State v. Rizo

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,824

STATE OF KANSAS,
Appellee,

v.

JAVIER RIZO,
Appellant.

SYLLABUS BY THE COURT

1.
The general rule is that issues not raised before the trial court cannot be raised for
the first time on appeal. But because preservation is a prudential rule, rather than a
jurisdictional bar, the appellate court has discretion to apply an exception to the general
rule. One recognized exception that will allow an appellate court to consider a
constitutional issue raised for the first time on appeal is where consideration of the issue
is necessary to serve the ends of justice or to prevent the denial of fundamental rights.

2.
A district court cannot accept a jury trial waiver unless the defendant, after being
advised by the court of his or her right to trial by jury, personally waives that right in
writing or in open court for the record. The test for determining the validity of a jury trial
waiver is whether the facts and circumstances establish that the waiver was voluntarily
made by a defendant who knew and understood what he or she was doing.

3.
The defendant's waiver of a jury trial is separate and distinct from the defendant's
agreement to proceed to trial before the district court on stipulated facts, so that the
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defendant does not have to be apprised of the consequences of a bench trial on stipulated
facts in order to knowingly waive his or her right to a jury trial.

4.
A district court does not have the discretion to depart from the mandatory life
sentence for felony murder.

5.
An appellate court does not have jurisdiction to review the district court's denial of
a motion to depart from a presumptive sentence under the revised Kansas Sentencing
Guidelines Act.

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed August 12, 2016.
Affirmed in part and dismissed in part.

Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief
for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Javier Rizo appeals his convictions for first-degree felony murder,
three counts of aggravated battery, fleeing or attempting to elude a law enforcement
officer, and battery. He argues the district court erred by: (1) failing to obtain a knowing
and voluntary trial waiver from him before allowing his case to proceed as a bench trial
on stipulations, and (2) denying his motion for a departure sentence. We reject both

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arguments, affirm the jury trial waiver and the life sentence for felony murder, and
dismiss the sentence departure claim.

FACTUAL AND PROCEDURAL OVERVIEW

In the early morning hours of October 27, 2013, Rizo and his girlfriend, Danielle
Martinez, had an argument at a club in the Old Town district of Wichita, Kansas. At
approximately 1:15 a.m., Rizo took Martinez' minivan keys, prompting Martinez to tell
Rizo he could not drive her vehicle because he was drunk. Rizo responded by grabbing
Martinez around the neck and pushing her, causing security personnel to remove Rizo
from the club.

At approximately 2 a.m., two uniformed police officers in the Old Town district
learned of a parking lot disturbance. A witness pointed the officers to Martinez' minivan.
The officers walked toward the minivan, but it exited the parking lot. Rizo was driving
the minivan, and he had three passengers with him, including his brother, Tony Losey.
The officers pursued the minivan in their marked patrol car. Rizo led the officers on a
high speed chase within the city limits, during which he committed multiple traffic
violations, including exceeding the posted speed limits, at one point accelerating to an
estimated 80 to 90 miles per hour.

Rizo eventually crashed into a Suzuki automobile at an intersection. Rizo and
Losey fled the collision scene. The two remaining minivan passengers and the driver and
passenger of the Suzuki, Maria and Sergio Martinez, sustained injuries requiring
hospitalization. Maria died at the hospital at 2:56 a.m.

The Wichita Police Department attempted to locate Rizo for several weeks
following these events. According to Rizo's family, Rizo left Kansas shortly after the

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collision. On January 5, 2014, law enforcement found Rizo at a residence in Wichita,
Kansas, and took him into custody.

Rizo was later interviewed by Detective Paul Kimble. After being read his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied
385 U.S. 890 (1966), Rizo explained that during the events in question, he was drunk and
most of the night was a blur. When Rizo saw the police lights, he did not want to get his
brother in trouble because the brother was on probation, so Rizo kept driving. He said he
did not see the Suzuki coming and did not remember the crash. After the crash, he took
off running and did not check on anyone's wellbeing because he was scared. He further
explained that there was a warrant out for his arrest and that he had just gotten out of jail.

The State charged Rizo with second-degree murder or, in the alternative, first-
degree felony murder for the death of Maria Martinez; three counts of aggravated battery
for the others injured in the collision; fleeing or attempting to elude a law enforcement
officer; and battery of his girlfriend. The district court granted Rizo's motion to suppress
his pre-Miranda statements and denied his motion to suppress his post-Miranda
statements after a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964), hearing. At the preliminary hearing, the State presented DNA evidence placing
Rizo in the driver's seat of the minivan.

When the parties could not reach a plea agreement, Rizo's counsel informed the
State that Rizo wanted to waive his right to a jury trial. In exchange for Rizo waiving this
right and proceeding on stipulated facts, the State agreed to dismiss another pending
criminal case against Rizo for felony fleeing and eluding, Sedgwick County Case No.
13 CR 2514, which the State alleged Rizo committed a few weeks before the events
leading to this case. If convicted in 13 CR 2514, Rizo's criminal history score would

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increase from a "D" to a "B," which would increase the potential sentences for the
guidelines offenses in this case.

Before the district court, the parties discussed their negotiations. Rizo's counsel
asserted that he would never let his client waive his right to a jury trial unless the client
was receiving a deal in exchange for the stipulated facts and that, in this case, Rizo did
not want to put the victim's family through a trial. After hearing from both parties, the
district court had a colloquy with Rizo about his decision to waive his right to a jury trial.
At one point, the district court asked the State and defense counsel if there was anything
else the court needed to cover. Defense counsel informed the court, "No, sir. He
understands his rights, we have talked about it, this is what he wants to do, and it's
beneficial to him." The State asked the court to clarify that the only right Rizo was
waiving at that time was his right to a jury trial before 12 citizens of the community. The
court then ensured that Rizo understood he was waiving his right to a jury trial and
wished to proceed "either with a bench trial or a trial to me [the judge] on stipulated
facts."

Later that same day, the parties returned to the district court and presented the
court with a document entitled "Agreement to Proceed to Trial on Stipulated Facts" (the
stipulated facts agreement) and a document entitled "Stipulation by the Parties" (the
additional stipulations). The stipulated facts agreement provided that Rizo had previously
made a knowing and voluntary waiver of his jury trial right; it informed the court of
Rizo's choices not to testify in his own defense and to waive confrontation of the State's
witnesses and evidence; it withdrew Rizo's objection to the admission of his post-
Miranda statements; and it explained that Rizo agreed to allow the court to accept as true
the facts set forth in the exhibits and stipulations agreed upon by the parties. The
agreement also clarified that if Rizo was convicted of any charges, both parties were free
to argue for any lawful sentence.
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 Pursuant to the stipulated facts agreement, the district court formally dismissed the
charges in 13 CR 2514. At the State's request, the district court held an on-the-record
colloquy with Rizo regarding his decision to proceed as set forth in the stipulated facts
agreement. The district court confirmed with Rizo that he had signed the stipulated facts
agreement and additional stipulations after having ample time to consult with his counsel
and obtain answers to any questions he had. Rizo said it was his decision alone to sign
both documents.

The district court found Rizo guilty as charged on each count. The district court
denied Rizo's motion for new trial or judgment of acquittal, where Rizo argued
insufficient evidence supported the district court's verdict.

At sentencing, the district court denied Rizo's motion for departure. The court
dismissed the second-degree murder conviction and sentenced Rizo to life in prison for
first-degree felony murder, 55 months for the primary count of aggravated battery, and 34
months for one of the additional counts of aggravated battery, to run consecutive to the
life sentence. The court also imposed 31 months for the remaining count of aggravated
battery, 7 months for fleeing or attempting to elude a law enforcement officer, and 6
months for battery to run concurrently. Therefore, Rizo's controlling sentence was life
imprisonment with 89 months' imprisonment to run consecutive to the life sentence.

Rizo filed a timely appeal, over which this court has jurisdiction under K.S.A.
2015 Supp. 22-3601(b) (off-grid crime; maximum sentence of life imprisonment
imposed).

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 TRIAL RIGHTS WAIVER

Rizo argues the district court did not obtain a knowing and voluntary trial waiver
from him. He asserts that when he waived his right to a jury trial, the district court failed
to fully inform him of all the rights he was waiving because, at that time, the parties had
not determined whether the trial would proceed as a bench trial with evidence presented
or a bench trial on stipulated facts. Before considering the merits of Rizo's claim, there is
a threshold question concerning preservation.

Issue Preservation

The State argues that this court should not consider Rizo's claim for the first time
on appeal. In general, issues not raised before the trial court cannot be raised for the first
time on appeal. See, e.g., State v. Shadden, 290 Kan. 803, 813, 235 P.3d 436 (2010).
However, there are three recognized exceptions allowing an appellate court to consider a
constitutional issue raised for the first time on appeal, including when consideration of
the issue is necessary to serve the ends of justice or to prevent the denial of fundamental
rights. State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d 200 (2012).

Because preservation is a prudential rule, rather than a jurisdictional bar, we have
discretion to apply an exception to the general rule. State v. Frye, 294 Kan. 364, 369, 277
P.3d 1091 (2012). In Frye, we rejected a bright-line rule that a jury trial waiver issue
cannot be raised for the first time on appeal, reasoning "whether the court has advised a
defendant of his or her right to a jury trial . . . should be one of the last to be denied the
opportunity for exceptional treatment." 294 Kan. at 370. Frye held the Court of Appeals
did not err in applying an exception to the preservation rule where the district court made
no effort to ascertain the validity of a handwritten jury trial waiver and did not advise the
defendant of his right to a jury trial. 294 Kan. at 371.

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 In State v. Beaman, 295 Kan. 853, 856-62, 286 P.3d 876 (2012), we likewise
addressed a jury trial waiver issue for the first time on appeal where defendant claimed he
was confused during the district court's discussion about waiver, which the defendant
argued implicated the district court's affirmative duty to ensure he fully understood his
right to a jury trial. Rizo's claim is analogous to the issue we reviewed in Beaman. He
claims the district court's jury trial waiver colloquy was inadequate to inform him of
other trial rights he would waive if he proceeded to a bench trial on stipulated facts as
opposed to a bench trial where evidence was presented. While we ultimately disagree
with his arguments, we will consider the issue even though it is raised for the first time on
appeal.

Standard of Review

"Whether a defendant waived the right to a jury trial is a factual question, subject
to analysis under a substantial competent evidence standard of review. But when the facts
of the district court's determination to accept a jury trial waiver are not disputed, the
question whether the defendant voluntarily and knowingly waived the jury trial right is a
legal inquiry subject to unlimited appellate review." Beaman, 295 Kan. at 858.

Analysis

The Sixth Amendment to the United States Constitution and §§ 5 and 10 of the
Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury trial.
See also K.S.A. 22-3403(1) ("The defendant and prosecuting attorney, with the consent
of the court, may submit the trial of any felony to the court. All other trials of felony
cases shall be by jury."); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975) ("The
right of a criminal defendant to be tried by a jury of his peers, rather than by the court
alone, is 'fundamental to the American scheme of justice.'") (quoting Duncan v.
Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]). Although "[a]

8
criminal defendant may waive the fundamental right to a jury trial if the court and State
agree to the waiver," such waivers are "strictly construed to ensure the defendant has
every opportunity to receive a fair and impartial trial by jury." Beaman, 295 Kan. at 858
(citing Irving, 216 Kan. at 589).

Therefore, the district court 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.'" Irving, 216
Kan. at 589-90 (quoting American Bar Association Standards for Criminal Justice, Trial
by Jury, Section 1.2[b], p. 7). "The test for determining the waiver's validity is whether it
was voluntarily made by a defendant who knew and understood what he or she was
doing. Whether that test is satisfied depends upon the particular facts and circumstances
in each case." Beaman, 295 Kan. at 858.

Here, Rizo does not dispute that he waived his right to a jury trial in open court.
Further, he acknowledges that the district court's colloquy with him "arguably adequately
constituted a waiver of [] Rizo's right to trial by jury by informing him he was waiving
the right to have 12 people make a unanimous decision[.]" We agree with that
concession. The district court held a lengthy colloquy with the Rizo, where the court
advised Rizo that he was waiving his right to a jury trial. The following excerpt illustrates
how the district court advised Rizo of the right he was waiving:

"THE COURT: All right. And when you have—when you have a jury, the jury
is 12 people. And what happens with your situation is you go through a possible panel by
questioning them, trying to find their impartiality, trying to find their neutrality on a case
like this, and certain jurors are dismissed and you end up with 12.
"And you have a right to present your case to those 12 people. And those 12
people have to unanimously decide that you're guilty. If they don't have unanimity, if it is

9
 not unanimous, then they don't come back with a guilty verdict on you. That's in
particular what you're giving up. Do you understand that. [sic]
"THE DEFENDANT: Yes, sir.
"THE COURT: And is it still your desire to waive that trial to a jury and then
proceed either with a bench trial or a trial to me on stipulated facts?
"THE DEFENDANT: Yes, sir."

Furthermore, in the stipulated facts agreement, Rizo acknowledged his waiver:

"1. Defendant, having previously knowingly, intelligently, freely, and voluntarily
waived his right to a jury trial on all charges in the Information filed in this case, now
agrees to proceed to bench trial by stipulated facts."

Rizo does not cite any authority requiring the district court to explain other trial
rights to a defendant in order to obtain a knowing and voluntary jury trial waiver. Further,
our caselaw has upheld jury trial waivers even when the district court fails to explain the
particulars surrounding the right to a jury trial. See State v. Lewis, 301 Kan. 349, 377-78,
344 P.3d 928 (2015) (holding jury trial waiver valid although district court did not inform
defendant of his attorney's ability to make challenges under Batson v. Kentucky, 476 U.S.
79, 88-89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]); Beaman, 295 Kan. at 859, 862
(holding jury trial waiver valid although the district court did not explain that a 12-person
jury would need to unanimously agree on guilt); State v. Clemons, 273 Kan. 328, 340-41,
45 P.3d 384 (2002) (holding jury trial waiver valid although district court did not inform
defendant of right to unanimous verdict); see also State v. Savage, No. 112,882, 2015 WL
8590269, at *5-7 (Kan. App. 2015) (unpublished opinion) (holding jury trial waiver valid
despite defendant's argument that district court failed to clearly distinguish between jury
trial, bench trial, and the use of stipulated facts). Certainly, then, we are satisfied that
under the facts and circumstances in this case, Rizo's jury trial waiver was knowing and
voluntary.

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 Rizo, however, argues that the jury trial waiver colloquy was inadequate to inform
him of the other trial rights he would waive if he proceeded to a bench trial on stipulated
facts as opposed to a bench trial where evidence was presented. Rizo argues the district
court failed to advise him that by proceeding on stipulated facts, he waived the right to
cross-examine witnesses, compel the appearance of favorable witnesses, appeal adverse
evidentiary rulings, and appeal an alleged violation of his Fifth Amendment rights.

Rizo's first, and most glaring, hurdle is that his argument does not comport with
the evidence in the record. Before the case proceeded on stipulated facts, the State and
the defense presented the district court with the stipulated facts agreement, signed by
Rizo, which specifically provided:

"2. As part of this agreement, defendant informs the Court of his choice not to
testify in his own defense, to waive confrontation of the State's witnesses and evidence,
and to allow the Court to accept as true the facts set forth in the following exhibits and
stipulations[.]
....
". . . Defendant specifically withdraws any objection to the Court's admission and
consideration of his post-Miranda statements[.]"

At the State's request, the district court held a colloquy with Rizo about the
stipulated facts agreement and additional stipulations. Pointedly, Rizo's brief fails to
acknowledge or discuss this colloquy. At oral argument, defense counsel conceded that
we should consider the district court's verbal exchange with Rizo, in addition to the
submitted written documents, when determining the adequacy of the district court's
actions. But counsel nevertheless maintains that the district court's actions were
insufficient to ensure Rizo understood the rights he was waiving. We disagree.

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 Before allowing the trial to proceed under the stipulated facts agreement, the
district court judge came off the bench and talked with Rizo. The judge confirmed that
Rizo had, in fact, signed both the stipulated facts agreement and the additional
stipulations; that Rizo had ample time to consult with his counsel and obtain answers to
any questions he had; and that it was Rizo's own decision to sign both documents. Rizo
cites no authority to support his claim that his rights were insufficiently protected by the
district court, and we find that argument to be unsupported and unpersuasive.

This court's holding in White v. State, 222 Kan. 709, 568 P.2d 112 (1977),
undermines Rizo's theory. The White court clarified that a bench trial on stipulated facts
is not the same as a guilty plea and does not require the district court to employ the
K.S.A. 22-3210 procedure for accepting a guilty plea. 222 Kan. at 712-13. "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. Here, the
district court did, in fact, interrogate and advise Rizo, i.e., the trial judge went above and
beyond what was required by law. Moreover, this court has confirmed "'that the accused
may waive his right to cross examination and confrontation and that the waiver of this
right may be accomplished by the accused's counsel as a matter of trial tactics or
strategy.'" State v. Kinnell, 197 Kan. 456, 461, 419 P.2d 870 (1966) (quoting Wilson v.
Gray, 345 F.2d 282, 286 [9th Cir. 1965]); see also State v. Laturner, 289 Kan. 727, 739,
218 P.3d 23 (2009) ("[T]he right of confrontation 'falls into the class of rights that
defense counsel can waive through strategic decisions, such as choosing whether and
how to conduct cross-examination or by stipulating to the admission of evidence.
[Citation omitted.]'") (quoting Hinojos-Mendoza v. People, 169 P.3d 662, 669 [Colo.
2007]).

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 In sum, we hold that the district court in this case obtained a knowing and
voluntary jury trial waiver from Rizo and that it did not err in allowing his case to
proceed under the stipulated facts agreement.

MOTION FOR DEPARTURE SENTENCE

Rizo argues that no reasonable person could agree with the district court's denial
of his request for a departure. As the person alleging an abuse of discretion, Rizo bears
the burden of showing such an abuse. See State v. Heywood, 245 Kan. 615, 621, 783 P.2d
890 (1989).

In his brief, Rizo argued for a departure from his felony-murder life sentence. But
at oral argument, Rizo's counsel conceded that no legal authority allowed the district
court to depart from his life sentence. This concession is in line with our recent decision
in State v. Nguyen, 304 Kan. 420, Syl. ¶ 2, 372 P.3d 1142 (2016), where we held that
"K.S.A. 2015 Supp. 21-6806(c) does not give district courts discretion to depart from a
life sentence for felony murder." Therefore, the district court's refusal to depart from the
life sentence for felony murder is affirmed.

Because of that legal deficiency, counsel attempted to pivot and to transform
Rizo's claim into a challenge to the district court's refusal to depart from the on-grid
sentences. But that tack runs head-on into a jurisdictional barrier.

Whether jurisdiction exists is a question of law over which we have unlimited
review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).

The revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2015 Supp. 21-
6801 et seq., defines a defendant's right to appeal from his or her sentence. K.S.A. 2015

13
Supp. 21-6820(c)(1) provides that "the appellate court shall not review: (1) Any sentence
that is within the presumptive sentence for the crime." The KSGA defines "'presumptive
sentence'" as "the sentence provided in a grid block for an offender classified in that grid
block by the combined effect of the crime severity ranking of the offender's current crime
of conviction and the offender's criminal history." K.S.A. 2015 Supp. 21-6803(q).
Consequently, with respect to Rizo's sentences that are derived from the KSGA grid there
is no appellate jurisdiction.

We do note that on one of the counts Rizo was sentenced to the aggravated
number in the applicable grid block. State v. Ross, 295 Kan. 1126, 1135-36, 289 P.3d 76
(2012), found that this court lacked jurisdiction to consider a similar scenario. There, we
stated that "'[u]nder K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to
consider a challenge to a presumptive sentence, even if that sentence is to the highest
term in a presumptive grid block.'" 295 Kan. at 1135 (quoting State v. Johnson, 286 Kan.
824, Syl. ¶ 6, 190 P.3d 207 [2008]); see also State v. Huerta, 291 Kan. 831, 835, 247
P.3d 1043 (2011) ("Merely moving for a departure sentence does not grant the right of
appeal to a defendant, if the result of the motion is a presumptive sentence."). Although
Ross additionally held that this court has jurisdiction to consider whether the district court
abused its discretion in running his felony-murder sentence consecutive to his grid
sentence, 295 Kan. at 1136-38, Rizo does not make that argument; therefore, it is deemed
waived and abandoned. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008)
("an issue not briefed is deemed waived or abandoned").

In short, this court has no jurisdiction to consider Rizo's departure issue and that
claim must be dismissed.

Affirmed in part and dismissed in part.

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