Two Paths for Calculating Criminal History: Path of Admission Relieves State from Producing Additional Evidence

Lexi Christopher, Staff Editor

State v. Corby, No. 122,584 (Kan. Jan. 21, 2022)

Issue: A presentence investigation report (PSI) listed two prior convictions under K.S.A. § 8-1568.  However, the PSI did not specify under which subsection the violations occurred and scored both convictions as person felonies.  When asked by the judge, the defendant admitted the criminal history was correct.  Does a defendant’s admission to prior criminal history as set forth in a PSI relieve the state from having to produce additional evidence to support a criminal history score?

Answer: Yes.

Facts: Corby plead guilty to two counts of illegal drug possession.  The PSI listed two prior convictions for fleeing or attempting to elude an officer in violation of K.S.A. § 8-1568, a crime that constitutes either a misdemeanor or a person felony depending on which subsection of the statute a person violates.  The PSI did not indicate which subsection each conviction was under, but determined that both convictions be scored as person felonies, resulting in a criminal history score of B.  At sentencing, Corby’s counsel stated no objection to the criminal history score of B.  Additionally, when the judge asked Corby if he personally admitted that the criminal history was correct, he answered affirmatively.

Discussion: The Court held that K.S.A. § 21-6814(a) provides two possible scenarios for calculating criminal history.  First, a defendant admits criminal history.  Second, a defendant does not admit criminal history and the court determines criminal history by the preponderance of the evidence standard.  Because Corby admitted to the criminal history at sentencing, the state was relieved of having to prove anything more to support the criminal history score.  Once a criminal history admission is made, the state does not have the burden of proving the classification of those crimes by a preponderance of the evidence.  A defendant’s admission to criminal history includes both an admission to the existence of a conviction and its classification. 

Key Authorities:

Kan. Stan. Ann. § 8-1568.

Kan. Stan. Ann. § 21-6814.

State v. Roberts, 489 P.3d 725, 736–37 (Kan. 2021) (discussing the significance of an admission to criminal history as set forth in the PSI at the sentencing hearing).

State v. Obregon, 444 P.3d 331, 338 (Kan. 2019) (holding a PSI that did not specify which subsection of the statute a prior conviction arose under and was not admitted to by the defendant failed to satisfy the state’s burden).