State v. Roberts
| Decision Date | 19 November 2021 |
| Docket Number | 121,823,121,682 |
| Citation | 498 P.3d 725 |
| Parties | STATE of Kansas, Appellee, v. J'Mario D. ROBERTS, Appellant. |
| Court | Kansas Supreme Court |
Kasper Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
J'Mario D. Roberts contends for the first time on appeal that his sentence is illegal. Specifically, Roberts argues the State failed to meet its burden at sentencing to prove his criminal history score by a preponderance of the evidence because it did not present evidence that three of Roberts' prior person misdemeanors—which were converted to a person felony pursuant to K.S.A. 2020 Supp. 21-6811(a) and led to an enhanced sentence—were either counseled or that he waived the right to counsel in those proceedings.
The State charged Roberts with four counts of possession of various drugs and one count of criminal possession of a weapon by a felon. The State later charged Roberts in a separate criminal case with one count of possession of a weapon by a felon and a traffic misdemeanor. Under a global plea agreement resolving both cases, Roberts pled guilty to possession of an opiate, possession of cocaine, and criminal possession of a weapon in the first and second cases. All remaining counts were dismissed.
Before sentencing, the district court ordered that a presentence investigation (PSI) report be prepared in both cases. Relevant here, the PSI reports showed that Roberts had three prior misdemeanor municipal court convictions from 2010: one for domestic battery and two for violating a protective order. There is no indication in either report or in the record that Roberts had a right to counsel during these proceedings, and if he did have a right, whether he was counseled during those proceedings or waived his right to counsel. These three prior municipal convictions were converted to a person felony under K.S.A. 2017 Supp. 21-6811(a). This additional person felony raised Roberts' criminal history score from a C to a B.
At the sentencing hearing in October 2018, the district court made inquiries related to the criminal history and the criminal history score reflected in the PSI reports:
After receiving these answers, the court made a finding on the record that Roberts' criminal history score was B. The court then sentenced Roberts to 36 months in prison in the first case and a consecutive 19-month prison term in the second case. Based on the plea agreement, however, the court granted Roberts' motion for a downward dispositional departure to probation in both cases.
In April 2019, Roberts stipulated to violating his probation by missing curfew. He waived a hearing on the issue and agreed to serve a 48-hour "quick dip" in jail as an intermediate sanction. Three months later, Roberts stipulated to nine additional probation violations, including the commission of three new crimes. The district court bypassed additional intermediate sanctions, revoked Roberts' probation, and imposed the underlying sentence in each case. Roberts appealed.
In his brief to the Court of Appeals, Roberts made two arguments: (1) the district court erred in revoking his probation and imposing the underlying sentences without first imposing other intermediate sanctions; and (2) the district court imposed an illegal prison sentence because the State failed to meet its burden at sentencing to prove that the three prior misdemeanor municipal court convictions were counseled or that he waived that right.
The Court of Appeals panel first affirmed the probation revocation and imposition of the underlying sentences, finding that the district court had the authority to bypass other intermediate sanctions because Roberts admitted to committing new crimes while on probation. State v. Roberts , No. 121,682, 2020 WL 5268197, at *3 (Kan. App. 2020) (unpublished opinion). The panel then took up and rejected Roberts' illegal sentence challenge. Specifically, it found that the State met its burden to prove Roberts' criminal history at sentencing when Roberts (1) admitted to the score and (2) failed to object to any alleged errors in the criminal history worksheets. The panel ruled that the State met its initial burden to establish criminal history, which under K.S.A. 2020 Supp. 21-6814(c) caused the burden to shift to Roberts to prove that the prior misdemeanor convictions were constitutionally infirm. Because he failed to provide any evidence showing that his misdemeanor convictions were uncounseled or that he did not waive that right in those proceedings, the Court of Appeals held Roberts failed to meet his burden to show his sentences were illegal. 2020 WL 5268197, at *4.
Roberts timely filed a petition for review as to both issues. This court granted his petition as to the illegal sentencing matter only.
Roberts claims the State failed to prove the facts necessary to include three municipal convictions in calculating his criminal history score and that this failure renders his sentences illegal. Although Roberts did not object to his criminal history score before the district court, a challenge to a district court's criminal history score calculation presents an illegal sentence claim. State v. Neal , 292 Kan. 625, 631, 258 P.3d 365 (2011). Whether a sentence is illegal is a question of law over which an appellate court exercises unlimited review. The burden of proof issue raised by Roberts necessarily involves interpretation of the revised Kansas Sentencing Guidelines Act (KSGA). Like the legality of a sentence, statutory interpretation is a question of law over which we have unlimited review. State v. Bryant , 310 Kan. 920, 921, 453 P.3d 279 (2019).
Under the KSGA, a criminal sentence is based on two controlling factors: the defendant's criminal history and the severity level of the crime committed. See K.S.A. 2020 Supp. 21-6804(c) ; K.S.A. 2020 Supp. 21-6807 (); K.S.A. 2020 Supp. 21-6808 (); K.S.A. 2020 Supp. 21-6810 (). When calculating a defendant's criminal history score, three person-misdemeanor convictions are aggregated to constitute one adult person-felony conviction. K.S.A. 2020 Supp. 21-6811(a).
Roberts argues the State did not prove at the sentencing hearing that his three prior misdemeanor municipal court convictions were counseled or that he waived his right to counsel. In the absence of this affirmative showing by the State, Roberts argues those three convictions should not have been converted to a person felony or used to increase his criminal history score.
The parties agree that "[a] person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation." State v. Youngblood , 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009). The parties also agree that "[a]n uncounseled misdemeanor conviction obtained in violation of the misdemeanant's Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding." 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518.
The PSI reports identify the three prior person misdemeanor Wichita Municipal Ordinance (WMO) convictions that were aggregated into a person felony for purposes of calculating Roberts' criminal history in this case.
| Ordinance No. | Description | Case No. | Conviction Date |
| WMO 5.10.025 | Battery-DV | 10DV1880 | 9-27-2010 |
| WMO 5.69.010 | Violation of Protective Order | 10DV1880 | 9-27-2010 |
| WMO 5.69.010 | Violation of Protective Order | 10DV2572 | 9-27-2010 |
A first-time violation of WMO 5.10.025 (domestic battery) subjects an offender to a term of imprisonment between 48 consecutive hours and 6 months. The offender also may be required to pay a fine between $200 and $500. WMO 5.10.025(d). An offender who violates WMO 5.69.010 () is subject to three possible punishments: (1) pay a fine of not more than $2,500, (2) a prison term of up to one year, or (3) both the fine and prison time. Given the nature of these three prior person misdemeanor convictions listed in the PSI reports and the applicable law, it appears that Roberts had a Sixth Amendment right to be represented by counsel during the municipal court proceedings on all three of these charges. There is nothing in the record to establish whether Roberts was represented by counsel or, in the alternative, waived his right to counsel. If he was not represented by counsel and did not waive his right to counsel, the municipal court convictions could be constitutionally invalid under the Sixth Amendment.
The question presented for decision in this case, however, does not center on the constitutional right to counsel in misdemeanor cases but instead on who has the burden to prove the constitutional validity of prior convictions used to enhance a current sentence. Roberts argues the State bears the burden at sentencing to prove his prior misdemeanor convictions were counseled as part of its statutory duty to establish an offender's criminal history in court. The State disagrees, arguing the statute upon which Roberts relies establishes a burden shifting process that comes into play when an offender does not provide written notice of an error in the proposed criminal history worksheet.
Both parties cite to K.S.A. 2020 Supp....
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State v. Myers
...case must be remanded.The State correctly asserts that the Kansas Supreme Court recently rejected the same claim in State v. Roberts , 314 Kan. 316, 498 P.3d 725 (2021). In Roberts , the defendant claimed for the first time on appeal that the State failed to prove that his three prior munic......
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Campbell v. State
... ... the right to have a jury determine guilt beyond a reasonable ... doubt and to appellate review of a guilty verdict. A general ... presumption of regularity, therefore, attaches to the outcome ... of a direct criminal case. See State v. Roberts , 314 ... Kan. 316, 325, 498 P.3d 725 (2021). Accordingly, 60-1507 ... motions are limited to claims demonstrating "exceptional ... circumstances" warranting consideration notwithstanding ... the safeguards afforded defendants in direct criminal cases ... See Trotter ... ...
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State v. Myers
...correctly asserts that the Kansas Supreme Court recently rejected the same claim in State v. Roberts, 314 Kan. 316, 498 P.3d 725 (2021). In Roberts, the defendant claimed for the first time appeal that the State failed to prove that his three prior municipal convictions were counseled or th......
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State v. Steinert
...State of its burden even though PSI failed to state which subsection of a statute Corby had violated). Here, as in State v. Roberts , 314 Kan. 316, 334-36, 498 P.3d 725 (2021), the defendant's admission to his criminal history score relieved the State of its burden to prove that the defenda......