State v. Pittenger ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,717
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SCOTT PITTENGER,
Appellant.
MEMORANDUM OPINION
Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed October 30,
2020. Affirmed.
Blake A. Robinson, of Manhattan, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., BUSER and BRUNS, JJ.
PER CURIAM: After a bench trial, Scott Pittenger was convicted of misdemeanor
possession of drug paraphernalia. On appeal, Pittenger contends that his conviction must
be vacated because he was deprived of his constitutional right to a jury trial. However, a
review of the record reflects that Pittenger did not properly preserve this issue for appeal
because he failed to raise it with the district court. Moreover, he has failed to provide a
reason why this court should address the issue for the first time on appeal as required by
Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34). In addition, even if
Pittenger had preserved this issue for appeal, we find that he was not entitled to a jury
trial due to the nature of the crimes charged. Thus, we affirm.
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FACTS
On September 2, 2018, Officer Jason Powell served a warrant on Pittenger while
he was painting the Columbian Theater in Wamego. In a search incident to arrest, Officer
Powell found a small object—identified as a thimble—that appeared to have drug residue
inside. Officer Powell also noticed that the thimble had a hole that appeared to be drilled
in the bottom.
The State charged Pittenger with possession of drug paraphernalia in violation of
K.S.A. 2018 Supp. 21-5709(b)(2). Although he initially waived his right to counsel, an
attorney was appointed to represent him after the State amended the complaint to add a
charge of possession of Tetrahydrocannabinol (THC) in violation of K.S.A. 2018 Supp.
21-5706(b)(7) and (c)(3)(A). On June 26, 2019, the district court held a bench trial on
both charges.
At trial, a forensic scientist with the Kansas Bureau of Investigation testified that
the residue inside the thimble tested positive for THC. Likewise, his laboratory report
was admitted into evidence. In addition, Officer Powell testified regarding the execution
of the warrant and his observations of the items confiscated during the arrest. He also
testified about his training and experience that led him to believe the thimble contained
residue of burnt marijuana and that it had been modified for use as drug paraphernalia.
After hearing the testimony presented at trial, the district court convicted Pittenger
of possession of drug paraphernalia but acquitted him on the possession of THC charge.
The district court then sentenced Pittenger to 48 hours in jail and imposed courts costs of
$158. Thereafter, Pittenger filed a timely notice of appeal.
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ANALYSIS
On appeal, Pittenger contends for the first time that he was denied his
constitutional right to a jury trial. As a general rule, we do not review constitutional
grounds for reversal raised for the first time on appeal. See State v. Becker, 311 Kan. 176,
186, 459 P.3d 173 (2020). However, there are several exceptions to this rule, including:
(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; and
(3) the judgment of the district court may be upheld on appeal despite its reliance on the
wrong ground or having assigned a wrong reason for its decision. State v. Patterson, 311
Kan. 59, 62, 455 P.3d 792 (2020).
In order to invoke an exception to the general rule, Kansas Supreme Court Rule
6.02(a)(5) requires an appellant to explain why an issue was not raised below and to
provide a reason why it should be considered for the first time on appeal. In State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the Kansas Supreme Court warned
that an appellant who fails to comply with this rule risks having the newly asserted
argument deemed to be waived or abandoned. Furthermore, our Supreme Court has held
that Rule 6.02(a)(5) is to be strictly enforced. State v. Godfrey, 301 Kan. 1041, 1044, 350
P.3d 1068 (2015).
Here, Pittenger has failed to comply with Rule 6.02(a)(2). First, he has failed to
offer any explanation why he did not raise this issue below. Second, he has failed to
provide a reason why we should consider this issue for the first time on appeal.
Accordingly, we find that Pittenger failed to preserve the jury trial issue for appeal and
we deem this argument to be waived or abandoned.
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Even if Pittenger had preserved this issue for appeal, we also find that his
argument fails on the merits. In particular, Pittenger has failed to show that he had the
right to a trial by jury for these charges under the circumstances presented in this case.
Although both the Sixth Amendment of the United States Constitution as well as § 5 of
the Kansas Constitution Bill of Rights grant a criminal defendant the right to a jury trial,
it is important to recognize that this right is not unlimited.
As the United States Supreme Court has held, when defendants are charged with
"serious" crimes, they have a right to a jury trial. See Baldwin v. New York, 399 U.S. 66,
68-69, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970). In contrast, when defendants are charged
with "petty" offenses, they have no right to a trial by jury. See Duncan v. State of
Louisiana, 391 U.S. 145, 160, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Shannon,
258 Kan. 425, 435-36, 905 P.2d 649 (1995). Moreover, the seriousness of a crime is
based on the possible punishment that could be imposed. Duncan, 391 U.S. at 159-61.
In the present case, the State charged Pittenger with two misdemeanors. Each of
these offences carried a maximum punishment of six months in jail. See K.S.A. 2018
Supp. 21-5709(b)(2) (possession of drug paraphernalia); K.S.A. 2018 Supp. 21-
5706(b)(7) and (c)(3)(A) (possession of THC); K.S.A. 2018 Supp. 21-6602(a)(2)
(restricting the maximum term of confinement for class B misdemeanors to six months).
As such, because the charges brought against Pittenger were "petty offenses" as defined
by Kansas law, he did not have a constitutional right to a jury trial for these offenses. See
Duncan, 391 U.S. at 159-61; Shannon, 258 Kan. at 435-36; State v. Woolverton, 52 Kan.
App. 2d 700, 701-02, 371 P.3d 941 (2016).
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Although Pittenger suggests that he should be entitled to a jury trial because he
was facing a possible sentence of up to 12 months if he had been convicted of both
charges, an aggregation of sentences from several offenses which surpasses 6 months is
not sufficient to establish the right to a jury trial. See Lewis v. United States, 518 U.S.
322, 330, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996). We note that the presumption that
an offense is a petty offense can be rebutted when an offense carries extra penalties that
could transform a charge into a serious offense. See Blanton v. North Las Vegas, 489
U.S. 538, 543, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989). To do so, it must be shown that
the extra penalties are severe enough to result in a serious offense. Blanton, 489 U.S. at
543.
In this case, Pittenger has not attempted to make such a showing. Instead, he
argues that the crime of possession of THC should be considered a serious offense
because a conviction could possibly affect his criminal history should he be convicted in
the future of possession of THC or marijuana. However, we find this argument to be
moot under the circumstance presented in this case because the district court acquitted
Pittenger of the charge of possession of THC. Thus, he does not face this risk.
We recognize that had Pittenger complied with the provisions of K.S.A. 22-3404,
he could have requested a jury trial in this case. K.S.A. 22-3404(1) provides that a
defendant must affirmatively request a jury trial for a petty offense "not later than seven
days after first notice of trial assignment is given to the defendant or such defendant's
counsel." Here, Pittenger makes no claim that he requested a jury trial under K.S.A. 22-
3404(1), and we find no such request in the record on appeal.
In summary, we find that Pittenger has failed to explain why he did not raise the
issue in front of the district court. Likewise, we find that he has not provided any reasons
why this issue should be considered for the first time on appeal. As such, pursuant to
Rule 6.02(a)(5), we conclude that Pittenger has waived or abandoned his claim of a
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constitutional right to a jury trial in this case. We also find that Pittenger's argument fails
on the merits because he has failed to establish that he had the right to a jury trial on the
crimes charged in this case. For these reasons, we affirm Pittenger's conviction.
Affirmed.
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