State v. Duncan ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,379
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SUMMER DAWN DUNCAN,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed December 17, 2021.
Affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Kelsey M. Moore, assistant county attorney, Jeffery Ebel, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., WARNER and ISHERWOOD, JJ.
PER CURIAM: Summer Duncan appeals her 68-month prison sentence for
possession of methamphetamine with the intent to distribute. She asserts the State failed
to meet its burden of proving her criminal history for previous misdemeanor and out-of-
state convictions. She also argues that it was unconstitutional for the district court, and
not a jury, to determine her criminal history for sentence-enhancement purposes. Lastly,
Duncan challenges the denial of a dispositional departure sentence. After reviewing the
record and the parties' arguments, we find no error and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In August 2020, Duncan pleaded no contest to possession of methamphetamine
with intent to distribute. Her presentence investigation report listed her criminal-history
score as C, based in part on three person-misdemeanor convictions that were aggregated
as equivalent to one person felony under the Kansas Sentencing Guidelines. See K.S.A.
2020 Supp. 21-6811(a). The presentence investigation report also listed three nonperson-
felony convictions from Arkansas: one conviction for possession of methamphetamine
under Ark. Code Ann. § 5-64-419 (2013) and two convictions for possession of drug
paraphernalia under Ark. Code Ann. § 5-64-443 (2011).
The presentence investigation report did not include journal entries for any of
these convictions. As a result, there was no indication of whether Duncan had an attorney
for her misdemeanor convictions or whether she waived that right. The report also did not
indicate which specific subsections of the two Arkansas statutes formed the basis for
Duncan's out-of-state convictions. The report did state that the Arkansas offenses were
nonperson felonies.
At sentencing, Duncan personally admitted that she had reviewed her criminal
history in the presentence investigation report and had no objections to the information
included. With a criminal-history score of C based on the aggregated misdemeanors and
Arkansas convictions, Duncan faced a presumptive sentence of 68 months in prison
under the Kansas Sentencing Guidelines. Duncan moved for a dispositional departure,
citing various factors that she argued warranted probation. The district court denied
Duncan's motion and sentenced her to the presumptive sentence. She now appeals.
DISCUSSION
Duncan raises three arguments in her appeal. She asserts the court erred when it
sentenced her under a criminal-history score of C, claiming the State failed to carry its
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burden of proof with respect to the misdemeanor and out-of-state convictions. She also
claims that section 5 of the Kansas Constitution Bill of Rights requires a jury, not a judge,
to make findings regarding her criminal history. And she argues the district court should
have granted her departure motion.
We can resolve Duncan's second and third claims briefly at the outset:
• The Kansas Supreme Court rejected her second argument under section 5 while
this appeal was pending. 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 are
bound by this decision and need not address the issue further.
• We lack jurisdiction to review the denial of Duncan's motion for a dispositional
departure since Duncan received a sentence within the presumptive range under
the Kansas Sentencing Guidelines. See K.S.A. 2020 Supp. 21-6820(c)(1)
(appellate courts "shall not review . . . [a]ny sentence that is within the
presumptive sentence for the crime"); State v. Williams, 37 Kan. App. 2d 404,
407-08, 153 P.3d 566, rev. denied 284 Kan. 951 (2007).
We are thus left to consider Duncan's arguments surrounding the evidence
supporting her criminal-history score—namely, the presentence investigation report's
consideration of her previous misdemeanor convictions and the report's classification of
her Arkansas convictions. We do so recognizing that Duncan did not object to her
criminal history on either ground when given the opportunity at sentencing; in fact, she
affirmatively indicated that the report was accurate. We also recognize that panels of this
court have reached different conclusions on both questions. But we conclude that the
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report's listing of the misdemeanor and out-of-state convictions satisfied the State's
burden of proving Duncan's criminal history when she did not object at sentencing.
1. The presentence investigation report satisfied the State's burden of proving
Duncan's misdemeanor convictions.
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
sentencing range for those crimes. See K.S.A. 2020 Supp. 21-6805 (providing the
presumptive sentences for drug 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).
One exception to this rule is that a previous misdemeanor conviction obtained
when a person was not represented by counsel (and had not waived his or her right to
counsel) and that resulted in a prison or jail sentence cannot be used to enhance the
person's sentence in a later case. State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d
518 (2009); see also State v. Tims, 302 Kan. 536, Syl. ¶ 2, 355 P.3d 660 (2015)
(reiterating the holding in Youngblood).
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
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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-
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).
In limited circumstances, a presentence investigation report's criminal-history
summary may not satisfy the State's burden, even when a defendant fails to object. State
v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). In Obregon, our Supreme Court
held that the State did not meet its burden of proving the defendant's criminal history
when the presentence investigation report failed to say whether a previous out-of-state
offense was a person or nonperson crime. 309 Kan. at 1275. Although the presentence
investigation report "frequently can satisfy the State's burden absent defendant's
objection, . . . more is required when the summary does not indicate which version of the
out-of-state offense the defendant committed." 309 Kan. at 1275; see also State v. Ewing,
310 Kan. 348, 359-60, 446 P.3d 463 (2019) (applying Obregon).
Duncan, who did not object to her criminal history at sentencing, seeks application
of Obregon to her misdemeanor convictions. She asserts that the State did not meet its
burden of proving those convictions because the presentence investigation report did not
specify whether they were counseled. But the Kansas Supreme Court recently rejected
this argument in State v. Roberts, 314 Kan. ___, 2021 WL 5409140 (No. 121,682,filed
November 19, 2021). The court held in Roberts that
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"a defendant who fails to object at or before sentencing to the constitutional validity of a
prior conviction used to enhance a current sentence, based on a claim of absence of
counsel without a valid waiver, has the burden to show by a preponderance of the
evidence that the prior conviction is invalid, regardless of whether the defendant's post-
sentencing challenge to the allegedly uncounseled prior conviction is brought on direct
appeal of the current sentence or in a proceeding collaterally attacking that sentence.
Absent such a showing, the prior conviction is presumed to be regular and valid."
Roberts, 314 Kan. ___, Syl. ¶ 6, 2021 WL 5409140.
We note that Duncan does not actually attack the presentence investigation report's
identification of her previous misdemeanor convictions. Instead, she argues the State
must affirmatively prove that the process giving rise to each of her misdemeanor
convictions was constitutional. But this assertion, which the Roberts court rejected,
would undermine the framework in K.S.A. 2020 Supp. 21-6814 and effectively eliminate
the objection requirement. Because the presentence investigation report clearly identified
Duncan's misdemeanor convictions and she did not object to that identification, the State
met its burden of proving Duncan's criminal history with respect to her misdemeanor
convictions.
Duncan also argues the State did not meet its burden under K.S.A. 2020 Supp. 21-
6813(b)(5), asserting the statute requires the State to attach any available journal entries
of past convictions to the presentence investigation report. But even if we were to
interpret K.S.A. 2020 Supp. 21-6813(b)(5) in the manner Duncan suggests, she still had
to object to alert the district court to the alleged deficiency. K.S.A. 2020 Supp. 21-
6814(b) is clear that—in the absence of any objection—the presentence investigation
report's criminal-history summary met the State's burden.
Duncan does not allege that her misdemeanor convictions were uncounseled—
only that the State did not meet its burden. If Duncan wants to show that her criminal-
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history score is invalid because the listed misdemeanors were uncounseled, she must do
so under K.S.A. 2020 Supp. 21-6814's burden-shifting framework. See Roberts, 314 Kan.
___, Syl. ¶ 6. Because Duncan did not object at sentencing, she will have the burden in
any future challenge to show that her misdemeanors were uncounseled.
2. The presentence investigation report's criminal-history summary proved Duncan's
Arkansas felony convictions when Duncan did not object.
Under the same Obregon framework, Duncan argues that the State did not meet its
burden of proving her previous Arkansas convictions were felonies because the
presentence investigation report did not list the specific subsections under which she was
convicted. The statutes at issue contain both felony and misdemeanor provisions, so she
asserts the State did not prove her Arkansas convictions were felonies. Though we
recognize that out-of-state convictions present a different question under Obregon than
the uncounseled misdemeanors we discussed in the previous section, we do not find this
argument persuasive for two primary reasons.
First, even though the presentence investigation report did not identify the specific
statutory subsections giving rise to Duncan's Arkansas convictions, it did identify
Duncan's convictions as felonies. The report labels all three of Duncan's Arkansas
convictions as "AFN," which it defines as "Adult Felony Nonperson." Duncan did not
object to that designation.
Panels of this court have differed on whether the State meets its burden when it
fails to provide the applicable subsection of a statute that includes felonies and
misdemeanors. One panel found that, when the defendant did not object to his criminal
history at sentencing, the presentence investigation report satisfied the State's burden
even though the criminal-history summary did not specify the applicable statutory
subsections. State v. Corby, No. 122,584, 2021 WL 2275517, at *2-4 (Kan. App.)
(unpublished opinion), rev. granted 314 Kan. ___ (2021). Although the statute listed
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included both felonies and misdemeanors, the presentence investigation report still
designated the convictions as "AFP"—adult person felonies. 2021 WL 2275517, at *3.
That designation, combined with the defendant's failure to object to it, distinguished
Corby from Obregon and meant that the State had met its burden of proving the
defendant's criminal history. Corby, 2021 WL 2275517, at *4.
Another panel found that failure to include a subsection of a statute that contained
both felony and misdemeanor provisions could not prove the defendant's criminal
history—even without an objection. State v. Chenault, No. 121,998, 2020 WL 6935616,
at *3-4 (Kan. App. 2020) (unpublished opinion). The panel held that a presentence
investigation report that fails to designate an applicable subsection "does not provide
substantial competent evidence to support the district court's classifications." 2020 WL
6935616, at *3. The Chenault panel did not address the presentence investigation report's
designation of these convictions as "AFN," or nonperson felonies.
We agree with the Corby panel that the State met its burden of proving out-of-state
felonies when the presentence investigation report identified Duncan's Arkansas
convictions as felonies—even without listing a subsection of the relevant statute—and
Duncan did not object to that identification. Under K.S.A. 2020 Supp. 21-6814, it is
incumbent upon Duncan—not the State—to object to any errors in the presentence
investigation report. See K.S.A. 2020 Supp. 21-6814(b), (c); Corby, 2021 WL 2275517,
at *3.
Second, one of the Arkansas convictions listed in the presentence investigation
report—possession of methamphetamine under Ark. Code Ann. § 5-64-419—must be a
felony. That statute designates methamphetamine-related crimes as felonies only. See
Ark. Code Ann. § 5-64-419(b)(1) (2013). This conviction alone, a nonperson felony,
would lead to a criminal-history score of C when combined with the person felony
aggregated from Duncan's misdemeanor convictions. See K.S.A. 2020 Supp. 21-6805(a)
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(listing a C criminal-history score as "1 Person & 1 Nonperson Felonies"). We further
note that Arkansas convictions for possession of drug paraphernalia are felonies when the
paraphernalia is used in conjunction with methamphetamine. See Ark. Code Ann. § 5-64-
443(a)(2) (2011). According to the presentence investigation report, Duncan's two
Arkansas convictions for possession of drug paraphernalia arose out of the same criminal
case as her conviction for possession of methamphetamine, and her attorney indicated
that all three Arkansas offenses were methamphetamine-related. Thus, while including
the specific statutory subsection giving rise to the conviction in the presentence
investigation report is certainly the best and surest way for the State to carry its burden of
proof regarding an out-of-state conviction, the absence of that information in this case
does not render the sentencing findings deficient.
The district court did not err when it calculated Duncan's criminal-history score.
Affirmed.
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