State v. Albano, 120,767

• Decision Date: 28 May 2021
• Docket Number: No. 120,767,120,767
• Citation: 487 P.3d 750
• Parties: STATE of Kansas Appellee, v. Anita Jo ALBANO, Appellant.
• Court: Kansas Supreme Court

487 P.3d 750

STATE of KansasAppellee,

v.Anita Jo ALBANO, Appellant.

No. 120,767

Supreme Court of Kansas.

Opinion filed May 28, 2021.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of the same office, was with him on the briefs for appellant.

David Lowden, deputy county attorney, argued the cause, and Kelly G. Cunningham, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Wall, J.:

Anita Jo Albano was convicted of two drug offenses.In accordance with the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801, et seq., District Court Judge John Bosch imposed her sentence based, in part, on judicial findings he made regarding her criminal history.Albano now contends the KSGA violates section 5 of the Kansas ConstitutionBill of Rights because it allows the court to make criminal history findings for purposes of imposing a sentence, contrary to her right to trial by jury.We disagree.

Section 5 preserves the jury trial right as it historically existed at common law when our state's Constitution was adopted in 1859.Albano bases her constitutional challenge on the assertion that criminal defendants had a common-law right to have sentence-enhancing prior convictions proven to a jury at the time the Kansas Constitution was adopted.To the contrary, Kansas law has long recognized legally significant distinctions between the function of the jury and the court—in particular, that the role of the jury is to determine the accused's guilt or innocence, and the role of the court is to determine punishment and issues relevant to it, including prior convictions.No authority substantiates Albano's contention that our state had adopted a common-law rule inconsistent with this traditional division of functions when the Kansas Constitution was adopted in 1859.Therefore, these traditional function-defining boundaries provide a proper measure of the scope of protection afforded under section 5.Because criminal history findings made for purposes of imposing a sentence falls within the exclusive purview of the court to determine punishment, the KSGA's method of determining a defendant's criminal history does not implicate section 5's right to trial by jury.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Albano of two counts of distribution of a controlled substance within 1,000 feet of a school.One count was a severity level 2 drug felony and the other count was a severity level 3 drug felony.At sentencing, the district court found she had a criminal history score of F based on two prior nonperson felony convictions as reflected in her presentence investigation report.The court imposed a controlling term of 101 months' imprisonment, which was the mitigated term in the presumptive sentencing range based on her criminal history score and her conviction for a severity level 2 drug offense.Albano appealed.

For the first time on appeal, Albano raised her section 5 challenge to the KSGA.She also argued the district court made several instructional errors at her jury trial.The Court of Appeals rejected Albano's claims and affirmed her convictions and sentence.State v. Albano , 58 Kan. App. 2d 117, 464 P.3d 332(2020).We granted Albano's petition for review to address her section 5 challenge to the KSGA.

ANALYSIS

Jurisdiction

We note that Albano received a presumptive sentence under the KSGA.Ordinarily, appellate courts do not have jurisdiction to review presumptive sentences.SeeK.S.A. 2020 Supp. 21-6820(c)(1).But we have recognized an exception for cases in which the defendant challenges the constitutionality of the overall statutory sentencing scheme rather than the defendant's individual sentence.SeeState v. Huerta , 291 Kan. 831, 840, 247 P.3d 1043(2011);State v. Johnson , 286 Kan. 824, 842, 190 P.3d 207(2008).Albano is challenging the KSGA itself, rather than her individual sentence.Therefore, her constitutional challenge is not subject to the jurisdictional bar set forth in K.S.A. 2020 Supp. 21-6820(c)(1).Jurisdiction is proper.SeeK.S.A. 20-3018(b)(petition for review of Court of Appeals decision);K.S.A. 60-2101(b)(providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018).

Legal Framework and Standard of Review

Albano brings her constitutional challenge to the KSGA under section 5 of the Kansas ConstitutionBill of Rights, which provides: "The right of trial by jury shall be inviolate."We have long held that this provision "does not require every trial to be by jury.Nor does it contemplate that every issue, which, by the laws in force at the adoption of the constitution of the state, was triable by jury, should remain irrevocably triable by that tribunal."Kimball and others v. Connor, Starks and others , 3 Kan. 414, 432, 1866 WL 430(1866).Instead, " ‘[s]ection 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence.’ "State v. Love , 305 Kan. 716, 734, 387 P.3d 820(2017).The Kansas Constitution was adopted by constitutional convention in July 1859, ratified by the electors of the State of Kansas on October 4, 1859, and became law upon the admission of Kansas into statehood in 1861.SeeU.S.D. No. 229 v. State , 256 Kan. 232, 239, 885 P.2d 1170(1994).Whether the KSGA violates section 5 is a question of law subject to unlimited review.State v. Gaona , 293 Kan. 930, 957, 270 P.3d 1165(2012).

Summary of the KSGA Framework and Section 5 Challenge

The KSGA is a graduated sentencing scheme that provides increasingly severe presumptive sentences for most convicted felons based on the severity of the crime committed and the defendant's criminal history.A sentencing court determines the presumptive sentence for a given defendant by referencing one of two sentencing grids.K.S.A. 2020 Supp. 21-6804(a)(sentencing grid for nondrug crimes);K.S.A. 2020 Supp. 21-6805(a)(sentencing grid for drug crimes).On both grids, the vertical axis reflects the statutorily assigned severity level of the crime committed, and the horizontal axis reflects the defendant's criminal history score.The presumptive term of imprisonment for a given defendant is found in the grid box at the intersection of the severity level of the crime committed and the defendant's individual criminal history score.This term is expressed in a range of months representing the aggravated, standard, and mitigated terms.K.S.A. 2020 Supp. 21-6804(b), (d);K.S.A. 2020 Supp. 21-6805(b), (d).While the sentencing court has discretion to sentence the defendant anywhere within this presumptive sentencing range, the court must impose a sentence within that range unless it finds substantial and compelling reasons to impose a departure sentence.K.S.A. 2020 Supp. 21-6804(e)(1);K.S.A. 2020 Supp. 21-6815(a).

Under this sentencing scheme, defendants with a higher criminal history score face longer terms of imprisonment.For example, if a defendant is convicted of a severity level 2 drug offense but has no criminal history, he or she faces a presumptive sentence of 92 to 103 months' imprisonment.However, if a defendant is convicted of the same offense and has two prior convictions for nonperson felonies, like Albano, the presumptive sentencing range increases to 101 to 113 months' imprisonment.SeeK.S.A. 2020 Supp. 21-6805(a).

For the purpose of sentencing under the KSGA, a defendant's criminal history score is calculated by considering and scoring the defendant's eligible prior convictions.SeeK.S.A. 2020 Supp. 21-6810.Either the offender must admit his or her criminal history in open court or the sentencing judge must determine the offender's criminal history by a preponderance of the evidence at the sentencing hearing.K.S.A. 2020 Supp. 21-6814(a).

This last provision is the basis of Albano's section 5 challenge.She argues the KSGA violates section 5 because it allows the sentencing court, rather than a jury, to find the existence of prior convictions to determine a defendant's criminal history.She asserts that when the Kansas Constitution came into existence in 1859, the common law required prior convictions that increased the permissive penalty for a crime to be proven to a jury beyond a reasonable doubt.Thus, Albano contends this common-law right was preserved under section 5 and the KSGA's reliance on the court to make criminal history findings for purposes of imposing a defendant's sentence violates this right.

The Court of Appeals rejected Albano's section 5 claim for two reasons.First, the panel found that our court had rejected a similar argument in analyzing the jury trial guarantee provided under the Sixth Amendment to the United States Constitution.The panel predicted we would interpret the rights guaranteed in section 5 to be coextensive with those provided under the Sixth Amendment.Albano , 58 Kan. App. 2d at 127-29, 464 P.3d 332.Second, the panel found that no authority established the existence of a common-law right to have sentence-enhancing prior convictions proven to a jury in Kansas at the time of statehood.58 Kan. App. 2d at 129-34, 464 P.3d 332.Albano challenges both rationales.We examine each in turn.

Albano's Section 5 Claim Should Be Examined Independent of the Sixth Amendment

We first consider the Court of Appeals' conclusion that the rights provided under section 5 of the Kansas ConstitutionBill of Rights are coextensive with those guaranteed by the Sixth Amendment to the United States Constitution.As the State points out, if section 5 is merely coextensive with the Sixth Amendment, established precedent interpreting the Sixth Amendment would foreclose Albano's challenge.In Almendarez-Torres v. United States , 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350(1998), the United States Supreme Court held the Sixth...