Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

TRACY G. HUTTON, 

Petitioner, 

v. 

STATE OF ALASKA, 

Respondent. 

) 

) Supreme Court No. S-15266 

Court of Appeals No. A-10836 

Superior Court No. 3AN-08-11797 CR 

O P I N I O N 

No. 7014 – June 5, 2015 

) 

) 

) 

) 

) 

) 

) 

_______________________________ ) 

Petition for Hearing from the Court of Appeals of the State of 

Alaska, on appeal from the Superior Court of the State of 

Alaska, Third Judicial District, Anchorage, Patrick J. McKay 

and Jack W. Smith, Judges. 

Appearances: Renee McFarland, Assistant Public Defender, 

and Quinlan Steiner, Public Defender, Anchorage, for 

Petitioner. Kenneth M. Rosenstein, Assistant Attorney 

General, Office of Special Prosecutions and Appeals, 

Anchorage, and Michael C. Geraghty, Attorney General, 

Juneau, for Respondent. 

Before: Fabe, Chief Justice, Stowers, and Maassen, Justices. 

[Winfree and Bolger, Justices, not participating.] 

STOWERS, Justice. 

I. INTRODUCTION 

A man was arrested and charged with three counts of weapons misconduct. 

After the first two counts were tried to a jury, he waived his right to a jury trial and the 
 

 

 

 

 

 

 

third count was tried to the court. He was convicted and appealed, arguing that he had 

not effectively waived his constitutional right to a jury trial. The court of appeals 

affirmed his conviction, holding that substantial evidence supported his waiver. We 

granted his petition for hearing to decide the appropriate standard of review for the 

waiver of the right to a jury trial. We now conclude that an appellate court should review 

the superior court’s factual findings for clear error and its ultimate conclusion regarding 

the waiver’s constitutional validity de novo because whether a defendant made a 

constitutionally valid waiver is a mixed question of law and fact. 

At oral argument to this court, the State conceded the defendant was not 

advised of an essential element of the third count and that he was misadvised of the 

elements of his offense. Because the defendant was given incomplete and misleading 

information about the charge for which he was being asked to waive his right to a jury 

trial, we conclude that his waiver was constitutionally defective. The court of appeals’ 

decision is reversed, and the case is remanded to the superior court for a new trial. 

II. FACTS AND PROCEEDINGS 

On March 30, 2008, Tracy G. Hutton and Amanda Topkok were parked 

near Tikishla Park. A truck pulled up beside them, and a shot was fired into their 

vehicle, hitting Topkok in the shoulder. Hutton decided to follow the truck instead of 

taking her directly to the emergency room. He followed the truck until it stopped at a red 

light and fired three to four times at the truck with a handgun. Afterwards, Hutton took 

Topkok to Alaska Regional Hospital and drove away. 

The State charged Hutton with weapons misconduct in the first and second 

degrees.1 Because he had a prior felony conviction, the State also charged him with 

1 Under AS 11.61.190(a) a person commits first-degree weapons misconduct 

if “the person . . . discharges a firearm from a propelled vehicle while the vehicle is being 

(continued...) 

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weapons misconduct in the third degree: “knowingly possess[ing] a firearm capable of 

being concealed on one’s person after having been convicted of a felony . . . by a court 

of this state, a court of the United States, or a court of another state or territory.”2 

Recklessness is the applicable mental state for the circumstances of this offense.3 

The three charges were tried in a bifurcated proceeding, with the first two 

counts decided by a jury. A special interrogatory asked the jury if Hutton knowingly 

possessed a concealable firearm. The jury returned a verdict of guilty on the charge of 

weapons misconduct in the first degree but not guilty on the charge of weapons 

misconduct in the second degree, and found that Hutton had knowingly possessed a 

concealable firearm. After the jury returned the verdict, the parties and court discussed 

whether Hutton would proceed to a jury trial on Count III — felon in possession — or 

whether he would admit that count. 

The superior court stated that “[w]ith regard to Count III, the [S]tate has 

proved, beyond a reasonable doubt, according to the jury, the firearm portion of it. The 

second portion of it of course is the fact that Mr. Hutton must have been found to be a 

convicted felon. It’s my understanding that Mr. Hutton is willing to admit that; is that 

correct?” Hutton’s attorney answered, “Yes,” but Hutton’s answer was indiscernible. 

The court again explained the situation to Hutton, and this time he answered, “Yeah,” 

1

(...continued) 

operated and under circumstances manifesting substantial and unjustifiable risk of 

physical injury to a person or damage to property.” As relevant, a person commits 

second-degree weapons misconduct under AS 11.61.195(a)(3) if “the person 

knowingly . . . discharges a firearm at or in the direction of (A) a building with reckless 

disregard for a risk of physical injury to a person; or (B) a dwelling.” 

2 AS 11.61.200. 

3 See Afcan v. State, 711 P.2d 1198, 1199 (Alaska App. 1986). 

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when asked if he was willing to admit that he had previously committed a felony. The 

court asked Hutton if anyone had threatened or coerced him in regards to the admission, 

to which Hutton responded, “No.” The court stated, “And there’s been no promises 

made for you to do this, correct? I have to make a finding that you know what you’re 

doing and that you’re doing this voluntarily. Do you know what you’re doing? Have 

you had enough time to talk with your lawyer about it?” Hutton responded, “Yeah.” 

Then the court rephrased the issue, explaining that “basically what you’re doing is you’re 

admitting one element of the charge against you.” At this point Hutton interrupted the 

judge and said, “Oh, no, no, no, no. I don’t want to admit that.” 

After an off-the-record discussion with his attorney, Hutton told the judge 

to “[g]o ahead” and find that he was voluntarily giving up his right to a jury trial, but 

then moments later said, “You know, it’s not making much sense to me.” The court 

again tried to explain the situation to Hutton. This time Hutton seemed to understand 

and answered, “Yes,” to the court’s routine questions concerning voluntariness.4 

4	 Here is the court’s and Hutton’s colloquy: 

The Court: And understanding that that basically means that, 

with what the jury found, the – there will be a conviction of
 

record. Do you understand that?
 

Mr. Hutton: Uh-huh (affirmative).
 

The Court: And your answer – you’re nodding your head
 

yes? Okay.
 

Mr. Hutton: Yeah.
 

The Court: And you’re doing this knowingly, and you’re
 

giving up . . . .
 

Mr. Hutton: Yeah.
 

The Court: . . . your right to a jury trial . . . .
 

(continued...) 

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Ultimately, the court asked: “You’re waiving your right to a jury trial on the fact — on 

the issue of whether or not you’re a convicted felon. Do you understand that?” Hutton 

answered, “Yes.” The court accepted this waiver and admission. 

Hutton was sentenced to three years’ imprisonment for Count III and 

appealed, arguing that he had not knowingly waived his right to a jury trial.5 The court 

of appeals affirmed, holding that there was substantial evidence that Hutton had waived 

his right to a jury trial on Count III.6 

Hutton petitioned for hearing, and we granted review in order to decide the 

standard of review for waiver of the right to a jury trial. 

III. STANDARD OF REVIEW 

Determining the appropriate standard of review is a question of law that we 

review de novo. 7 When we review an issue de novo, we “adopt the rule that is most 

persuasive in light of precedent, reason, and policy.”8 

4

(...continued) 

Mr. Hutton: Yeah. 

5 Hutton v. State, 305 P.3d 364, 370 (Alaska App. 2013). 

6 Id. at 371. 

7 In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003) (“The 

question whether the superior court applied the proper standard of review in denying 

[the] claim is a question of law to which we apply our independent judgment.”); see also 

VECO Alaska, Inc. v. State, Dep’t of Labor, Div. of Workers’ Comp., Second Injury 

Fund, 189 P.3d 983, 987 (Alaska 2008) (deciding the standard of review as a matter of 

law). 

8 State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007) (quoting Guin v. Ha, 

591 P.2d 1281, 1284 n.6 (Alaska 1979)) (internal quotation marks omitted). 

-5- 7014
 
 

 

 

IV.	 DISCUSSION 

9 The State argues that an earlier case, Walunga v. State, already decided the

standard of review for a jury-trial waiver and that, even if it did not decide the issue, 

substantial evidence is the correct standard. Hutton argues that the mixed question of 

law and fact standard is correct because the ultimate issue is a question of law. 

A.	 Walunga v. State Did Not Decide The Standard Of Review For 

Jury-Trial Waivers. 

In 1973, Allen Walunga was charged with first-degree murder and assault 

with intent to kill.10 Walunga filed a written waiver of his right to a jury trial, and his 

counsel later submitted an affidavit stating that Walunga was competent to make a valid 

waiver.11 The superior court did not independently inquire of Walunga whether he was 

competent to make a valid waiver but engaged in its standard colloquy on 

voluntariness.12 Walunga was tried without a jury, convicted, and sentenced to life in 

prison.13 He moved for post-conviction relief, arguing that his jury-trial waiver was 

deficient.14 The superior court concluded that the waiver passed constitutional muster 

because the evidence showed that Walunga was competent.15 Walunga appealed, 

9 630 P.2d 527 (Alaska 1980) (per curiam). 

10 See id. at 527. 

11 Id. at 527-28. 

12 Id. at 528 & n.6. 

13 Id. at 527-28. 

14 Id. at 527. 

15 State v. Walunga, No. 72-00206 CR, at 4-5 (Alaska Super. 4th Dist, 

Fairbanks, Jan. 26, 1979). 

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arguing that he was incapable of effectively waiving his right to a jury trial and that the 

superior court erred by not independently inquiring of him whether he was competent.16 

We affirmed, holding that Walunga was competent to make a valid waiver 

and that the superior court did not need to independently inquire of Walunga regarding 

his competency.17 In the section of our opinion discussing competency, we noted that 

“[n]either party explicitly discusses the standard of review for trial court findings 

regarding waiver of this constitutional right,” and held that the proper standard was 

“substantial evidence.”18 We concluded that there was substantial evidence in the record 

demonstrating that Walunga was competent to waive his rights, and that “sufficient 

evidence of Walunga’s capacity . . . obviate[d] the need to inquire of Walunga himself.”19 

In Walunga we did not frame the issue as waiver of the right to a jury trial; 

we framed the issue as one of competency: Walunga “claim[ed] that he was incapable 

of effectively waiving his constitutional right to trial by jury because of mental illness, 

and that the superior court erred in failing to inquire into [his] capacity.”20 And we held 

that the “superior court’s holding [regarding competency] is supported by substantial 

evidence.”21 We explained that “Walunga contend[ed] that [the] inquiry was insufficient, 

16 Walunga, 630 P.2d at 527.
 

17 Id. at 528-29. 


18
 Id. at 528 n.4. 

19 Id. at 529. 

20 Id. at 527 (footnote omitted). 

21 Id. at 528. 

-7- 7014
 
 

 

 

because it did not delve into his mental state,”22 but “[g]iven the psychiatric 

testimony before the superior court . . . and Walunga’s attorney’s belief in his client’s 

competency . . . [,] there was sufficient evidence of Walunga’s capacity to obviate the 

need to inquire of Walunga himself.”23 Moreover, the cases we cited for the substantial 

24	 25 evidence standard — Hampton v. State and Naples v. United States — only discuss 

competency, not waiver generally.26 And two years after we decided Walunga, we 

explained, “As we noted in Walunga v. State, . . . ‘the proper standard of review is 

whether the superior court’s finding of [competence to make the] waiver is supported by 

substantial evidence.’ ”27 Thus, Walunga did not decide the standard of review for a 

waiver of jury trial. 

B.	 Whether A Defendant Made A Constitutionally Valid Waiver Is A 

Mixed Question Of Law And Fact. 

Hutton argues that a majority of jurisdictions use the mixed question of law 

and fact standard of review and that this standard best reflects the legal nature of the 

ultimate decision: whether a defendant made a constitutionally valid waiver of his right 

to a jury trial. The State argues that unlike waivers of Miranda rights28 and voluntariness 

22 Id. 

23 Id. at 528-29. 

24 569 P.2d 138 (Alaska 1977). 

25 307 F.2d 618 (D.C. Cir. 1962). 

26 See Naples, 307 F.2d at 626; Hampton, 569 P.2d at 143. 

27 Dolchok v. State, 639 P.2d 277, 294 (Alaska 1982) (second alteration in 

original) (quoting Walunga, 630 P.2d at 528 n.4). 

28 Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“Prior to any questioning, 

(continued...) 

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of confessions,29 because a jury-trial waiver is made in the presence of the trial court, the 

trial court is in the best position to determine the validity of the waiver, and the trial 

court’s decision should be reviewed under the substantial evidence standard. 

While courts do not all agree, a majority of jurisdictions treat the ultimate issue 

as one of law. Eight of the ten federal circuits that have made a clear pronouncement on 

the topic have applied the mixed question of law and fact standard.30 And a definitive 

majority of states that have clearly addressed the topic have also applied the mixed 

28(...continued) 

the person must be warned that he has a right to remain silent, that any statement he does 

make may be used as evidence against him, and that he has a right to the presence of an 

attorney, either retained or appointed. The defendant may waive effectuation of these 

rights, provided the waiver is made voluntarily, knowingly[,] and intelligently.”). 

29 Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000) (“A confession is not 

admissible into evidence unless it is voluntary.” (quoting Sovalik v. State, 612 P.2d 

1003, 1006 (Alaska 1980)) (internal quotation mark omitted)). 

30 United States v. Reynolds, 646 F.3d 63, 75 (1st Cir. 2011) (“For preserved 

claims, ‘[w]e review factual findings by the district court for clear error and the 

determination of whether a waiver of rights was voluntary de novo.’ ” (quoting 

United States v. Frechette, 456 F.3d 1, 11 (1st Cir. 2004))); United States v. Griffin, 

394 F. App’x 349, 351 (8th Cir. 2010) (per curiam) (reviewing the jury waiver new 

novo); United States v. Carmenate, 544 F.3d 105, 107 (2d Cir. 2008) (holding that 

“whether a defendant has effectively waived his federal constitutional rights in a 

proceeding is ultimately [a] legal question” (quoting Oyague v. Artuz, 393 F.3d 99, 104 

(2d Cir. 2004)) (alteration and internal quotation marks omitted)); United States v. Diaz, 

540 F.3d 1316, 1321 (11th Cir. 2008) (applying de novo review); United States v. Khan, 

461 F.3d 477, 491 (4th Cir. 2006) (reviewing whether jury-trial waiver was effective 

de novo); United States v. Watts, 45 F. App’x 323, 2 (5th Cir. 2002) (per curiam) 

(applying de novo review); Lott v. Coyle, 261 F.3d 594, 610 (6th Cir. 2001) (applying 

de novo review); United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997) 

(applying de novo review). 

-9- 7014
 
 

 

 

 

 

 

 

 

 

standard,31 but for differing reasons. A handful of these states have applied de novo 

review because the issue was constitutional,32 but the majority have reviewed the 

31 See, e.g., State v. Vann, 2010 WL 2602000, at *2 (Ariz. App. 

June 29, 2010) (“Consequently, we review de novo whether the superior court obtained 

a valid waiver of Vann’s right to a jury trial, but we defer to the court’s factual findings.” 

(citing State v. Winegar, 711 P.2d 579, 584 (Ariz. 1985))); Brown v. State, 721 A.2d 

1263, 1266 (Del. 1998) (applying de novo review); State v. Gomez-Lobato, 312 P.3d 

897, 900-01 (Haw. 2013) (applying de novo review); State v. Stallings, 658 N.W.2d 

106, 108 (Iowa 2003) (“The adequacy of a jury-trial waiver is a mixed question of fact 

and law, which an appellate court decides de novo.”) overruled on other grounds by 

State v. Feregrino, 756 N.W.2d 700, 708 (Iowa 2008); State v. Duncan, 243 P.3d 

338, 340-41 (Kan. 2010) (“When the facts are undisputed, whether a defendant 

knowingly and voluntarily waived his right to a jury trial is a question of law subject to 

unlimited review.”); State v. Poole, 46 A.3d 1129, 1131 (Me. 2012) (“When reviewing 

whether a defendant has effectively waived the jury trial right, we review the court’s 

factual findings for clear error and its legal conclusions de novo.”); State v. Kuhlmann, 

806 N.W.2d 844, 848-49 (Minn. 2011) (applying de novo review); State v. Thompson, 

83 A.3d 388, 393 (N.H. 2013) (“Whether the facts support a valid waiver is a question 

of law which we review de novo.” (quoting State v. Foote, 821 A.2d 1072, 1074 

(N.H. 2003)) (internal quotation marks omitted)); Gallimort v. State, 997 P.2d 796, 798 

(Nev. 2000) (applying de novo review); State v. Redden, 487 S.E.2d 318, 323-24 

(W.Va. 1997) (applying de novo review); State v. Anderson, 638 N.W.2d 301, 306 

(Wis. 2002) (applying de novo review). 

32 See State v. Gomez-Lobato, 312 P.3d 897, 900-01 (Haw. 2013) (“The 

validity of a criminal defendant’s waiver of his or her right to a jury trial presents 

a question of state and federal constitutional law. . . . We answer questions of 

constitutional law by exercising our own independent constitutional judgment based on 

the facts of the case.” (alteration in original)); State v. Kuhlmann, 806 N.W.2d 844, 

848-49 (Minn. 2011) (“Whether a criminal defendant has been denied the right to a jury 

trial is a constitutional question that we review de novo.”); State v. Vasquez, 34 P.3d 

1255, 1260 (Wash. App. 2001) (“Because it implicates the waiver of an important 

constitutional right, our review is de novo.”); State v. Anderson, 638 N.W.2d 301, 306 

(Wis. 2002) (“Whether an individual is denied a constitutional right is a question of 

constitutional fact that this court reviews independently as a question of law.” (quoting 

State v. Klessig, 564 N.W.2d 716, 721 (Wis. 1997)) (internal quotation marks omitted)). 

-10- 7014
 
 

 

 

 

 

 

 

ultimate conclusion de novo because the issue is a mixed question of law and fact. There 

are only a few states that after fully considering the issue have applied a deferential 

standard of review.33 

The mixed question of law and fact standard of review correctly reflects the 

reality that whether a defendant made a constitutionally valid waiver of his right to a jury 

trial is a legal question. As both parties agree, the superior court’s underlying factual 

findings should be reviewed for clear error. But the ultimate conclusion drawn from 

those facts — whether a defendant’s waiver is constitutionally sufficient — is a question 

of law the appellate court reviews de novo. 

The State argues that because the jury-trial waiver happens in the presence 

of the trial court, we should review it deferentially. The State contends that we review 

Miranda waivers and confessions de novo because these happen outside of the 

courtroom. But in Miranda and confession cases our application of de novo review is 

not premised on the fact that the crucial exchanges happened outside the presence of the 

court.34 In State v. Ridgely, we held that “[w]hen an appellate court reviews a trial 

33 See State v. Hall, 582 A.2d 507, 509 (Md. 1990) (“Considering the totality 

of the circumstances in the present case, we think that the trial judge could fairly find that 

Hall intentionally relinquished his known right to a jury trial by his voluntary act in 

waiving that right.” (citation omitted)); Commonwealth v. Schofield, 463 N.E.2d 1181, 

1184 (Mass. 1984) (“In the instant case there is adequate support for the judge’s 

decision.”); Defrancisco v. State, 656 S.E.2d 238, 241 (Ga. App. 2008) (“A trial court’s 

ruling as to whether a defendant knowingly, intelligently, and voluntarily waived his 

right to a jury trial is also reviewed under a clearly erroneous standard.”). 

34 State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987) (explaining that 

voluntariness is a mixed question without making any reference to the inquiry happening 

out of the presence of the court); Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981) 

(explaining that waiver is a mixed question without making any reference to the inquiry 

happening out of the presence of the court); Troyer v. State, 614 P.2d 313, 318 

(continued...) 

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judge’s determination of voluntariness, its standard of review reflects the mixed factual 

and legal nature of the voluntariness inquiry.” 35 It is the voluntariness inquiry itself — 

not when or where that inquiry happened — that mandates the mixed standard. The 

issue is whether a certain set of facts legally amounts to a valid constitutional waiver, and 

the trial court is in no better position to answer that legal question than is an appellate 

court. A question of law does not require credibility determinations that merit deferential 

review of the trial court’s decision. We conclude that when an appellate court reviews 

whether a defendant made a constitutionally valid waiver of his right to a jury trial, the 

court should apply the standard for mixed questions of law and fact. 

C. Hutton’s Waiver Was Invalid. 

In its briefing, the State argues that even were we to review the superior 

court’s waiver conclusion de novo, we should affirm because (1) Hutton had just 

participated in a jury trial on Counts I and II and knew what a jury trial would entail; (2) 

the judge had explained the process to him; (3) he had enough time to discuss the matter 

with his attorney; and (4) he twice said that he was voluntarily waiving his right. 

But there is a fundamental flaw in the State’s argument. In order to convict 

Hutton of weapons misconduct in the third degree, the State was required to prove 

beyond a reasonable doubt all of the elements of the applicable felon in possession of a 

34(...continued) 

(Alaska 1980) (explaining the standard at length, including giving deference to the 

superior court for the historical facts recited in its presence, but not making any reference 

to the importance of the confession happening out of the view of the court). 

35 732 P.2d at 554; see id. (“The voluntariness inquiry involves three steps. 

First, the trial judge must find the external, phenomenological facts surrounding the 

confession. Second, from these external facts, the judge must infer an internal, 

psychological fact: the mental state of the accused. Finally, the judge must assess the 

legal significance of this inferred mental state.”). 

-12- 7014
 
 

 

 

 

 

 

weapon charge. Alaska Statute 11.61.200(a)(1) sets out four of these elements: 

“[1] knowingly [2] possess[ing] a firearm [3] capable of being concealed on one’s person 

[4] after having been convicted of a felony.” But there is an additional, necessary 

element that the State was required to prove: Hutton’s culpable mental state with respect 

to the circumstances of his offense. As the court of appeals explained in Afcan v. State, 

“AS 11.81.610(b)(2) makes recklessness the applicable, culpable mental state,” and “[a]s 

an aspect of the mens rea requirement in this case, it was necessary for the [S]tate to 

establish that [the defendant] was aware of or recklessly disregarded the fact that he had 

been convicted of a felony.”36 In the trial judge’s colloquy with Hutton, Hutton was 

advised that the State only needed to prove the four elements set out in 

AS 11.61.200(a)(1) to prove its case. Hutton was not advised that the State would also 

have to prove beyond a reasonable doubt that at the time Hutton possessed the handgun 

he was aware of or recklessly disregarded the fact that he was a felon. 

At oral argument to this court, the State candidly conceded that “the 

omission of an element of the offense and the proof that would be required is a 

significant problem.” When asked if the case would need to “go back on that element,” 

the State’s attorney acknowledged that “in all honesty, [he] would have to say yes. . . . 

It’s an essential element of the offense [and] he wasn’t advised of it.”37 The State’s 

36 711 P.2d 1198, 1199 (Alaska App. 1986) (emphasis added). 

37 Here is the full exchange between the court and the State’s attorney at oral 

argument: 

Justice Stowers: This is essentially the very beginning of the 

process and this is where the trial judge at this point is trying 

to get the defendant to admit the prior felonies. And so the 

court says, basically there are two elements to that crime: 

one is you’re carrying a concealed firearm knowingly, which 

(continued...) 

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37(...continued) 

the jury has already found, and the second one is that you 

have been convicted of a felony either as an adult or as a 

juvenile; are you willing to admit that? And then a little bit 

later . . . the trial judge talks a little about we can bring the 

jury back in and let the jury decide whether you’re a prior 

felon. 

But as has been pointed out here . . . to actually . . . have been 

convicted of the third-degree weapons misconduct the jury 

must find the defendant knowingly possesses a firearm 

capable of being concealed on the person after having been 

convicted of a felony, and that the defendant was reckless 

with respect to the fact that he had been previously been 

convicted of the felony. And the trial judge at no point 

discussed the recklessness element, and there is an argument 

that’s being made that this recklessness element is 

quintessentially a factual question that Mr. Hutton was 

entitled to have a jury decide — not just did he possess 

knowingly a firearm that could be concealed, and not just did 

he have a prior felony conviction, but also that he recklessly 

disregarded the knowledge of this prior felony conviction. 

My question is, in all of this colloquy, looking at this from a 

totality of the circumstances standard, how can I conclude 

reasonably that Mr. Hutton waived his right to a jury trial on 

this recklessly disregard element when it was never discussed 

with him; how could that be an intelligent waiver, how could 

it be a knowing waiver, and ultimately how could it be a 

constitutionally effective waiver? Or, to put it another way, 

and I’m not trying to prolong this, where is the substantial 

evidence, even if we were to accept your view, that his was 

knowing, and intelligent, and voluntary. 

Mr. Rosenstein: That’s a problem. I mean, the omission of an
 

element of the offense and the proof that would be required
 

is a significant problem.
 

(continued...) 

-14- 7014
 
 

 

 

 

 

 

 

forthright concession is commendable and well-taken. Hutton could not have made a 

knowing, intelligent, and voluntary waiver of his right to a jury trial when he was not 

advised of a necessary element of the charged offense and the State’s burden to prove 

that element beyond a reasonable doubt. Hutton’s conviction on Count III must be 

reversed and the case remanded for a new trial on that count. 

V. CONCLUSION 

We hold that when an appellate court reviews whether a defendant’s waiver 

of the right to a jury trial was constitutionally effective, the applicable standard of review 

is the mixed question of law and fact standard. Because Hutton was not advised of an 

essential element of the charged offense in the trial court’s colloquy regarding Hutton’s 

purported waiver of his right to jury trial, we conclude Hutton’s waiver was invalid and 

constitutionally ineffective. We therefore REVERSE the court of appeals’ decision as 

to Count III and REMAND the case to the superior court for further proceedings 

consistent with this opinion. 

37(...continued) 

Justice Stowers: Does it have to go back on that element — 

that issue alone? Isn’t that enough under either standard — 

the substantial evidence or the mixed question? 

Mr. Rosenstein: I . . . you know, in all honesty, I would have 

to say yes. I can’t make a silk purse out of that. It’s an 

essential element of the offense . . . he wasn’t advised of it. 

-15- 7014