State v. Bentley

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

8
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

9
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

15
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

18
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."

19
 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.

20
 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

21
 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

22
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).

23
 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

24
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 . . .

25
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.

26
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.

27
 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.

28
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).

29
 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.

30
 ***

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.").

31
 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.

32
 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:

33
 "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).

34
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

35
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
36
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).

37
 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

38
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

39
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

40
 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.

41