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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 103,361 STATE OF KANSAS, Appellee, v. KARL BEAMAN, Appellant.

SYLLABUS BY THE COURT

1. Ordinarily, constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review. But certain exceptions are recognized to this general rule, one of which is when consideration of a new theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights.

2. In a felony prosecution, the right to a jury trial may be waived. But to be valid, the waiver must be knowingly and voluntarily made in writing or in open court for the record. The presiding judge has a duty to ensure that a defendant's rights have been adequately protected.

3. In a criminal case, the decision to grant a continuance lies within the sound discretion of the district court.

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4. An appellate court reviews under an abuse of discretion standard a district court's determination whether mitigating circumstances presented under K.S.A. 21-4643(d) are substantial and compelling reasons for a departure sentence.

5. Judicial discretion is abused if judicial action is (a) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (b) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed October 19, 2012. Affirmed in part, vacated in part, and remanded with directions.

Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Karl Beaman directly appeals his convictions for rape under K.S.A. 213502(a)(2) and aggravated indecent liberties with a child under K.S.A. 21-3504(a)(1). He argues the district court erred by: (1) allowing him to improperly waive his right to a jury trial; (2) refusing to grant defense counsel a continuance to research Jessica's Law sentencing issues; (3) denying his departure motion; (4) sentencing him to a life sentence 2

with no parole for 25 years when another statute permits parole after 20 years; (5) imposing lifetime postrelease supervision; (6) imposing electronic monitoring; and (7) sentencing him to the aggravated sentence without having the aggravating factors submitted to a jury. We affirm Beaman's convictions. We vacate that portion of his sentence imposing postrelease supervision for the rape conviction. We also remand to the district court for a nunc pro tunc order to correct a portion of the journal entry to delete reference to electronic monitoring, but we affirm the remainder of his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Beaman was charged in a two-count complaint with rape and aggravated indecent liberties with a child. He admitted the criminal conduct but disputed the date of the rape because he claimed it occurred after the victim had turned 14. On the morning of jury trial, Beaman informed the court that against the advice of his attorney, he wanted to waive his right to a jury trial and proceed with a bench trial instead. The record reflects the following exchange:

"THE COURT: Mr. Beaman, your attorney has advised the Court that it is your desire to waive a jury for this trial; is that correct? "THE DEFENDANT: Yes, sir. "THE COURT: He's explained to you and he's indicated to me that that's against his advice, is that right? "THE DEFENDANT: That is correct, sir. "THE COURT: He's indicated you

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