fair assessment of counsel's 

performance requires that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances surrounding the challenged conduct, and to 

evaluate the conduct from counsel's perspective at the time. The court must strongly 

presume that defense counsel's conduct fell within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the strong presumption that, 

under the circumstances, counsel's actions might be considered sound trial strategy. 313 

Kan. at 485-86.

Upon demonstrating counsel's deficient performance, the defendant then must 

show that defense counsel's deficient performance was prejudicial, i.e., that there is a 

reasonable probability that the deficient performance affected the outcome of the 

proceedings, based on the totality of the evidence. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. 313 Kan. at 486.

When, as here, the district court conducted an evidentiary hearing on Bentley's 

claims of ineffective assistance of counsel, we review the district court's factual findings 
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using the substantial competent evidence standard. We review de novo the district court's 

legal conclusions based on those facts. See 313 Kan. at 486.

Bentley's sole argument on appeal is that his counsel presented a guilt-based 

defense at trial without Bentley's approval. He states in his appellate brief: "The only real 

question is whether Mr. Bentley agreed to such a defense."

But that is not what Bentley contended at the hearing on his motion. In his opening 

statement at trial, Bentley's counsel told the jury that "this is a case of simple possession 

and that [Bentley] ought to be convicted of simple possession of methamphetamine." In 

his closing argument, defense counsel told the jury: "[W]e would ask that you find him 

guilty of simple possession of methamphetamine." At the hearing on Bentley's posttrial 

motion, he testified that his trial counsel "didn't seem like he was really trying to defend 

me. If anything, he made me look more guilty."

"Q. So his theory of the case was that you were a drug user and not a drug seller?

"A. Yes, I believe that's the defense he was going for, but he did not even—he just—yeah, he 

didn't do me right.

"Q. What do you mean, he didn't do none of that?

"A. He did a terrible job of even trying to present it as such."

Bentley testified about his interview with Detective Weidner. Bentley admitted 

that he told Weidner he possessed the methamphetamine found on his person. Then the 

following exchange occurred: 

"Q. Because of your statements that you gave to police, that the Court ruled were going 

to be admissible, where you admitted that you possessed the drugs and guns, the 

whole strategy of the case was trying to convince the jury that you were not dealing 

meth, correct?

"A. I believe that was his strategy, yes."
20

Trial counsel then testified that Bentley's case became more difficult after the 

district court denied his motion to suppress, which opened the door to the claim that 

Bentley possessed the drugs for distribution. He stated: "I think Mr. Bentley had been 

pretty consistent with me all along that this was personal use." Trial counsel said Bentley 

never denied he had the drugs from the outset of the case. 

"Q. So from the outset he never denied to you that he had those drugs?

"A. No, no, he never denied that to me. I mean, it was—he was pretty consistent this 

was personal use, he wasn't dealing.

"Q. One of the other hurdles that you had to—you had in this was that the State had a 

presumption of intent to distribute based upon the amount?"

"A. Yes.

"Q. A rebuttable presumption, but a presumption nonetheless?

"A. Yes.

"Q. So all of that together made your focus and Mr. Bentley's focus on getting the jury 

to convict him of the lesser possession of methamphetamine?

"A. We—we had this long list of things that we worked off and we just—we tried to 

pound that to them over and over. I think we talked to them in all the phases of the 

trial, over and over, about all the reasons why they should believe Mr. Bentley was 

not engaged in the distribution of these narcotics.

"Q. This strategy, was that discussed prior to the trial? 

"A. Yes."

The district court denied relief on the motion, finding that trial counsel's 

performance was not deficient. Moreover, the district court found there was no 

reasonable probability the jury would have reached a different result had trial counsel 

done anything differently.
21

Bentley relies on McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500, 200 L. Ed. 

2d 821 (2018), as support for this claim. There, the United States Supreme Court 

discussed the role of an attorney when representing a client:

"Trial management is the lawyer's province: Counsel provides his or her assistance by 

making decisions such as 'what arguments to pursue, what evidentiary objections to raise, 

and what agreements to conclude regarding the admission of evidence.' Gonzalez v. 

United States, 553 U.S. 242, 248, 128 S. Ct. 1765, 170 L. Ed. 2d 616 (2008) . . . . Some 

decisions, however, are reserved for the client—notably, whether to plead guilty, waive 

the right to a jury trial, testify in one's own behalf, and forgo an appeal. See Jones v. 

Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

"Autonomy to decide that the objective of the defense is to assert innocence 

belongs in this latter category. Just as a defendant may steadfastly refuse to plead guilty 

in the face of overwhelming evidence against her, or reject the assistance of legal counsel 

despite the defendant's own inexperience and lack of professional qualifications, so may

she insist on maintaining her innocence at the guilt phase of a capital trial. These are not 

strategic choices about how best to achieve a client's objectives; they are choices about 

what the client's objectives in fact are." McCoy, 138 S. Ct. at 1508.

While the case supports the notion that a defendant has the authority to choose 

whether to admit or deny guilt, Bentley overlooks a key fact that differentiates that case 

from his own. First, McCoy "vociferously insisted that he did not engage in the charged 

acts and adamantly objected to any admission of guilt." 138 S. Ct. at 1505. And in the 

first paragraph of the opinion, the Court stated: 

"In Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), 

this Court considered whether the Constitution bars defense counsel from conceding a 

capital defendant's guilt at trial 'when [the] defendant, informed by counsel, neither 

consents nor objects,' id., at 178, 125 S. Ct. 551. In that case, defense counsel had several 

times explained to the defendant a proposed guilt-phase concession strategy, but the 

defendant was unresponsive. Id., at 186, 125 S. Ct. 551. We held that when counsel 

confers with the defendant and the defendant remains silent, neither approving nor 
22

protesting counsel's proposed concession strategy, id., at 181, 125 S. Ct. 551, '[no] 

blanket rule demand[s] the defendant's explicit consent' to implementation of that 

strategy, id., at 192, 125 S. Ct. 551." McCoy, 138 S. Ct. at 1505.

Here, Bentley knew about the theory of defense. Trial counsel specifically stated 

that he discussed it with Bentley before trial. Indeed, Bentley did not express problems 

with the strategy so much as he believed trial counsel could have done a better job of 

presenting the theory to the jury. Bentley repeatedly stated to trial counsel that while he 

possessed the methamphetamine, and had admitted to the police that he had done so, he 

had no intent to distribute it. Nothing in the record suggests that Bentley vociferously 

argued against employing the strategy like the defendant in McCoy. See 138 S. Ct. at 

1505. 

Bentley also relies on State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000). There,

the defendant, who had been convicted of first-degree murder and other crimes, argued 

on appeal that his trial counsel violated his rights under the Sixth Amendment to the 

United States Constitution by presenting a theory of defense inconsistent with his claim 

of innocence. Carter maintained his innocence throughout the trial, but his trial counsel's

strategy directed the jurors toward a felony-murder conviction rather than a premeditated 

first-degree murder conviction. Trial counsel apparently employed that strategy because 

"[t]here was no defense evidence; the State's evidence placed Carter in the midst of the 

robbery and identified him as the person who shot and killed the victim." 270 Kan. at 

429.

Our Supreme Court reversed Carter's conviction and granted him a new trial based 

on trial counsel's actions. In doing so, the court stated that it is solely the defendant's 

decision whether to enter a plea of guilty or not guilty; a decision trial counsel effectively 

disregarded by pursuing a guilt-based defense. "It is a fundamental constitutional right 

guaranteed to a defendant, and defense counsel's imposing a guilt-based defense against 
23

Carter's wishes violated his Sixth Amendment right to counsel and denied him a fair 

trial." 270 Kan. at 441.

Bentley's case is distinguishable from Carter for the same reasons it is 

distinguishable from McCoy. Trial counsel discussed the theory of defense with Bentley 

before trial. During the hearing on Bentley's posttrial motion, he did not express any 

disagreement with this strategy. His criticism was that his trial counsel could have done a 

better job of presenting the theory to the jury. At no point during the hearing did Bentley 

state that he did not want counsel to proceed with a guilt-based defense in an effort to 

avoid a conviction on the more serious charge of possession with intent to distribute. The 

evidence does not show that trial counsel abandoned Bentley or took any actions against 

his wishes. Bentley has failed to establish that trial counsel's performance fell below an 

objective standard of reasonableness. See Khalil-Alsalaami, 313 Kan. at 485-86. The 

district court did not err in denying relief on Bentley's motion based on claimed 

ineffective assistance of trial counsel.

The District Court's Failure to Instruct the Jury on a Lesser-Included Crime

Bentley argues the district court erred when it failed to instruct the jury on lesser 

included offenses of possession of methamphetamine with intent to distribute for 

amounts less than 3.5 grams of methamphetamine. 

Bentley acknowledges his failure to request lesser included instructions during 

trial. As a result, we apply the clearly erroneous standard. See K.S.A. 2020 Supp. 22-

3414(3). Under this standard, we will reverse only if we are firmly convinced the jury 

would have reached a different verdict if lesser included instructions had been given. 

Bentley has the burden to show both error and prejudice. See State v. Crosby, 312 Kan. 

630, 639, 479 P.3d 167 (2021).
24

Under K.S.A. 2020 Supp. 21-5109(b)(1), a crime is a lesser included crime if it is 

a lesser degree of the same crime. The severity level of possession with intent to 

distribute methamphetamine is determined by the quantity of methamphetamine a 

defendant possessed:

• Less than 1 gram—level 4;

• 1 to less than 3.5 grams—level 3;

• 3.5 to less than 100 grams—level 2;

• 100 grams or more—level 1. See K.S.A. 2020 Supp. 21-5705(d)(3).

Bentley was convicted of a level 2 crime. Had he possessed a lesser amount of 

methamphetamine with intent to distribute, he would have committed a lesser included 

crime—either a level 3 crime or a level 4 crime, depending on the amount. Thus, the 

parties agree that instructions for possession of methamphetamine with intent to 

distribute lesser amounts of methamphetamine would have been legally appropriate

because they would have been lesser degrees of the crime with which he was charged. 

Here, the sole question is whether lesser included instructions would have been

factually appropriate. To be factually appropriate, there must have been sufficient 

evidence, viewed in the light favoring Bentley, that would have supported giving such

lesser included instructions. See State v. Holley, 313 Kan. 249, 255, 485 P.3d 614 (2021).

Bentley argues such instructions would have been factually appropriate because the State 

did not present testimony about the amount of methamphetamine he planned to distribute.

The police found two baggies of methamphetamine on Bentley's person when he 

was searched—one weighing 7.13 grams and the other weighing 20.57 grams. Bentley 

told Detective Weidner he planned to use the methamphetamine from the smaller bag for 

his own personal use but that he planned to "break the house off" with the larger bag, 

which Weidner understood to mean that Bentley intended to give methamphetamine to 
25

people in exchange for them providing him with a place to stay. Thus, this larger bag was 

sufficient in and of itself to support his conviction of a level 3 crime under K.S.A. 2020 

Supp. 21-5705(d)(3)(C). 

In State v. Palmer, No. 110,624, 2015 WL 802733 (Kan. App. 2015) (unpublished 

opinion), the police discovered over 10 grams of methamphetamine on Palmer's person

after searching him during a traffic stop. On appeal, he argued that a lesser included 

instruction for possession with intent to distribute less than 3.5 grams of 

methamphetamine "would have been factually appropriate because there was some 

evidence that at least a portion of the methamphetamine found in his possession was for 

his personal use rather than for distribution." 2015 WL 802733, at *7. This court rejected 

the argument:

"K.S.A. 2014 Supp. 21-5705 only requires proof of the quantity of a controlled substance 

found in a defendant's possession, not the quantity that the defendant may have intended 

to distribute. Because Palmer did not possess less than 3.5 grams of methamphetamine, 

lesser included instructions corresponding to severity levels 3 and 4 possession with 

intent to distribute methamphetamine were not factually appropriate." 2015 WL 802733, 

at *7.

We find Palmer to be persuasive. There was no need for the district court to instruct on 

lesser included forms of the crime of possession of methamphetamine with the intent to 

distribute. We find no error by the district court in instructing the jury on this issue. 

The Constitutionality of the Rebuttable Presumption of an Intent to Distribute 

Methamphetamine

Under K.S.A. 2020 Supp. 21-5705(e)(2), "there shall be a rebuttable presumption 

of an intent to distribute if any person possesses . . . 3.5 grams or more of . . . 
26

methamphetamine." Bentley argues that applying this statutory presumption to him in 

this case was an unconstitutional deprivation of his rights to due process.

Interpreting this statute is a matter of law over which we have unlimited review. 

State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021). Similarly, Bentley's constitutional

challenge is an issue of law that calls for unlimited review. State v. Bodine, 313 Kan. 378, 

396, 486 P.3d 551 (2021). Because Bentley did not raise this issue before the district 

court, we apply the clear error standard if it is appropriate for us to consider the matter at 

all. Crosby, 312 Kan. at 639. We ordinarily do not entertain constitutional challenges that 

were not raised below. But under a well-recognized exception we will do so here because 

Bentley asserts a claim that he was denied his fundamental right to due process. See State 

v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).

Here, in accordance with our Pattern Instructions of Kansas (PIK) Crim. 4th 

57.022 (2013 Supp.), the court instructed the jury: 

"If you find the defendant possessed 3.5 grams or more of methamphetamine, 

you may infer that the defendant possessed with intent to distribute. You may consider

the inference along with all the other evidence in the case. You may accept or reject it in 

determining whether the State has met the burden of proving the intent of the defendant. 

This burden never shifts to the defendant." (Emphasis added.)

We find particularly instructive the holding in State v. Strong, 61 Kan. App. 2d 31, 

499 P.3d 481 (2021), petition for rev. filed October 12, 2021, in which the court 

distinguished between a permissive and a mandatory statutory presumption. "'A 

mandatory presumption instructs the jury that it must infer the presumed fact if the State 

proves certain predicate facts. A permissive inference suggests to the jury a possible 

conclusion to be drawn if the State proves predicate facts, but does not require the jury to 

draw that conclusion.'" 61 Kan. App. 2d at 35 (quoting Francis v. Franklin, 471 U.S. 
27

307, 314, 105 S. Ct. 1965, 85 L. Ed. 2d 344 [1985]). The court found the presumption to 

be permissive and constitutional, stating:

"We agree with the reasoning of another panel of this court that addressed the 

mandatory versus permissive presumption issue in the context of marijuana possession 

under K.S.A. 2014 Supp. 21-5705(e)(1). In State v. Jimenez, No. 111,659, 2015 WL 

5036738 (Kan. App. 2015) (unpublished opinion), the panel held:

"'. . . [T]he presumption set forth in K.S.A. 2014 Supp. 21-

5705(e)(1) is permissive in nature and merely suggests the existence of a 

relationship between a fact proved and a fact presumed. Permissive 

presumptions are rebuttable and do not require the jury to convict after 

the State has made a prima facie case. Notably, a permissive presumption 

affirmatively permits the jury to return a verdict in favor of the defendant 

even if the defendant fails to introduce any evidence.' 2015 WL 5036738, 

at *4.

"Although Jimenez dealt with possession of marijuana under K.S.A. 2014 Supp. 

21-5705(e)(1) rather than methamphetamine under (e)(2), the relevant language of K.S.A. 

2018 Supp. 21-5705(e)—'there shall be a rebuttable presumption of an intent to 

distribute'—remains the same if the defendant possesses a certain weight of the drug. 

This presumption is permissive in nature. See State v. Haremza, 213 Kan. 201, 203-04, 

515 P.2d 1217 (1973) ('Statutory presumptions are ordinarily rebuttable. . . . [They do] 

not alter the ultimate burden of proof resting upon the prosecution.'). Unlike the 

mandatory presumptions discussed in Francis, 471 U.S. at 314, K.S.A. 2018 Supp. 21-

5705(e) does not instruct the jury it must infer that the defendant intended to distribute 

the drug if the defendant possessed a certain amount. The State retains its burden of 

persuasion. Instead, the provision creates a permissive inference telling the jury it may 

infer intent to distribute if the State proves the defendant possessed the requisite weight 

of the drug. K.S.A. 2018 Supp. 21-5705(e) does not violate the Due Process Clause 

because this inference is one justified by reason and common sense. See 471 U.S. at 314-

15. K.S.A. 2018 Supp. 21-5705(e) is facially constitutional." Strong, 61 Kan. App. 2d at 

38.
28

The court in Strong went on to assess the legal appropriateness of the instruction 

given to the jury. The instruction given there—entitled Instruction 6—mirrors the 

instruction the district court gave to the jury here. See 61 Kan. App. 2d at 39-40. This

court rejected that challenge as well, reasoning:

"Instruction No. 6 fairly stated the law on K.S.A. 2018 Supp. 21-5705(e)(2)'s 

rebuttable presumption because it was based on the PIK and accurately informed the jury 

that a rebuttable presumption of intent to distribute exists under the law if a person 

possesses 3.5 grams or more of methamphetamine. See State v. Butler, 307 Kan. 831, 

847, 416 P.3d 116 (2018) (Supreme Court strongly recommends use of PIK instructions). 

It also informed the jury it could choose to reject the evidentiary presumption. Because 

K.S.A. 2018 Supp. 21-5705(e)(2) creates a permissive presumption, not a mandatory one 

as Strong argues, the instruction accurately reflects the law. Moreover, the district court 

correctly instructed the jury that the burden to prove criminal intent always remained 

with the State and never shifted to Strong. Instruction No. 6 was legally appropriate."

Strong, 61 Kan. App. 2d at 40-41.

Based on the foregoing analysis, we conclude that K.S.A. 2020 Supp. 21-5705(e)(2) is 

facially constitutional.

Bentley also contends that the district court erred in giving this instruction. We 

disagree. The instruction followed the appropriate PIK instruction. Our Supreme Court 

strongly recommends the use of our PIK instructions. State v. Butler, 307 Kan. 831, 847, 

416 P.3d 116 (2018). The instruction accurately stated the law embodied in K.S.A. 2020 

Supp. 21-5705(e)(2). It informed the jury of the presumption of intent to distribute based 

on possessing 3.5 grams or more of methamphetamine. It informed the jury that the 

presumption was permissive—"you may infer" and "[y]ou may accept or reject it"—

rather than mandatory. The instruction affirmed the State's "burden of proving the intent 

of the defendant" which "never shifts to the defendant." We find no error in the district 

court giving this instruction.
29

The Sufficiency of the Evidence to Support Bentley's Conviction of Driving with a 

Suspended or Canceled License

Finally, Bentley contends the evidence was insufficient to convict him of driving 

while his license was suspended or canceled. In considering this claim, we review the 

evidence in the light favoring the State to determine whether a rational fact-finder could 

have found Bentley guilty beyond a reasonable doubt. In doing so, we do not reweigh the 

evidence, resolve conflicts in the evidence, or reweigh the credibility of the witnesses.

State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). "[O]nly when the testimony is 

so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt 

should we reverse a guilty verdict." State v. Meggerson, 312 Kan. 238, 247, 474 P.3d 761 

(2020).

When Officer Long approached Bentley's stopped vehicle, Bentley initially tried 

to identify himself by his Kansas Department of Corrections number. Long then asked 

Bentley for his driver's license. Bentley responded that he did not have one. 

Long then obtained Bentley's name and other information and relayed that information to 

Officer Inkelaar, who returned to his police car and ran the information through the 

Special Police Information Data Entry Retrieval (SPIDER) police database and learned 

that Bentley had two outstanding warrants and that his driver's license had been

suspended.

To establish this crime the State had to prove that Bentley drove "a motor vehicle 

on any highway of this state at a time when such person's privilege so to do is canceled, 

suspended or revoked." K.S.A. 2020 Supp. 8-262(a)(1). Because K.S.A. 2020 Supp. 8-

255(d) required the Division of Motor Vehicles to notify Bentley in writing that his 

license had been suspended, the State also had to prove that it mailed notification of the 

license suspension to Bentley. See State v. Jones, 231 Kan. 366, 368, 644 P.2d 464

(1982).
30

But in State v. Campbell, 24 Kan. App. 2d 553, 556, 948 P.2d 684 (1997), the 

court concluded that there was no need for the State to introduce evidence that the 

Division of Motor Vehicles had sent a notice of suspension to the defendant when the 

defendant admitted that he knew that his license had been suspended. When Campbell 

challenged the sufficiency of the evidence to support this conviction, this court held that 

the State's failure to present evidence of compliance with K.S.A. 1996 Supp. 8-255(d) did 

not preclude Campbell's conviction because the purpose of mailing the written notice was 

to establish the presumption that the licensee knew his license had been suspended. Thus, 

"[w]hen a defendant has actual knowledge that his or her license has been suspended, . . .

the State is not required to present direct evidence that there has been compliance with 

K.S.A. 1996 Supp. 8-255(d) in a prosecution under K.S.A. 1996 Supp. 8-262." 24 Kan. 

App. 2d at 556; see also State v. Hershberger, 27 Kan. App. 2d 485, 495-96, 5 P.3d 1004 

(2000). 

Here, there is direct evidence from Bentley that he did not have a valid driver's 

license and that he knew it. He did not say that he had a license but had left it at home, or 

some other excuse for not displaying his driver's license. He simply stated that he did not 

have a license. The officer confirmed the accuracy of Bentley's statement when he found 

that the SPIDER police database reported that Bentley's driver's license was suspended. 

Under the holding in Campbell, and viewing the evidence in the light favoring the State, 

the prevailing party, we conclude that the State was not required to introduce evidence 

that written notice of the suspension had been sent to Bentley when he told the officer he 

knew his license was suspended. We find sufficient evidence to support this conviction.

Affirmed in part, reversed in part, and remanded with directions.
31

* * *

GARDNER, J., concurring: I agree with the majority opinion on all issues but the 

second. I concur with the majority opinion on that issue because it faithfully follows the 

relevant Kansas Supreme Court precedent of State v. Johnson, 310 Kan. 909, 453 P.3d 

281 (2019). I write separately, however, to respectfully encourage the Kansas Supreme 

Court to reconsider its holding in Johnson that a district court errs by accepting a 

defendant's stipulation to one element of a crime without first getting defendant's separate 

jury trial waiver on the record. Bentley's case presents a common scenario—although he 

stipulated to one element of the crime, his not guilty plea remained intact, the prosecution 

still bore the burden to prove at trial each element of the charged crimes beyond a 

reasonable doubt, and the jury decided each count against him. In these routine 

circumstances, as the State contends, it strains reason to hold that a stipulation to one 

element amounts to a guilty plea requiring a jury trial waiver. See State v. Harned, 281 

Kan. 1023, 1045, 135 P.3d 1169 (2006) ("A guilty plea admits all elements of the crime 

charged."). 

The Nature of a Stipulation to an Element

A defendant's stipulation to a prior crime in a felon in possession case is 

encouraged by law. See Old Chief v. United States, 519 U.S. 172, 189-90, 117 S. Ct. 644, 

136 L. Ed. 2d 574 (1997) (If a criminal defendant offers to stipulate to his or her felon 

status, the State and the district court must accept that stipulation, contrary to the general 

rule that the State may prove its case against the defendant "free from any defendant's 

option to stipulate the evidence away."). This is because this kind of a stipulation is for 

the defendant's benefit. See State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999)

("Unless there is a dispute over the status of the prior conviction . . . the admission of the 

type and nature of the prior crime can only prejudice the jury.").
32

A stipulation neither relieves the State from its burden of proving all elements of 

the crime to the jury, nor waives a defendant's right to a jury trial. Instead, it merely 

relieves the State from its duty to present evidence on the stipulated element of the crime. 

A stipulation is simply a "voluntary agreement between opposing parties concerning 

some relevant point." Black's Law Dictionary 1712 (11th ed. 2019). In other words, a 

stipulation tells the jury that both sides agree that a particular fact or facts are true. See 

State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481 (2012) (a defendant waives his right 

to contest the factual evidence in a stipulation). A defendant's affirmative stipulation to a 

specific factual element is the equivalent of a jury finding on that issue. United States v. 

Sanchez, 269 F.3d 1250, 1271 n.40 (11th Cir. 2001) (en banc), abrogated in part on other 

grounds as recognized by United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005). 

A stipulation does not mean that the stipulated element is removed from the jury's 

consideration, as would occur with a jury trial waiver; rather a stipulation means that the 

jury must consider the stipulated element but should find it proven. 

Kansas Precedent Differs from Johnson

Before Johnson, our Supreme Court squarely held that a district court need not get 

a jury trial waiver from a defendant before a defendant stipulates to an element during a 

jury trial. White v. State, 222 Kan. 709, 712-14, 568 P.2d 112 (1977). Johnson does not 

overrule, distinguish, or even mention White.

Yet White's rationale is compelling:

"White entered a plea of not guilty, and thus he retained all of the rights of such a plea, 

including the right to appeal upon conviction. The duty of the trial court to advise him of 

the effects of a possible guilty plea terminated upon his entry of a plea of not guilty.

"The mere fact that White stipulated as to the evidence did not amount to the 

entry of a plea of guilty. Stipulations between trial counsel even without the written 

consent of the parties are commonplace, and are binding upon the parties represented. 
33

Stipulations as to the evidence in criminal cases, waiving jury trial and consenting to trial 

to the court, are permissible under our statutes. State v. Kinnell, 197 Kan. 456, 419 P.2d 

870; and see State v. Teeslink, 177 Kan. 268, 278 P.2d 591.

"We know of no case or statute holding that a trial court must interrogate and 

advise a defendant, who is represented by counsel, before accepting and approving 

stipulations as to the evidence, and we are not prepared to initiate such a requirement." 

222 Kan. at 713.

White's holding also reflects our longstanding jurisprudence—apparently 

jettisoned by Johnson—that criminal defendants are charged with deciding only what 

plea to enter, whether to waive jury trial, and whether to testify, but all other decisions lie 

with defense counsel who is not required to specifically consult with the defendant first. 

State v. Rivera, 277 Kan. 109, 116-17, 83 P.3d 169 (2004); see State v. Laturner, 289 

Kan. 727, 739, 218 P.3d 23 (2009) (the right of confrontation falls into the class of rights 

that defense counsel can waive through strategic decisions, such as by stipulating to the 

admission of evidence); State v. Kinnell, 197 Kan. 456, 461, 419 P.2d 870 (1966) (the 

accused may waive his right to cross-examination and confrontation and that waiver may 

be done by counsel as a matter of trial tactics or strategy). Based on White, we rejected 

the claim in a felon in possession case that defendant's stipulation to felon status required 

a knowing and voluntary jury trial waiver as to that element because it removed an 

element of the crime from the jury's consideration. See, e.g., State v. Housworth, No. 

115,836, 2017 WL 2834502, at *15-16 (Kan. App. 2017) (unpublished opinion).

Johnson's Rationale and Holding is Unsupported by Law

In Johnson, the court ignored White and cases such as those above, rejecting the 

State's assertion that a stipulation to an element of a crime did not amount to a guilty plea 

so it did not require a jury trial waiver. But Johnson's reasoning was scant:
34

"The Fifth and Sixth Amendments to the United States Constitution 'entitle [] criminal 

defendant[s] to "a jury determination that [he] is guilty of every element of the crime with 

which he is charged, beyond a reasonable doubt."' Apprendi v. New Jersey, 530 U.S. 466, 

476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (citing United States v. Gaudin, 515 

U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 [1995]). And when a defendant 

stipulates to an element of a crime, the defendant has effectively given up his or her right 

to a jury trial on that element. United States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006) 

(quoting United States v. Mason, 85 F.3d 471, 472 [10th Cir. 1996]).

"We have consistently held that jury trial waivers 'should be strictly construed to 

ensure the defendant has every opportunity to receive a fair and impartial trial by jury.' 

See, e.g., Beaman, 295 Kan. at 858. And because every defendant has the fundamental 

right to a jury trial, courts cannot accept a jury trial waiver '"unless the defendant, after 

being advised by the court of his right to trial by jury, personally waives his right to trial 

by jury, either in writing or in open court for the record."' State v. Irving, 216 Kan. 588, 

589-90, 533 P.2d 1225 (1975) (noting that a waiver will not be presumed from a silent 

record)." 310 Kan. at 918-19.

Our Supreme Court then unanimously ruled, without further analysis, that accepting the 

stipulation to an element without a waiver was reversible error because it violated the 

defendant's right to jury trial. 310 Kan. at 918-19. 

On remand, a panel of this court reversed the conviction and remanded for a new 

trial on this charge. State v. Johnson, No. 113,228, 2020 WL 2091067, at *9 (Kan. App.) 

(unpublished opinion), rev. denied 312 Kan. 897 (2020). As we are duty bound to do, our 

later cases have followed Johnson. See, e.g., State v. Portillo-Ventura, No. 122,229, 2022 

WL 569362, at *10-11 (Kan. App. 2022) (unpublished opinion) (summarizing cases); 

State v. Munoz, No. 121,770, 2022 WL 129005, at *12 (Kan. App. 2022) (unpublished 

opinion). 
35

Federal Law Conflicts with Johnson

For its essential finding, Johnson relied on Mason and Smith, but these cases fail 

to support Johnson's conclusion. The United States prosecuted the criminal defendant in 

Mason under 18 U.S.C. § 922(g)—the felon in possession statute—and the parties 

stipulated that § 922(g)'s prior felony conviction and interstate commerce elements were 

met. At trial, the district court instructed the jury that because the parties had stipulated to 

those two § 922(g) elements, "the government need not offer proof as to these elements, 

and you should consider them proven by the government." 85 F.3d at 472. On appeal, the 

defendant argued that the district court erred by withholding the stipulated elements from 

the jury's consideration. 

Finding no error in the district court's jury instruction, the Tenth Circuit reasoned:

"[T]he jury need not resolve the existence of an element when the parties have stipulated 

to the facts which establish that element. . . . [T]he judge has not removed the 

consideration of an issue from the jury; the parties have. More specifically, by stipulating 

to elemental facts, a defendant waives his right to a jury trial on that element. If such a 

partial waiver runs afoul of the Sixth Amendment, then traditional, wholesale waivers 

manifest in bench trials and guilty pleas must necessarily violate the right to a jury trial." 

85 F.3d at 472-73. 

Thus, Mason does not suggest that a defendant's stipulation to one element 

requires a jury trial waiver colloquy, as Johnson held. To the contrary, Mason held that 

"by stipulating to elemental facts, a defendant waives his right to a jury trial on that 

element." Mason, 85 F.3d at 472; see United States v. Meade, 175 F.3d 215, 223 (1st Cir. 

1999); United States v. Wittgenstein, 163 F.3d 1164, 1169 (10th Cir. 1998) (same);

United States v. McBride, 26 Fed. Appx. 785, 786 (10th Cir. 2001) (unpublished opinion) 

(same); see also United States v. Prentiss, 206 F.3d 960, 976 (10th Cir. 2000), on reh'g en 

banc, 256 F.3d 971 (10th Cir. 2001), overruled on other grounds as recognized by United 
36

States v. Langford, 641 F.3d 1195 (10th Cir. 2011); Poole v. United States, 832 F.2d 561, 

563 (11th Cir. 1987) (factual stipulations may waive the government's burden of proving 

an element of the offense and thus waive a defendant's right to a jury trial on that element 

of the offense). In other words, a stipulation to an element is itself a sufficient waiver of 

the right to a jury trial on that element. It does not require a separate jury trial waiver 

because an elemental stipulation preserves rather than waives a defendant's right to a jury 

trial. 

Nor did Smith address the issue Johnson cited it for. Instead, Smith examined 

whether an insufficient evidence argument could succeed when the State had not read 

defendant's stipulation into evidence before it rested, but the court had included the 

stipulation as an instruction. Smith found the jury instruction sufficient:

"But the very nature of a defendant's waiver is that it frees the government from the 

obligation to present any evidence regarding the element in question. Certainly the 

government must inform the jury of the defendant's stipulation at some point, in order to 

provide jurors with the information they need to convict under the statute. Yet the 

stipulation is not itself evidence; it is an admission—a waiver of the right to demand 

evidence." United States v. Smith, 472 F.3d 752, 753 (10th Cir. 2006). 

Smith says nothing to support Johnson's conclusion that a stipulation to an element 

amounts to a guilty plea requiring a separate jury trial waiver. 

Federal law in general contradicts Johnson's holding. Under federal law, a district 

court need not directly question the defendant about a factual stipulation and the court 

may accept it "so long as the defendant does not dissent from his attorney's decision." 

Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999) (upholding evidentiary 

stipulation against Sixth Amendment challenge because no evidence showed that the 

defendant disagreed with or objected to his counsel's decision); cf. United States v. 

Herndon, 982 F.2d 1411, 1418 (10th Cir. 1992) (advising but not requiring a district 
37

court to address defendant directly to ensure that the "stipulation is entered into 

voluntarily, that the defendant understands the stipulation, and that the stipulation has a 

factual basis").

Federal courts do not generally require Rule 11 warnings when a defendant 

stipulates to only an element of a crime. See Fed. R. Crim. Proc. 11 (requiring district 

courts to ensure that a defendant understands the rights attendant to a jury trial and that 

trial rights are waived if the court accepts a guilty plea). Under federal law, giving up

one's right to a jury trial on an element of a crime does not constitute a guilty plea to all 

elements of the crime and is not a de facto guilty plea. See United States v. Muse, 83 F.3d 

672, 681 (4th Cir. 1996) (rejecting as "meritless" defendant's argument that Rule 11

procedures were required when the court removed the stipulated elements from the jury's 

consideration because "the jury was still required to consider and return a verdict finding 

Muse guilty of all of the elements of the offense"); United States v. Ferreboeuf, 632 F.2d 

832, 836 (9th Cir. 1980) (rejecting a rule requiring the trial judge to question defendants 

personally as to the voluntariness of any stipulation of crucial fact because that rule 

would needlessly delay and confuse the conduct of a typical trial); United States v. Hicks, 

495 Fed. Appx. 633, 642-43 (6th Cir. 2012) (unpublished opinion) (defendant's 

stipulation to most elements of being a felon in possession of a firearm did not amount to 

a de facto guilty plea requiring evidence that defendant had entered into the stipulations 

voluntarily and knowingly); United States v. Monghan, 409 Fed. Appx. 872, 874-78 (6th 

Cir. 2011) (unpublished opinion) (stipulations did not amount to a de facto guilty plea 

and thus did not require evidence that defendant had entered into the stipulations 

voluntarily and knowingly); cf. Smith v. Armontrout, 692 F. Supp. 1079, 1086-87 (W.D. 

Mo. 1988), aff'd 888 F.2d 530 (8th Cir. 1989) (finding meritless the claim that the trial 

court's failure to conduct an on-the-record inquiry into petitioner's voluntary and 

intelligent consent to a stipulated admission violates petitioner's due process rights under 

the Fourteenth Amendment).
38

Contrary to Johnson's holding, under federal law, only when a defendant stipulates 

to all the elements of an offense or otherwise reduces the government's burden so much 

that the stipulation amounts to a de facto guilty plea may a district court need to conduct 

a colloquy in compliance with the governing statutes. See Julian v. United States, 236 

F.2d 155, 158 (6th Cir. 1956) (when defendant stipulated to felonious intent—the 

controlling issue in the case—the stipulations amounted to a plea of guilty, so the trial 

judge should have asked whether defendant understood the charge and voluntarily 

acquiesced in the stipulations); Muse, 83 F.3d at 681 ("although Muse stipulated to two 

of the elements, he vigorously contested the existence of the third, and most critical, 

element at trial," so his stipulations did not amount to a guilty plea and Rule 11 did not 

apply); Monghan, 409 Fed. Appx. at 875 (when a defendant "stipulates to all of the 

elements of an offense or otherwise so reduces the government's burden that the 

stipulation amounts to a de facto guilty plea, the district court should conduct a colloquy 

in compliance with Rule 11"); cf. Owan v. Galaza, No. 98-55580, 1998 WL 911882, at 

*2 (9th Cir. 1998) (unpublished opinion) ("[A] plea of not guilty in combination with a 

stipulated facts trial is simply not equivalent to a guilty plea for Boykin purposes, even if 

the stipulation is to all elements necessary to a conviction," so no waiver of rights is 

required before the admission of stipulated evidence.). See also 17 A.L.R. 4th 61 Guilty 

plea safeguards as applicable to stipulation allegedly amounting to guilty plea in state 

criminal trial (collecting state cases for and against the position that the trial judge must 

admonish the defendant as to his constitutional rights just as if the defendant pleaded 

guilty, when the defendant stipulates to evidence which in effect amounts to a guilty 

plea).

Bentley's stipulation does not meet the de facto guilty plea test—he did not 

stipulate to all the elements of the felon in possession charge or otherwise reduce the 

State's burden so much that his stipulation was somehow like a guilty plea. Instead, by his 

stipulation, Bentley waived only his right to make the State present evidence that he had a 

felony conviction within the last five years and was thus prohibited from possessing a 
39

firearm on the date of his current crimes. And despite Bentley's stipulation to his felon 

status, he contested the critical criminal elements of his offense—that he possessed the 

firearms listed in Instructions 8 and 9 on the date and at the place stated. "In no way did 

[his] stipulation amount to a plea of guilty, and a colloquy was therefore not required." 

Monghan, 409 Fed. Appx. at 876.

Alternatively, Harmless Error Applies

But even if we assume, as Johnson did, that a stipulation to any element amounts 

to a de facto guilty plea and thus requires a jury trial waiver, we should apply the 

harmless error rule, rather than reverse the conviction, when a court fails to get a separate 

knowing and voluntary jury trial waiver on the record. In the analogous situation when 

the omission of an element from a jury instruction compromises a defendant's 

constitutional right to jury trial, we review that mistake for harmlessness. Neder v. United 

States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The Kansas Supreme 

Court has so held: "When a reviewing court concludes beyond a reasonable doubt that 

the omitted element of a crime from a jury instruction was uncontested and supported by 

overwhelming evidence, such that the jury verdict would have been the same absent the 

error, the erroneous instruction is properly found to be harmless." State v. Carr, 314 Kan. 

744, Syl. ¶ 12, 502 P.3d 511 (2022); see also State v. Richardson, 290 Kan. 176, 182-83, 

224 P.3d 553 (2010).

Federal courts apply the harmless error rule in comparable situations. When a 

defendant fails to object to a Rule 11 error, federal courts review for plain error, not 

structural error. See United States v. Denkins, 367 F.3d 537, 545 (6th Cir. 2004) 

("Because Defendant failed to object to this plea colloquy, we review [Defendant's claim 

that the district court did not adequately ensure that he understood the charges against 

him] only for plain error.") (citing United States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 

1043, 152 L. Ed. 2d 90 [2002] [holding that plain-error review applies when a defendant 
40

fails to object to a Rule 11 error]); United States v. Keesee, 275 Fed. Appx. 488, 492 (6th 

Cir. 2008) (unpublished opinion) ("Keesee made no reference to Rule 11 during the 

proceedings. . . . We engage in plain-error review of purported violations of Rule 11 

when the defendant did not raise an objection before the district court.") (citing United 

States v. Murdock, 398 F.3d 491 [6th Cir. 2005]); Monghan, 409 Fed. Appx. at 875 

("Monghan did not object to the court's failure to question him about the stipulation. 

Accordingly, plain-error review applies.").

We should apply the harmless error analysis here. Although an uninformed waiver 

of one's right to an entire jury trial would automatically entitle the defendant to relief, an 

uninformed stipulation to a single element is reviewable for harmless error, just as if the 

district court had erroneously omitted that element from the jury instructions. See State v. 

Brooks, No. 113,636, 2017 WL 839793 (Kan. App. 2017) (unpublished opinion); cf. 

Connecticut v. Johnson, 460 U.S. 73, 87, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983) (finding 

jury instruction error in state trial involving an essential element of crime harmless error 

without implicating the Fifth and Sixth Amendments when defendant stipulated to facts 

establishing the essential element). 

The harmless error test, as applied here, asks whether the record contains evidence 

that could rationally lead to a contrary finding on the omitted element—if not, no 

fundamental undermining of the right to a jury trial occurs.

"A reviewing court making this harmless-error inquiry does not, as Justice 

Traynor put it, 'become in effect a second jury to determine whether the defendant is 

guilty.' Traynor, supra, at 21. Rather a court, in typical appellate-court fashion, asks 

whether the record contains evidence that could rationally lead to a contrary finding with 

respect to the omitted element. If the answer to that question is 'no,' holding the error 

harmless does not 'reflec[t] a denigration of the constitutional rights involved.' Rose, 478 

U.S., at 577. On the contrary, it 'serve[s] a very useful purpose insofar as [it] block[s] 

setting aside convictions for small errors or defects that have little, if any, likelihood of 
41

having changed the result of the trial.' Chapman, 386 U.S., at 22." Neder, 527 U.S. at 19 

(finding the District Court's failure to submit the element of materiality to the jury with 

respect to tax charges was harmless error).

In Neder, when a defendant did not, and apparently could not, bring forth facts contesting 

the omitted element, answering whether the jury verdict would have been the same 

without the error did not fundamentally undermine the purposes of the jury trial 

guarantee. 527 U.S. at 19.

Applying the harmless error test here yields the same result. The sole element 

Bentley stipulated to was the fact of his prior conviction. That Bentley had been 

convicted of a felony within the five years preceding his trial was based on objective 

facts that could easily be proven through disinterested witnesses. His stipulation was 

routine. Bentley stipulated to facts that were facially valid or easy to verify, so Bentley's 

lawyer correctly recognized them to be essentially uncontestable and as providing no 

suggestion of reasonable doubt. The stipulation, as the sole substantive information given 

to jurors about those facts, made proof of this element overwhelming and undisputed. 

The narrow factual issue covered in the stipulation would not have furnished even a 

colorable defense, as the decision to stipulate itself reflected. Those considerations 

together render any error harmless under the stringent standard required by Neder and 

Carr. Bentley could not contest that element with facts, so answering whether the jury 

verdict would have been the same without the error does not fundamentally undermine 

the purposes of the jury trial guarantee. See Neder, 527 U.S. at 19. Any violation of 

Bentley's rights to a jury trial is harmless error. See Brooks, 2017 WL 839793, at *9-10.

For those reasons, I respectfully ask the Kansas Supreme Court to revisit 

Johnson's holding on this issue.