Challenging Prior Convictions in Kansas Sentencing: Who Has the Burden, and When?

Jeremiah Kemper, Staff Editor

State v. Roberts, No. 121,682, (Kan. Nov. 19, 2021)

Issue: Under K.S.A. § 21-6814(c), when a defendant challenges the constitutionality of their prior convictions at or before their initial sentencing hearing, the State has the burden of proving any disputed portions of the defendant’s criminal history.  If a defendant fails to challenge their prior convictions at the initial hearing, but does so on direct appeal of the sentencing, does the government still have the burden of proof? 

Answer: No. The government no longer has the burden of proof if the defendant first challenges their prior convictions during the direct appeal.

Facts: Roberts pled guilty to possession of various illegal substances and criminal possession of a firearm.  The prosecution used K.S.A. § 21-6811(a) to count Roberts’s three prior misdemeanor convictions as one person felony conviction for his criminal history score.  At sentencing, Roberts admitted to the prior convictions.  Then, on direct appeal, he challenged the constitutionality of his misdemeanor convictions based on the State’s failure to prove that he was represented or waived his right to representation.  Roberts argued that because his challenge came on direct appeal, and not on a later appeal, the State still had the burden to prove the disputed portions of his criminal history.

Discussion: K.S.A. § 21-6814 provides a burden shifting test for proving prior criminal history.  The State meets its initial burden by providing a summary of the offender’s criminal history prepared for the court.  If the defendant gives written notice and the exact nature of an error at or before the initial sentencing hearing, the State must prove any disputed portions of the criminal history report.  If the defendant does not do so, but later challenges their prior convictions, the burden is on the defendant to prove the disputed portions of the criminal history report.  

Roberts did not challenge his prior convictions at the initial sentencing, but did raise a challenge on direct appeal.  Since, however, Roberts’s challenge was not at his initial sentencing, the burden shifting of § 21-6814(c) required him—and not the State—to prove the disputed portions.  Therefore, constitutional challenges to criminal history not made at or before initial sentencing hearings, even those raised on direct appeal, shift the burden to the defendant to prove any disputes.

Key Authorities:

Kan. Stat. Ann. § 21-6814 (2020)  (explaining the process for establishing criminal history, challenging criminal history, and the burden shifting when a challenge is made).

Kan. Stat. Ann. § 21-6811(a) (2017) (explaining the process for calculating criminal history, including the fact that three prior misdemeanors are calculated as one prior person felony).

State v. Roberts, No. 121,682 (Kan. Nov. 19, 2021).

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