State v. Benson

1

NOT DESIGNATED FOR PUBLICATION

No. 114,591

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DERRICK J. BENSON,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES E. PHELAN, judge. Opinion filed September 30, 2016.
Affirmed.

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., LEBEN, J., and HEBERT, S.J.

Per Curiam: Derrick J. Benson appeals from his conviction of disorderly conduct,
a class C misdemeanor. Benson argues that the district court erred by conducting a bench
trial without obtaining an explicit waiver of his right to a jury trial.

We find no violation of any constitutional or statutory right and affirm Benson’s
conviction.


2

Factual and Procedural Background

Benson had been angry and yelling at his girlfriend, Eleanor Griggs, for some time
when she instructed her daughter to call the police. Police came to their home and could
hear an argumentative man's voice from outside of the apartment. Police arrested Benson
and he was charged with disorderly conduct, a class C misdemeanor. Because the charge
was the result of a domestic dispute, it was tagged as a domestic violence offense.

Benson did not request a jury trial so the case was tried to a magistrate judge. At
the start of the bench trial, Benson confirmed, through his attorney, that it was his wish to
proceed without a jury. At trial, the State presented two witnesses and Benson testified in
his own defense. After Benson concluded his defense, the district court found him guilty
of disorderly conduct. The journal entry of judgment does not designate the conviction
as a domestic violence case, nor does it set forth any special findings required in support
of such designation. Benson was sentenced to time served of 25 days in jail. He now
appeals.

Was Benson Denied His Right to a Trial by Jury?

Benson argues that he was denied both his constitutional and his statutory rights to
a jury trial. Benson did not raise this issue below. Generally, any issue not raised in the
district court cannot be raised on appeal. State v. Cheffen, 297 Kan. 689, 696, 303 P.3d
1261 (2013). However, several exceptions to this rule exist. A new legal theory may be
raised for the first time on appeal if: (1) the newly asserted theory involves only a
question of law arising on proved or admitted facts and is finally determinative of the
case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent
denial of fundamental rights; or (3) the judgment of the trial court may be upheld on
appeal despite its reliance on the wrong ground or having assigned a wrong reason for its
decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Before this court
3

will consider an issue that was not raised below, the appellant must invoke one of the
three exceptions and explain why the issue should be considered for the first time on
appeal. Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41); State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

Although Benson refers to the Rule 6.02 standard of review, his argument as to
why we should consider this issue for the first time on appeal is somewhat vague and
imprecise. He seems to invoke the second of the three exceptions, citing to several cases
in which this court has discussed the fact that "'[t]here is no more fundamental right in the
United States than the right to a jury trial.'" State v. Duncan, 44 Kan. App. 2d 1029, 1037,
242 P.3d 1271 (2010).

Benson makes arguments that are founded in both the United States Constitution
and Kansas statute. Whether Benson had a right to a jury trial under either of these
sources of law that he was subsequently deprived of is a question of law over which this
court has unlimited review. See Duncan, 44 Kan. App. 2d at 1037; City of Wichita v.
Kinney, No. 104,717, 2011 WL 3891892, at *1 (Kan. App. 2011) (unpublished opinion).

The United States Constitution

The United States Supreme Court has long recognized that there is a class of
criminal prosecutions for which the possible prison sentence is so insignificant that a
defendant's constitutional right to a jury trial is not triggered. See Lewis v. United States,
518 U.S. 322, 326, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996); Duncan v. Louisiana, 391
U.S. 145, 159, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) ("[T]here is a category of petty
crimes or offenses which is not subject to the Sixth Amendment jury trial provision.").
The Court has labeled this category of crimes "petty offenses." Duncan, 391 U.S. at 159.

4

In Lewis, the Court reasoned that the best indication of whether an offense is petty
or serious is the length of the sentence authorized by the legislature. Where a statute
authorizes a maximum sentence of no more than 6 months, courts should presume that
the crime is a petty offense. 518 U.S. at 326. When determining whether an offense is
petty, a court should not consider the individual defendant but should instead confine its
analysis to the statute(s) the defendant is charged with violating. Confining the analysis in
this way, a court is able to discount any collateral consequences associated with an
individual defendant—for instance, the fact that the defendant is charged with two counts
of a crime and could, therefore, face more than 6 months in prison if convicted of both
and sentenced to consecutive prison terms—and keep the focus on the legislature's view
of a given offense as petty or serious. 518 U.S. at 328.

As this court made note in State v. Woolverton, 52 Kan. App. 2d 700, 702, 371
P.3d 941 (2016), the presumption that a crime with a maximum possible prison sentence
of 6 months is a petty offense is rebuttable so that "[a] defendant will still be entitled to a
jury trial if the offense carries statutory penalties in addition to the jail term that 'are so
severe that they clearly reflect a legislative determination that the offense is a "serious"
one.'" Nevertheless, the United States Supreme Court has permitted penalties such as a
90-day suspension of a drivers' license, extended periods of probation in lieu of 6 months'
imprisonment, and fines up to $5,000 without requiring a jury trial. See United States v.
Nachtigal, 507 U.S. 1, 4-5, 113 S. Ct. 1072, 122 L. Ed. 2d 374 (1993); Blanton v. North
Las Vegas, 489 U.S. 538, 543-44, 109 S. Ct 1289, 103 L. Ed. 2d 550 (1989).

Benson recognizes that disorderly conduct, which carries with it a maximum jail
sentence of 1 month, is a presumptively petty offense to which the constitutional right to
a jury trial does not attach. Nevertheless, Benson argues that "the collateral
consequences, societal regard, and specialized resources devoted to domestic violence"
serve to rebut the presumption that disorderly conduct is a petty offense when it carries
with it a domestic violence tag. A panel of this court recently addressed and rejected
5

similar arguments. Woolverton, 52 Kan. App. 2d at 704-06. In Woolverton, this court
recognized that while the State takes domestic violence seriously—a fact reflected by the
collateral consequences of a domestic violence conviction—that seriousness does "not
affect the analysis when determining whether a right to a jury trial exists under the Sixth
Amendment." 52 Kan. App. 2d at 705-06. The collateral consequences of a domestic
violence conviction are not so severe as to rebut the presumption that an offense with a
maximum sentence of less than 6 months is petty so that the defendant's right to a jury
trial is triggered. In any event, as noted above, Benson's conviction was not designated as
a domestic violence offense in the journal entry of judgment and sentencing, and he fails
to suggest any collateral consequences attaching to the conviction of simple disorderly
conduct.

Since Benson faced a maximum sentence of 30 days in jail, he did not have a
constitutional right to a jury trial in this case.

K.S.A. 22-3404

Benson also argues that he was denied his statutory right to a jury trial. At the
same time, he acknowledges that this court has repeatedly held that the right to jury trial
of a defendant who stands accused of a misdemeanor offense is one that must be
affirmatively exercised or it is waived. Benson contends that this sort of implicit waiver
is incompatible with procedural due process. He additionally contends that it is
irreconcilable to require explicit waiver of the right to a jury trial in felony cases but not
in misdemeanor cases.

K.S.A. 22-3404(1) provides: "The trial of misdemeanor cases shall be to the court
unless a jury trial is requested in writing by the defendant not later than seven days after
first notice of trial assignment is given to the defendant or such defendant's counsel." As
recently as April of this year, this court affirmed that the language of the statute
6

unambiguously requires action on the part of a misdemeanor defendant if he or she
wishes for his or her trial to take place in front of a jury. Woolverton, 52 Kan. App. 2d at
706-07. The only exception to this is for defendants charged with misdemeanors that may
be punished by a jail term of more than 6 months—in that case, the constitutional right to
a jury trial is triggered and explicit waiver of the right is necessary before the court may
proceed to a bench trial. See State v. Sykes, 35 Kan. App. 2d 517, 523-24, 132 P.3d 485
(2006). K.S.A. 22-3404(1) itself, however, does not require explicit waiver.

In State v. Patton, 287 Kan. 200, 220-21, 195 P.3d 753 (2008), our Supreme
Court recognized that Kansas courts have previously resolved due process challenges to
criminal procedure statutes using the framework which the United States Supreme Court
outlined in Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120 L. Ed. 2d 353, reh.
denied 505 U.S. 1244 (1992). Recognizing that substantial deference should be afforded
to state legislatures to craft laws related to criminal procedure, the Medina Court
concluded that the appropriate test to determine if a law violates due process is whether it
"'offends some principle of justice so rooted in the traditions and conscience of our
people as to be ranked fundamental.'" 505 U.S. at 445.

Applying that test to this case, it does not appear that K.S.A. 22-3404(1) violates
Benson's right to procedural due process. Both the United States Supreme Court and our
state courts have recognized that the intrusion on a defendant's liberty is so slight in cases
in which the maximum sentence is less than 6 months that the defendant's constitutional
right to a jury trial is not triggered. Duncan, 391 U.S. at 160; Woolverton, 52 Kan. App.
2d at 701-02. Differentiating between petty and serious offenses for purposes of the Sixth
Amendment jury trial provision is not a new development but rather a carryover from the
English tradition, practiced in the United States since the states were still colonies.
Duncan, 391 U.S. at 160. Consideration of history and tradition weigh in favor of finding
that K.S.A. 22-3404(1) does not violate defendants' rights to procedural due process.
7

Consideration of fairness similarly supports upholding the law. At a fundamental
level, procedural due process requires that someone facing deprivation of life, liberty, or
property at the hands of the government be given notice and an opportunity to be heard.
See State v. Robinson, 281 Kan. 538, 547-48, 132 P.3d 934 (2006). Our laws require
additional or more stringent due process protections in situations in which a person stands
to lose more as a result of government action. See Duncan, 391 U.S. at 160-61
(permitting fewer protections for defendants charged with petty crimes because the
maximum prison sentence has a relatively insignificant impact on the defendants' liberty).
A bench trial sufficiently protects a defendant's most basic procedural due process rights.
Defendants facing misdemeanor charges are required to be formally charged and notified
of the pending charges as are defendants facing more serious charges. See K.S.A. 22-
2301; K.S.A. 2015 Supp. 22-2408; K.S.A. 22-3201. Additionally, bench trials provide
defendants with an opportunity for a full hearing. At a bench trial, the State has the
burden of proving the guilt of the defendant beyond a reasonable doubt, just as it does at
any other trial. The defendant may opt not to present a defense or testify or may choose to
defend against the State's charges. Thus, defendants' rights to notice and an opportunity to
be heard are fully protected by K.S.A. 22-3404(1); the statute is not fundamentally unfair.

The legislature should receive substantial deference to craft rules of criminal
procedure that best meet the needs of the state's courts and its citizens. In K.S.A. 22-
3404(1), the legislature determined misdemeanor defendants are entitled to less stringent
protection of the right to a jury trial than are felony defendants. It is not uncommon for
legislatures to differentiate between the two classes of defendants in this way, and the
decision to do so here should not be second guessed absent a showing that defendants'
procedural due process rights are being violated. See Lewis, 518 U.S. at 326; State v.
Golden, 8 Neb. App. 601, 613, 599 N.W.2d 224 (1999); State v. Patrick, 816 S.W.2d
955, 957 (Mo. App. 1991) (discussing requirement that misdemeanor defendants request
a jury trial).

8

K.S.A. 22-3404(1) does not violate the Sixth Amendment right to a jury trial and
it fully comports with notions of procedural due process. Benson was not improperly
denied either his constitutional or statutory right to a jury trial.

Affirmed.