State v. Herrera ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 122,767
122,768
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GERAD CHANCE HERRERA,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON. Opinion filed October 8, 2021. Affirmed
in part, sentence vacated, and case remanded with directions.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Alexander C. Driskell, assistant county attorney, Jeffery Ebel, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
WARNER, J.: Kansas statutes require the State to prove a defendant's criminal
history at sentencing by a preponderance of the evidence. The State satisfies this burden
when a presentence investigation report unambiguously lists the crimes the defendant has
previously been convicted of and the defendant does not object to that information. When
the report does not clearly identify the defendant's previous convictions, the report alone
does not meet the State's burden of proof; this is true regardless of whether the defendant
has objected to the report's findings.
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These consolidated cases consider whether this principle—which concerns
ambiguities in a presentence investigation report's listing of a defendant's previous
convictions—also applies to challenges to the process giving rise to those earlier
convictions. Under Kansas caselaw, a defendant's previous misdemeanor convictions
cannot be considered as part of his or her criminal history at sentencing if they were
obtained in violation of a person's right to counsel under the Sixth Amendment to the
United States Constitution. But whether a person was represented during the prosecution
leading to a misdemeanor conviction (or validly waived the right to counsel during those
proceedings) is not information included in a presentence investigation report. Does this
silence mean—in the absence of any objection—that the State is affirmatively required to
provide proof beyond the report to satisfy its burden of proof before those convictions
can be considered at sentencing?
For the reasons we discuss below, we conclude it does not. Because Gerad Herrera
here did not challenge the use of his previous misdemeanor convictions at sentencing, the
reports' identification of his previous misdemeanors was sufficient to satisfy the State's
burden to prove criminal history. If Herrera chooses to argue at a later time that those
misdemeanor convictions should not have been considered, he—not the State—will have
the burden to prove that his misdemeanor convictions were obtained in violation of his
Sixth Amendment rights.
FACTUAL BACKGROUND AND SUMMARY OF CLAIMS ON APPEAL
In January 2020, Herrera pleaded no contest to several offenses in two separate
cases, and the cases proceeded to sentencing. Herrera's presentence investigation reports
indicated that he had a criminal-history score of A in both cases under the Kansas
Sentencing Guidelines. This score was based in part on a 2012 conviction for criminal
threat and on three person misdemeanors, which aggregate under the Guidelines to one
person felony. See K.S.A. 2020 Supp. 21-6811(a). At the sentencing hearing, Herrera
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personally acknowledged that the criminal history in the reports was correct and admitted
his criminal-history score was A. The district court then imposed consecutive 72-month
and 34-month prison sentences in the two cases.
Though Herrera did not object to the reports' recitation of his criminal history at
sentencing, he now challenges three aspects of his sentence on appeal.
• He asserts the State presented insufficient evidence that his 2012 criminal threat
conviction can be used to calculate his criminal-history score, as it is unclear from
the presentence investigation reports whether that conviction was for a reckless
criminal threat—a conviction based on a provision of the statute and found
unconstitutional by State v. Boettger, 310 Kan. 800, 822-23, 450 P.3d 805 (2019),
cert. denied 140 S. Ct. 1956 (2020).
• He asserts the State failed to prove that he received or waived his right to counsel
when he was prosecuted for the three previous misdemeanors, noting that
uncounseled misdemeanor convictions obtained in violation of the Sixth
Amendment to the United States Constitution cannot be used in determining a
person's criminal-history score. See State v. Youngblood, 288 Kan. 659, Syl. ¶ 3,
206 P.3d 518 (2009).
• He argues that the Sixth Amendment and section 5 of the Kansas Constitution Bill
of Rights required that a jury, not the sentencing court, determine his criminal
history before it could be used to enhance his sentence under the Guidelines.
Two of these claims require very little discussion. The State acknowledges, with
respect to Herrera's first argument, that it was not clear from the presentence investigation
reports whether Herrera was convicted of intentional or reckless criminal threat in 2012.
Instead, those reports merely reference "K.S.A. 21-3419," now codified as K.S.A. 2020
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Supp. 21-5415, which includes both the intentional and reckless criminal-threat offenses.
In light of this ambiguity, the parties agree that the cases must be remanded under State v.
Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019), for a hearing where the State must
prove whether that conviction can be considered as part of his criminal history for
sentencing in these two cases.
And our reviewing courts have resolved Herrera's third argument against him. See
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
(noting that Sixth Amendment does not require courts to submit prior convictions to a
jury for sentencing purposes); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002)
(same); see also State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 P.3d 750 (2021) (Section 5
of the Kansas Constitution Bill of Rights "does not guarantee defendants the right to have
a jury determine the existence of sentence-enhancing prior convictions under the revised
Kansas Sentencing Guidelines Act."). We need not address this issue further.
We are thus left to consider Herrera's second argument: that even though he did
not object to the presentence investigation reports' treatment of his three previous
misdemeanors, the State nevertheless was required to provide proof that those offenses
were counseled before they could be considered as part of his criminal history. Though
we recognize that panels of this court have reached varying conclusions on this point, we
find that—absent an objection—the reports' listing of those convictions satisfied the
State's burden of proof at sentencing. If Herrera later decides to challenge his sentences
through a motion to correct an illegal sentence, he—not the State—has the burden to
prove that those convictions should not have been considered.
DISCUSSION
The Kansas Sentencing Guidelines use a combination of a defendant's criminal
history and the severity level of the crime of conviction to determine the presumptive
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sentencing range for those crimes. See K.S.A. 2020 Supp. 21-6804 (providing the
presumptive sentences for nondrug crimes). A person's criminal history for sentencing
purposes generally includes any previous felony and misdemeanor convictions. See
K.S.A. 2020 Supp. 21-6810(c), (d)(2), (d)(6).
This general rule has several notable exceptions, two of which are relevant here.
First, germane to Herrera's first claim on appeal, a conviction based on a statute that has
since been held unconstitutional cannot be considered as part of a person's criminal
history at sentencing. K.S.A. 2020 Supp. 21-6810(d)(9). Thus, if Herrera's 2012
conviction was for a reckless criminal threat—an offense the Kansas Supreme Court
found unconstitutional in Boettger—that offense cannot be used to calculate his criminal
history for the sentences in the two cases now before us. As we have indicated, the parties
agree that this case must be remanded for a new sentencing hearing to allow the State to
present evidence as to whether Herrera's 2012 conviction may be considered for
sentencing purposes.
The Kansas Supreme Court discussed another exception—this one relevant to
Herrera's second claim—in Youngblood. There, the court held that a previous
misdemeanor conviction obtained when a person was not represented by counsel (and
had not waived his or her right to counsel) that resulted in a prison or jail sentence cannot
be used to enhance the person's sentence in a later case. 288 Kan. 659, Syl. ¶ 3; see also
State v. Tims, 302 Kan. 536, Syl. ¶ 2, 355 P.3d 660 (2015) (reiterating the holding in
Youngblood). Based on this exception, Herrera argues that the district court erred at
sentencing when it used his previous misdemeanor convictions to determine his criminal
history and effectively extend the duration of his sentence, as the State did not prove that
he was represented by counsel in those earlier cases.
Before considering the merits of Herrera's argument, it is helpful to review the
procedures for determining a defendant's criminal history at sentencing. These procedures
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are outlined in K.S.A. 2020 Supp. 21-6813 and K.S.A. 2020 Supp. 21-6814. Before
sentencing, the State prepares a presentence investigation report, which includes a
"summary of the offender's criminal history prepared for the court." K.S.A. 2020 Supp.
21-6814(b); see K.S.A. 2020 Supp. 21-6813 (governing presentence investigation
reports). This report includes, among other information, a "listing of prior adult
convictions or juvenile adjudications for felony or misdemeanor crimes or violations of
county resolutions or city ordinances comparable to any misdemeanor defined by state
law," along with any supporting documentation the court services officer obtained to
verify those convictions. K.S.A. 2020 Supp. 21-6813(b)(5).
The State bears the burden of proving a defendant's criminal history at sentencing.
See K.S.A. 2020 Supp. 21-6814. A defendant's criminal history may either be "admitted
in open court by the offender" or "determined by a preponderance of the evidence at the
sentencing hearing by the sentencing judge." K.S.A. 2020 Supp. 21-6814(a). When the
presentence investigation report clearly sets forth the defendant's criminal history and the
defendant does not object to the report's summary, submission of the report "satisf[ies]
the [S]tate's burden of proof." K.S.A. 2020 Supp. 21-6814(b). If a defendant believes the
criminal history in the report is not accurate, he or she must object to the incorrect
information—providing the court and the prosecutor with "written notice" that
"specif[ies] the exact nature of the alleged error." K.S.A. 2020 Supp. 21-6814(c). The
State then must "produce evidence" of the defendant's criminal history "to establish its
burden of proof." K.S.A. 2020 Supp. 21-6814(c).
In contrast to these procedures, if a person decides to challenge his or her criminal
history later—without objecting at sentencing—"the burden of proof shall shift to the
offender to prove such offender's criminal history by a preponderance of the evidence."
K.S.A. 2020 Supp. 21-6814(c). For this reason, even though the State bears the burden of
proving a person's criminal history at sentencing, a defendant who later files a motion
challenging the offenses on which his or her sentence was based, such as a K.S.A. 22-
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3504 motion to correct an illegal sentence, bears the burden to prove any error. See State
v. Neal, 292 Kan. 625, 633, 258 P.3d 365 (2011).
Despite K.S.A. 2020 Supp. 21-6814(c)'s burden-shifting framework, our Kansas
Supreme Court has held that the absence of an objection does not automatically mean the
State has met its burden of proof at sentencing. In particular, a presentence investigation
report does not satisfy the State's burden of proof at sentencing—regardless of whether
the defendant objected—when the report does not clearly identify a person's previous
convictions. See Obregon, 309 Kan. at 1275.
In Obregon, the court considered the adequacy of a presentence investigation
report in the "'"narrow range of cases"'" where a statute giving rise to a previous
conviction "'comprises multiple, alternative versions of the crime'" that may be
categorized differently for sentencing purposes. 309 Kan. at 1273-74 (quoting Descamps
v. United States, 570 U.S. 254, 261-62, 133 S. Ct. 2276, 186 L. Ed. 2d 438 [2013]). The
defendant in Obregon had previously been convicted of battery in Florida. Under the
Florida statute, depending on the nature of the offense, that conviction could be classified
in Kansas as a person or nonperson crime. Obregon's presentence investigation report,
however, merely cited the Florida statute generally as the basis for Obregon's previous
conviction; it did not "indicate what version of the [Florida] offense he committed."
Obregon, 309 Kan. at 1275.
The Obregon court found that even though the defendant had not objected to his
criminal-history summary at sentencing, the State still had not satisfied its burden to
prove his previous offenses given this ambiguity. Obregon observed—consistent with
K.S.A. 2020 Supp. 21-6814—that the "presentence investigation summary frequently can
satisfy the State's burden absent defendant's objection." 309 Kan. at 1275. But the court
reasoned that "more is required when the summary does not indicate which version of the
out-of-state offense the defendant committed." 309 Kan. at 1275. In these narrow
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circumstances, when the presentence investigation report does not clearly identify the
crime of conviction, the State must produce "additional proof" beyond the report to
satisfy its burden. 309 Kan. at 1275. Thus, regardless of whether Obregon objected to the
criminal history at sentencing, the presentence investigation report in that case did not
contain sufficient information to satisfy the State's burden of proof. 309 Kan. at 1275.
Herrera seeks to expand Obregon's holding to encompass the facts of his cases. He
notes that the presentence investigation reports for his current offenses did not indicate
whether he had counsel in the proceedings leading to his previous misdemeanor
convictions. He asserts that under the Kansas Supreme Court's reasoning in Youngblood,
the State had an obligation—just as it did in Obregon—to produce additional evidence
beyond the presentence investigation reports that he had been represented by counsel (or
had waived the right to counsel) in those earlier cases. Youngblood, 288 Kan. at 662. And
though Herrera acknowledges he did not object to the presentence investigation reports
on this basis (or on any basis) at sentencing, he argues that the Kansas Supreme Court has
indicated that the State has the burden to prove a defendant's criminal history throughout
a direct appeal. See Neal, 292 Kan. at 633.
Various panels of our court have addressed this argument since the Kansas
Supreme Court's decision in Obregon and have arrived at different conclusions. Most
panels have concluded that the State satisfies its burden of proof by submitting a
presentence investigation report showing previous misdemeanor convictions unless a
defendant objects to using those convictions for criminal-history purposes. See State v.
Corby, No. 122,584, 2021 WL 2275517, at *2-5 (Kan. App. 2021) (unpublished opinion),
rev. granted 313 Kan. 1043 (2021); State v. Llamas, No. 122,478, 2021 WL 1945160, at
*4-5 (Kan. App. 2021) (unpublished opinion), petition for rev. filed June 14, 2021; State
v. McCarty, No. 122,067, 2021 WL 1149162, at *8-10 (Kan. App. 2021) (unpublished
opinion), petition for rev. filed April 20, 2021; State v. Roberts, No. 121,682, 2020 WL
5268197, at *3-4 (Kan. App. 2020) (unpublished opinion), rev. granted 312 Kan. 8998
(2021). But at least one panel has come to the opposite conclusion. State v. Beltran, No.
121,200, 2020 WL 7409937, at *2-4 (Kan. App. 2020) (unpublished opinion).
Like the majority of our court's panels that have considered this issue, we find the
challenge Herrera now raises to be fundamentally different from the statutory ambiguities
the Kansas Supreme Court considered in Obregon. The presentence investigation report
in Obregon was not sufficient to satisfy the State's burden of proof because it did not
clearly identify the defendant's previous convictions; it merely cited to a statute that could
comprise both person and nonperson crimes. Thus, the State could not rely solely on that
report to prove the defendant's criminal history. But Herrera does not claim his
presentence investigation reports were unclear in their identification of his previous
misdemeanor convictions. Instead, he claims that the reports did not demonstrate that the
process leading to those convictions was constitutionally sound.
The facts of Youngblood help illustrate this difference. Youngblood was charged
with possession of marijuana—a felony offense because he had a previous municipal
conviction for marijuana possession. He moved to dismiss the felony charge, arguing he
did not have counsel during the municipal proceedings and thus use of the earlier
conviction to charge the current offense as a felony violated his right to counsel under the
Sixth Amendment. The district court in Youngblood recognized that "the State had the
burden of showing that the prior misdemeanor conviction was constitutionally obtained."
288 Kan. at 661. The district court therefore held an evidentiary hearing on Youngblood's
dismissal motion, where the parties submitted documentary evidence from the municipal
case and the municipal judge testified. The district court ultimately denied Youngblood's
motion, wrongly concluding that the exception did not apply because Youngblood's jail
sentence had been suspended and he had been placed on probation.
The Kansas Supreme Court found this fact—that Youngblood had been given
probation—to be a red herring. The key was that Youngblood had been sentenced to a
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period of incarceration, regardless of whether he was required to spend that time in jail or
prison. 288 Kan. at 670. And the Supreme Court found the State had not carried its
burden at the evidentiary hearing to prove Youngblood had counsel during the earlier
municipal proceedings. 288 Kan. at 664-65. Thus, that earlier uncounseled municipal
conviction could not be used to elevate the later possession-of-marijuana charge to a
felony. 288 Kan. at 670.
As Youngblood illustrates, whether a person was represented by counsel during a
previous proceeding—or whether there has been an adequate waiver of the right to
counsel—can be a fact-intensive inquiry. It is markedly different from identifying a
person's crime of convictions. And while presentence investigation reports are required
by statute to list a defendant's previous convictions, those reports are not required to
include information regarding the process giving rise to those convictions, such as
whether a person was represented by counsel. See K.S.A. 2020 Supp. 21-6813(b)(5).
Indeed, the practical result of Herrera's position would be to require the State—regardless
of whether the defendant raises any challenge or objection—to affirmatively prove the
constitutionality of the process giving rise to all previous convictions before they can be
considered for criminal-history purposes. Such a rule would entirely undermine the
process outlined in K.S.A. 2020 Supp. 21-6814.
Instead, if a presentencing investigation report clearly identifies a defendant's
previous crimes of conviction, the report satisfies the State's burden of proof at
sentencing unless the defendant objects. See K.S.A. 2020 Supp. 21-6814(b), (c). If
Herrera had raised his question at sentencing as to whether he had counsel during the
proceedings leading to his previous misdemeanor convictions, the State would have been
required to present evidence on this matter to satisfy its burden of proof. See Youngblood,
288 Kan. at 664-65. But without an objection, the presentence investigation reports
satisfied the State's burden of proof. See K.S.A. 2020 Supp. 21-6814(b).
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Before concluding, we pause to summarize the contours of our decision on appeal.
Herrera did not object to the presentence investigation reports' list of his previous
convictions at sentencing. Because the reports clearly identified his previous
misdemeanor convictions, those reports satisfied the State's burden to prove his criminal
history under K.S.A. 2020 Supp. 21-6814(b).
Herrera does not argue on appeal that his previous misdemeanor convictions were
uncounseled. He merely alleges the presentence investigation reports were not sufficient
to satisfy the State's burden of proof, and we limit our consideration to that question. Any
attempt by Herrera to raise a new argument challenging the process in those previous
misdemeanor cases for the first time on appeal would be premature, as there has been no
opportunity for Herrera to present testimony or otherwise submit evidence so the district
court may resolve this factual question. At least one other panel of the Court of Appeals
has dismissed such efforts as unripe. See Roberts, 2020 WL 5268197, at *4.
If Herrera decides to challenge the use of his previous misdemeanor convictions
on remand or later through a motion to correct an illegal sentence, he—not the State—
will bear the burden to show the court applied the wrong criminal history to determine his
sentences. K.S.A. 2020 Supp. 21-6814(c); see Neal, 292 Kan. at 633.
For these reasons, the district court did not err when—relying on the presentence
investigation reports, in the absence of an objection—it included Herrera's misdemeanor
convictions in assessing his criminal history at sentencing. Nevertheless, based on the
agreement of the parties, we vacate the defendant's sentence and remand the case to the
district court to determine whether Herrera's 2012 conviction for criminal threat may be
considered during sentencing in light of the Kansas Supreme Court's decision in Boettger.
Affirmed in part, sentence vacated, and case remanded with directions.
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***
HILL, J., dissenting: I must respectfully dissent with the majority's holding that
the presentence reports satisfied the State's burden to prove the defendant's criminal
history under K.S.A. 2020 Supp. 21-6814(b). I think the district court should address on
remand the issue of whether Herrera's misdemeanor convictions can be used in
calculating his criminal history, as well.
State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019), stands for the idea
that a presentence report that does not identify a defendant's prior convictions does not
satisfy the State's burden to prove that defendant's criminal history. The lack of an
objection by the defendant does not mean the State is home-free from having to prove
that history. This is the same reasoning I followed in State v. Beltran, No. 121,200, 2020
WL 7409937, at *2-4 (Kan. App. 2020) (unpublished opinion).
We are vacating his sentence and remanding, anyway. I would not limit the district
court to consider only whether Herrera's 2012 conviction for criminal threat may be
considered during sentencing given the Kansas Supreme Court's decision in State v.
Boettger, 310 Kan. 800, 822-23, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956(2020). I would have the district court consider whether the misdemeanor convictions can
be used, as well.
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