              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 113,300

                                    STATE OF KANSAS,
                                        Appellee,

                                              v.

                                ANDREW CHARLES REDICK,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.


       The exception to the requirement of preservation of an appellate constitutional
challenge—when consideration of an issue is necessary to serve the ends of justice or to
prevent the denial of fundamental rights—is applied to a claim that a criminal defendant's
jury trial waiver was inadequate.


2.


       On the record in this case, the defendant's waiver of his right to jury trial was
knowing and voluntary. The district judge's colloquy during the waiver hearing was
minimally adequate; her failure to specifically address the requirement that a guilty
verdict be unanimous was not fatal; and the defendant demonstrated his awareness and
understanding of the right he affirmatively chose to surrender.




                                              1
3.


        Violation of a sequestration order does not of itself disqualify a witness from
testifying; a district judge, in his or her discretion, may permit the witness to testify. A
district judge's failure to appreciate the existence of this discretion and any corollary
failure to exercise it are legal errors that constitute an abuse of discretion.


4.


        A defendant's failure to proffer excluded testimony makes it impossible for an
appellate court to determine whether a legally erroneous exclusion was harmless.


5.


        A district judge's designation of the incorrect primary crime in a multiple-
conviction case and application of the incorrect criminal history score require vacation of
the defendant's sentence and remand for resentencing.


        Appeal from Shawnee District Court; CHERYL RIOS, judge. Opinion filed April 13, 2018.
Convictions affirmed, sentence vacated, and case remanded with directions.


        Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Joanna Labastida, of
the same office, was on the brief for appellant.


        Rachel L. Pickering, assistant district attorney, argued the cause, and Jodi Liftin, assistant district
attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.




                                                       2
The opinion of the court was delivered by


        BEIER, J.: Defendant Andrew Charles Redick appeals from his convictions for
premeditated first-degree murder and arson in the killing of his girlfriend, Lena Keithley,
and the burning of her car. He was sentenced to life in prison for the murder and to a
consecutive 13 months for the arson.


        Redick challenges the adequacy of his waiver of the right to a jury trial, the district
judge's refusal to admit testimony from a defense witness who had violated a
sequestration order, and the legality of his sentence. We affirm Redick's convictions,
vacate his sentence, and remand the case to the district court for resentencing.


                         FACTUAL AND PROCEDURAL BACKGROUND


        Redick was in a romantic relationship with Keithley. In the weeks leading up to
her death, Redick told multiple people that he believed the spirit of his deceased mother
was living in her.


        On November 14, 2013, Keithley checked into the Country Club Motel in Topeka.
Because Keithley and Redick stayed at the motel regularly, the motel's owner was
familiar with both; and he saw Redick waiting in Keithley's car.


        The following morning, the motel owner began calling Keithley's room after she
failed to check out on time. Unsuccessful in reaching Keithley, he asked the housekeeper
to check the room. The housekeeper found Keithley wrapped in a comforter, lying on the
floor between the bed and a wall. After the housekeeper and the owner were unable to get
a response from Keithley, they called 911. First responders determined Keithley was
dead.
                                               3
       The next day, Keithley's abandoned car was found; its interior had been burned.


       As a result of their investigation into Keithley's death and the burning of her car,
officers arrested Redick, who denied knowing Keithley.


       The State charged Redick with premeditated first-degree murder and arson.


       At the conclusion of a pretrial motions hearing, Redick's counsel informed the
district judge that Redick wished to waive his right to a jury trial, and the district judge
spoke directly to Redick:


                "[Defense counsel]: Your Honor, in our brief break and conversation, Mr. Redick
       indicated to me he was fearful that it would be difficult to find a jury that will not be
       prejudiced against him and that he would like to waive his right to trial by jury and try
       this case to the Bench. I checked with [the prosecutor,] and she's agreeable to that if the
       Court is agreeable to that. I think Mr. Redick's position is he believes he's preserved those
       issues that he would like to appeal; and, that's, I think, probably the driving force behind
       that decision.

                "The Court: Okay. I would like to make independent inquiry of his waiver.
       Please stand. Mr. Redick, you have a constitutional right to be tried by a jury of your
       peers in this community and the Court must provide that to you. But I've been advised
       that you would prefer not to proceed in that fashion, and you would like to waive that
       right. Is that correct?

                "Mr. Redick: Yeah.


                "The Court: And has anyone threatened you or coerced you to get you to waive
       this right against your will?



                                                     4
        "Mr. Redick: No.


        "The Court: Are you proceeding in this way knowingly and voluntarily?


        "Mr. Redick: Yes.


        "The Court: Is this entirely your decision and not your attorney's decision?


        "Mr. Redick: Yes.


        "The Court: Okay.


        "[Defense counsel]: I can advise the Court we have not discussed that until about
five minutes ago quite frankly.


        "The Court: Thank you. All right. At this time the Court will accept defendant's
waiver of his right to have a jury trial, and the Court will proceed on Monday at 9:00 a.m.
Counsel, are you going to have your witnesses ready at nine?


        "[Prosecutor]: You bet.


        "The Court: Monday at 9:00 a.m. for a [] trial to the Bench.


        "[Defense Counsel]: Thank you, Your Honor.


        "[Prosecutor]: Your Honor, I wonder if the defendant is under any medication at
this time?


        "The Court: Yeah, Mr. Redick, I know [] that sounds silly.


        "Mr. Redick: No.




                                            5
               "The Court: It does seem silly, but I will ask because some people do get
       medications for various reasons in custody. And so I need to ask if—


               "Mr. Redick: No, I'm not on any medication or any type of hallucinogenic or any
       type of drug. I just feel that the newspapers, they got, when I sent the affidavit to the
       newspaper, all they seen was the arresting affidavit. They don't see two sides. They see
       one side; and they seen that side several times; and, therefore, they'll never be able to
       know anyone else's side. They are always going to side with the law.

               "The Court: Okay. Well, I appreciate that explanation. You've made it clear in
       fact to me that you are clearly making this—it is a thoughtful decision that you are
       making in your defense; and so I understand it better now. Thank you for explaining that.
               Okay. All right. Thank you. We'll stand in recess."


       During trial, defense counsel requested and received a sequestration order.


       The State's case against Redick included testimony from law enforcement about
Redick's release from jail the day before Keithley's murder and his arrest the day after her
body was discovered. At the time he was arrested, Redick had three pawn tickets in
Keithley's name and the tag from a piece of furniture in his pockets. An officer
determined that the tag came from a chair in a room at the Country Club Motel that
Keithley had rented about a month before her death. In addition, DNA testing confirmed
the presence of Redick's DNA on two cigarette butts in Keithley's room and on
underwear found in a dumpster in the motel's parking lot. Security camera footage from
the motel depicted Redick driving Keithley's car away from the motel about midnight the
night of Keithley's murder, and investigators determined the fire inside Keithley's car had
been intentionally set.


       A friend of Keithley and Redick testified at trial that on the evening of Keithley's
murder, she called Keithley's motel room. Redick answered the phone, and the friend

                                                     6
asked him if he had cigarettes. He did. About 40 minutes later, the friend walked over to
Keithley's room to get a cigarette. Through the closed door to the room, she heard
Keithley say, "You are hurting me," and heard Redick say, "I'll kill you, bitch." The
friend assumed the couple was engaged in rough sex and left without knocking.


       Keithley's niece also testified at trial. She said she saw Redick walking down the
street the morning Keithley's body was found. At that time, she was unaware of
Keithley's death. Redick stopped her car and got inside without her invitation. She said
Redick was "disgusting" and stank of "cleaning fluid and . . . oil." He had a leather gym
bag with him that he kept between his knees. He also asked when she had last seen
Keithley.


       Another friend of Redick testified that Redick came to her home the day Keithley's
body was found and asked her to cut his long hair and to say that the haircut had
happened a day earlier. The woman's daughter testified that she found a motel receipt
with Keithley's name on it after Redick had been at her mother's home.


       Yet another friend of Redick testified that Redick told her he had broken
Keithley's neck and that someone had given her a "hotshot," which she understood to be a
reference to drugs.


       Sometime after news of Keithley's murder spread, Redick asked a friend to hold
Keithley's identification card and Social Security card, as well as jewelry bearing a
"Lena" engraving. The friend also testified that Redick told him he was the last person in
the motel room with Keithley.


       Finally, the State's case also included testimony from the coroner about Keithley's
injuries, which included bruising on her mouth and neck and abrasions on her forearms.
                                             7
He determined that her cause of death was asphyxia due to strangulation. Keithley also
had methamphetamines in her system, which might have hastened but did not cause her
death.


         After the State rested, Redick sought to call a witness in his defense. The district
judge asked whether the witness had been in the courtroom for "all of the testimony," and
defense counsel responded: "She has been." The State then objected, arguing that the
witness had violated the sequestration order. The judge disallowed the testimony.
Defense counsel did not identify the potential witness or make a proffer of the desired
testimony.


         The district judge found Redick guilty on both counts.


         Redick received a hard 25 life sentence for the first-degree murder charge. The
judge identified the murder conviction as the "primary crime" in the journal entry and
sentenced Redick to 13 months on the arson, based in part on a criminal history score of
"I." The judge also depended upon the fact that Redick had murdered Keithley while he
was on felony postrelease supervision, which triggered a special sentencing rule requiring
the sentences to be run consecutively. See K.S.A. 2016 Supp. 21-6606(c) (when
defendant commits crime while on postrelease supervision for felony, new sentence
"shall" be consecutive); see also K.S.A. 2016 Supp. 21-6604(f)(2) (sentencing judge may
impose prison even when sentence presumptively nonprison, if new crime a felony).

                                    WAIVER OF JURY TRIAL

         Redick first argues on appeal that the district judge failed to advise him fully of
the rights he gave up by waiving his right to a jury trial. The State notes that there is a
threshold question concerning preservation on this issue.


                                                8
       The State acknowledges this court has considered this type of issue for the first
time on appeal but argues there is no bright-line rule compelling the court to consider it.
The State suggests that this is not the proper case for exceptional treatment. See State v.
Luna, 271 Kan. 573, 577, 24 P.3d 125 (2001) (declining to consider challenge to jury trial
waiver raised for first time on appeal).


       In general, of course, we do not review issues not raised for the first time until
appeal. See State v. Shadden, 290 Kan. 803, 813, 235 P.3d 436 (2010). But we recognize
three exceptions allowing an appellate court to consider a constitutional issue raised in
such circumstances, including one applied 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)." State v. Rizo, 304 Kan. 974, 978-
79, 377 P.3d 419 (2016).


       In Rizo, this court recognized the prudential nature of the preservation rule and
used its discretion to apply an exception to review a jury trial waiver issue raised for the
first time on appeal. 304 Kan. at 979. We cited State v. Frye, 294 Kan. 364, 369, 277
P.3d 1091 (2012), which did likewise and stated: "[W]hether the court has advised a
defendant of his or her right to a jury trial . . . should be one of the last [issues] to be
denied the opportunity for exceptional treatment." 294 Kan. at 370; see also State v.
Beaman, 295 Kan. 853, 856-62, 286 P.3d 876 (2012) (considering whether jury trial
waiver colloquy adequate when issue raised for first time on appeal). Given the
fundamental nature of the right to jury trial, we will follow the lead of these cases and
address the merits of the issue raised by Redick in this appeal.


       The Rizo decision also restated our standard of review for appellate challenges to
jury trial waivers:


                                                9
                 "'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." 304 Kan.
       at 979.


       Here, we have no dispute on the facts of the colloquy at the time of Redick's jury
trial waiver, and we thus exercise unlimited review on the question of whether Redick
acted knowingly and voluntarily. In doing so, we are mindful that "jury trial waivers
should be strictly construed to ensure the defendant has every opportunity to receive a
fair and impartial trial by jury." State v. Lewis, 301 Kan. 349, 376, 344 P.3d 928 (2015).


       The Sixth Amendment to the United States Constitution and Sections 5 and 10 of
the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury
trial, as does K.S.A. 22-3403(1), which states that all felony cases will be tried to juries,
unless "the defendant and prosecuting attorney, with the consent of the court," elect to
submit the trial to the court. See also 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]). Thus, as we said
in Rizo,


       "[T]he 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)." 304 Kan. at 979-80.




                                                     10
          The choice whether to waive jury trial rests solely with the defendant. State v.
Brown, 305 Kan. 413, 425, 382 P.3d 852 (2016). And "[t]he test for determining a
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." Lewis, 301 Kan. at 376.


          Kansas appellate courts have upheld jury trial waivers even when the district judge
has not fully explained all of the particulars of the right. See Lewis, 301 Kan. at 377-78
(jury trial waiver valid despite judge's failure to inform defendant of attorney's ability to
make challenges to jurors 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 (jury trial waiver valid although
judge did not explain requirement of 12-person unanimity on guilt); State v. Clemons,
273 Kan. 328, 340-41, 45 P.3d 384 (2002) (jury trial waiver valid despite judge's failure
to inform defendant of unanimity requirement); see also State v. Savage, No. 112,882,
2015 WL 8590269, at *5-7 (Kan. App. 2015) (unpublished opinion) (jury trial waiver
valid despite judge's failure to distinguish among jury trial, bench trial, trial on stipulated
facts).


          Redick makes a general claim that the district judge did not inform him of "many
of his rights related to his right to a trial by a jury of his peers" and then specifically
attacks the judge's failure to tell him that a jury's guilty verdict would have to be
unanimous. He places heavy reliance on our Frye decision in favor of a defendant's
appellate claim, but the facts of that case are readily distinguishable from those before us
here. In Frye, we were compelled to hold that a jury trial waiver was inadequate when the
district judge had made no effort to ascertain the validity of a handwritten waiver and had
not advised the defendant of his right to jury trial. 294 Kan. at 371, 373.




                                               11
       We are otherwise unpersuaded by Redick's general or specific arguments. As to
the general, although it is true that the judge's remarks in the colloquy we consider today
were not as expansive as they could be, they were minimally sufficient. And, as noted
above, this court has previously rejected Redick's specific challenge to district judges'
failures to articulate the jury-unanimity requirement. See Beaman, 295 Kan. at 859, 862;
Clemons, 273 Kan. at 340-41. In addition, the transcript of the waiver hearing
demonstrates that Redick knew and understood that he had a right to a jury trial and that
he affirmatively chose to forego it and submit his case to the judge. He explained why he
wished to waive a jury trial, expressing concern about the effect that publicity
surrounding the case would have on his ability to get a fair jury trial. He also was
insistent that he was not on any medication or other drugs that would have impaired a
knowing and voluntary waiver. We would have preferred that the judge explained the
steps that could have been taken to ensure the seating of a fair and impartial jury, whose
participation in the process would be unadulterated by prejudicial pretrial news coverage,
but the omission of this information did not render Redick's waiver unacceptable.


         VIOLATION OF SEQUESTRATION ORDER AND EXCLUSION OF TESTIMONY


       Redick next argues that the district judge's refusal to allow him to present the
testimony of a witness despite the witness' violation of the sequestration order denied him
his constitutional right to a fair trial. He urges that the excluded evidence was integral to
his defense.


       "Under the state and federal Constitutions a defendant is entitled to present the
theory of his or her defense, and the exclusion of evidence that is an integral part of that
theory violates a defendant's fundamental right to a fair trial." State v. Cooperwood, 282
Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006). If constitutional error is found, the court reviews
for harmlessness. The State, as the party potentially benefitting from any constitutional
                                              12
error, bears the burden of establishing harmlessness. State v. Sampson, 297 Kan. 288,
299-300, 301 P.3d 276 (2013). It must demonstrate "beyond a reasonable doubt that the
error complained of did not affect substantial rights, meaning there is not a reasonable
possibility that the error contributed to the verdict obtained." State v. Ward, 292 Kan.
541, 578, 256 P.3d 801 (2011).


       It is a "well-established rule in Kansas . . . that [a] violation of a court order
separating witnesses does not of itself disqualify a witness from testifying, and the trial
court in its discretion may permit the witness to testify." State v. Cantrell, 234 Kan. 426,
430, 673 P.2d 1147 (1983); see also State v. Crum, 286 Kan. 145, 161, 184 P.3d 222
(2008) (sequestration not a right; decision on sequestration committed to sound discretion
of trial court). "Moreover, the aim of sequestration is to 'exercise a restraint on witnesses
tailoring their testimony to that of earlier witnesses and aids in detecting testimony that is
less than candid.' State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998) (citing Geders
v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 [1976])." Crum, 286
Kan. at 161.


       Redick relies on State v. Hill, 10 Kan. App. 2d 607, 609, 706 P.2d 472 (1985), to
establish reversible error. In Hill, a Court of Appeals panel ruled that a district judge
erroneously prohibited a witness from testifying after discovering that the witness had
violated the sequestration order. The panel ruled that the defendant did not need to make
a proffer of the witness' testimony because the judge's ruling essentially treated "the
witness, and not his evidence, [as] incompetent, [rendering it unnecessary] to make a
record of the witness' testimony." 10 Kan. App. 2d at 609.




                                               13
       For its part, the State relies on K.S.A. 60-405, which provides that a


       "verdict or finding shall not be set aside, nor shall the judgment or decision based thereon
       be reversed, by reason of the erroneous exclusion of evidence unless it appears of record
       that the proponent of the evidence either made known the substance of the evidence in a
       form and by a method approved by the judge, or indicated the substance of the expected
       evidence by questions indicating the desired answers."


Under the statute, the State argues, Redick's failure to proffer the testimony of the still-
unidentified witness is fatal to his claim of error or, at a minimum, renders any error
harmless.


       In our view, the State is half right.


       The absence of a proffer does not prevent us from observing that the district judge
erred as a matter of law, and thus abused her discretion, see Ward, 292 Kan. at 576, to the
extent she treated exclusion of the defense witness' testimony as an automatic
consequence of violation of the sequestration order. She could have excused the violation
and allowed or limited the testimony. A failure to recognize that one has discretion and
any corollary failure to exercise it are legal errors. See State v. Stewart, 306 Kan. 237,
262, 393 P.3d 1031 (2017) (abuse of discretion to refuse to exercise it, fail to appreciate
its existence).


       But we agree with the State that any such error cannot be evaluated effectively for
harmlessness on the record before us. The absence of a proffer means that we are unable
to discern whether the unidentified defense witness' testimony could have made any dent,
much less a crippling one, in the State's case against Redick. Although the bulk of that
case was circumstantial, it was nevertheless substantial; and the State may rely entirely
on circumstantial evidence to obtain even the most serious of criminal convictions. See
                                                   14
State v. Banks, 306 Kan. 854, 858-59, 397 P.3d 1195 (2017). And the State's case also
included the more-than-merely-circumstantial testimony from Redick's friend about
Redick's statement that he had broken Keithley's neck. Although the cause of death was
ultimately determined to be asphyxia due to strangulation, a killer with no medical
training might be less than precise in his or her description of a lethal act and its effect.
This reality qualifies the statement from Redick as damning.


                                          ILLEGAL SENTENCE

        Redick's last appellate argument challenges his sentence as illegal. This challenge
requires statutory interpretation, and we review such questions de novo. State v. Brown,
303 Kan. 995, 1005, 368 P.3d 1101 (2016).


        Under K.S.A. 22-3504(1), an "illegal" sentence is


        "'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
        conform to the applicable statutory provision, either in the character or the term of
        authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
        manner in which it is to be served.' State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039
        (2013)." State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).


        Redick argues that his sentence runs afoul of K.S.A. 2016 Supp. 21-6819, which
governs sentencing in multiple-conviction cases, in three ways. Subsection (b) of that
statute focuses on "cases where consecutive sentences may be imposed" and provides in
part:


                "(2) The sentencing judge shall establish a base sentence for the primary
        crime. . . . An off-grid crime shall not be used as the primary crime in determining the
        base sentence when imposing multiple sentences. . . .


                                                     15
                "(3) The base sentence is set using the total criminal history score assigned.


                "(4) The total prison sentence imposed in a case involving multiple convictions
       arising from multiple counts within an information, complaint or indictment cannot
       exceed twice the base sentence. . . .


                "(5) Nonbase sentences shall not have criminal history scores applied, as
       calculated in the criminal history I column of the grid, but base sentences shall have the
       full criminal history score assigned. . . ."


       Redick's three claims are: (1) the district judge incorrectly identified the off-grid
crime of premeditated first-degree murder as the "primary crime" in violation of (b)(2);
(2) the judge incorrectly applied criminal history I to the arson conviction in violation of
(b)(5); and (3) the judge violated subsection (b)(4) by imposing a total sentence greater
than double the correct base sentence on the arson conviction.


       This court has previously interpreted K.S.A. 2016 Supp. 21-6819 and its
predecessors.


       In State v. Walker, 283 Kan. 587, 615, 153 P.3d 1257 (2007), we rejected
defendant Michael D. Walker's argument that his conviction for first-degree felony
murder should have been the primary crime used for calculating his base sentence. The
court, interpreting a previous version of the sentencing guidelines with identical language
to the current subsection (b)(2), held that felony murder cannot be used as the primary
crime when determining the base sentence because it is an off-grid crime. 283 Kan. at
615; see also Kansas Sentencing Guidelines Desk Reference Manual, Appendix B, at 3
(2016) (instructions for completing Kansas Sentencing Guidelines Act Journal Entry of
Judgment: "The Primary Offense is generally the most serious offense of conviction.



                                                      16
However, an off-grid crime shall not be used as the primary crime in determining the
base sentence in multiple conviction cases.").


       We also recently considered how the "double rule" of subsection (b)(4) and an off-
grid life sentence interact in State v. Brown, 303 Kan. 995, 368 P.3d 1101 (2016). In that
case, defendant Milo J. Brown received a life sentence for an off-grid first-degree felony
murder conviction. He also was sentenced for additional on-grid crimes, and the district
judge imposed a consecutive 60 months' imprisonment for an aggravated burglary and
concurrent sentences for three remaining convictions. Brown argued that his sentence
was illegal because the total was longer than twice his base sentence. We rejected this
argument: "The K.S.A. 2014 Supp. 21-6819(b)(4) language on which [Brown] seeks to
rely refers only to the total maximum sentence received for multiple on-grid crimes in
one case." (Emphasis added.) 303 Kan. at 1005-06. The double rule does not apply to an
off-grid sentence. State v. Louis, 305 Kan. 453, 467-68, 384 P.3d 1 (2016).


       Redick was convicted of the off-grid crime of first-degree murder and of arson, a
severity level 7 crime. Under K.S.A. 2016 Supp. 21-6819(b)(2), his murder conviction
could not be the primary crime for establishing the base sentence, because it is off-grid.
This means that Redick's first criticism of the district judge is correct. The judge erred in
identifying the off-grid crime as the primary crime for purposes of calculating Redick's
sentence. The arson conviction, the only other conviction and therefore also the on-grid
crime with the highest severity level, should have been used as the primary crime for
calculating Redick's base sentence.


       The judge's error in misidentifying the primary conviction led to the second
sentencing error, which was use of the statutory criminal history score I instead of
Redick's actual criminal history score C for calculating the arson sentence. See K.S.A.
2016 Supp. 21-6819 (b)(5) (only nonbase sentences calculated using criminal history
                                              17
score I); K.S.A. 2016 Supp. 21-6819(b)(3) (base sentence set using total criminal history
score assigned to defendant). The grid box associated with criminal history score C and a
severity level 7 allowed for an arson sentence of 25 to 29 months, with a presumption of
probation. K.S.A. 2016 Supp. 21-6804 (sentencing guidelines grid for nondrug felonies).
Thus Redick's second sentencing challenge also has merit.


       Redick, however, is incorrect on his third criticism of the district judge. His claim
that his sentence violates the double rule is meritless, because the rule is inapplicable to
off-grid sentences. See Brown, 303 Kan. at 1005-06. Still, the first two errors Redick has
identified mean that his sentence must be vacated and his case remanded for
resentencing. This is necessary despite the possibility that he will be given a longer
prison term. See State v. Walker, 283 Kan. 587, 616, 153 P.3d 1257 (2007) (remand for
resentencing leading to longer sentence; no presumption of vindictiveness, given court's
sound explanation of incorrect calculation of initial shorter sentence).


                                        CONCLUSION


       Defendant Andrew Charles Redick's challenges to his convictions are rejected, but
his sentence is vacated and the case remanded for resentencing consistent with this
opinion.


                                        ***


       BILES, J., concurring: I agree with the majority opinion except on the jury trial
waiver claim. As to that, I concur in the result. I would affirm the district court on this
point as generically as it was argued in defendant's brief. I would further hold any
argument about the trial court's alleged deficiency based on a more specific concern
about potential juror bias was abandoned because it was not briefed. See Supreme Court
                                              18
Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 35) (appellant's brief must include "[t]he arguments
and authorities relied on, separated by issue if there is more than one").


       Redick only argued generally in his brief that the district court did not adequately
advise him about the scope of his jury trial right before his waiver. He claimed the court
failed to inform him of "his many rights." The only particular deficiency he drew
attention to was that the district court "did not inform [him] of . . . the idea that twelve
jurors must unanimously find Mr. Redick guilty beyond a reasonable doubt versus one
district court judge deciding the facts."


       But at oral argument, Redick showed up to assert that the real problem with the
jury waiver colloquy was the trial court's failure to sufficiently explore with him his
concern about potential juror bias. He said this should have caused the district court to
better explain his right to an impartial jury and elaborate how the voir dire process guards
against juror bias. The court's failure to do so, he asserted, rendered the colloquy
inadequate and justified reversal.


       When confronted, Redick conceded this was not argued in his brief. He excused
that oversight by noting the hearing transcript reflected defense counsel's statement that
Redick sought to waive his jury trial right because "he was fearful that it would be
difficult to find a jury that will not be prejudiced against him." He said quoting the
transcript in his brief should be good enough to appear before this court and assert for the
first time his real concern about jury bias as the basis for reversing his conviction.


       But hearing transcripts and records on appeal frequently provide factual support
for arguments that are not advanced on appeal, and that is my problem. All Redick did in
his brief was make a generic argument about plea waiver colloquies, while noting one
flaw in particular—an alleged failure to inform him in greater detail that 12 jurors must
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unanimously find him guilty beyond a reasonable doubt "versus one district court judge
deciding the facts." Showing up at oral argument with something new is inexcusable.
Appellate practice is not a seat-of-the-pants business. See State v. Bowen, 299 Kan. 339,
355, 323 P.3d 853 (2014) (holding when a litigant fails to adequately brief an issue it is
deemed abandoned); see Rule 6.02(a)(5). We should not tolerate a litigant briefing one
deficiency within a broad generic subject area and then claiming another at oral
argument, nor should we address that concern in our decision.


       As the majority points out, our caselaw gives an appellate court under specific
circumstances discretion to address an issue raised for the first time on appeal. This
practice has difficulties because appellate review is transformed into resolving a different
case from the one the district court decided. See Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) ("'[T]oo often our colleagues on the district
courts complain that the appellate cases about which they read were not the cases argued
before them.'"). Those difficulties are made worse when the new complaint is not even
specified in the appellant's brief.


       Therefore, I would not walk the path set by Redick for the first time during oral
argument by gratuitously stating, as the majority does, its preference that the trial judge
should have "explained the steps that could have been taken to ensure the seating of a fair
and impartial jury, whose participation in the process would be unadulterated by
prejudicial pretrial news coverage." Slip op. at 12. Generic claims need not receive more
detailed attention, particularly when a specific deficiency is the only one mentioned in the
briefing. Arguments made for the first time at oral argument should not be rewarded with
prompts from this court about best trial practices for our district courts.


       Our rules put all litigants on notice they must articulate their claims with sufficient
specificity to permit opposing parties and the court to know what the appeal is really
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about. Concerns mentioned during trial court proceedings do not progress to the appellate
courts by stealth. They need to be briefed, or they are abandoned.


      NUSS, C.J. and STEGALL, J., join the foregoing concurrence.




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