State v. Albano: Revisiting the Right to Have a Jury Consider Sentence-Enhancing Prior Convictions

Author: Dahnika Short, Staff Editor 

State v. Albano, No. 120,767 (Kan. May 28, 2021)

Issue: Does Section 5 of the Kansas Constitution Bill of Rights guarantee the right to have a jury determine the existence of sentence-enhancing prior convictions under the Kansas Sentencing Guidelines Act (KSGA)?

Answer: No.  There was no similar common law right when the Kansas Constitution was adopted in 1859.

Facts: Albano appealed her 101-month sentence, which was within the presumptive sentencing range based on her criminal history score and conviction’s severity level.  Albano challenged the KSGA’s constitutionality, which appellate courts have jurisdiction to review, rather than her individual sentence.

Under Kan. Stat. Ann. Supp. 21-6814(a), the sentencing judge determined Albano’s criminal history score by a preponderance of the evidence. Albano argued this determination violated Section 5 because, when the Kansas Constitution was adopted, common law required a jury to find a prior conviction existed beyond a reasonable doubt to increase the penalty for a crime.

Discussion: KSGA’s sentencing scheme is a grid which provides increasingly severe presumptive sentences based on current crime’s severity (vertical axis) and the defendant’s criminal history (horizontal axis).  The higher the criminal history score, the higher the presumptive sentence.  The sentencing court must generally impose a sentence within the sentencing range based on these two factors. 

The Kansas Supreme Court looked to historical context in determining whether sentence-enhancing prior convictions must be proven to a jury because both the structure and language of Section 5 were ambiguous.  Section 5 protections are limited to roles traditionally performed by juries–issues of fact and the guilt/innocence phase of trial.  Those roles left to the court—issues of law and sentencing—are outside the purview of Section 5 protections.  These separate roles of the court and jury are firmly entrenched.  The court relied on older decisions which reflected common law at the time the Kansas Constitution was adopted.

Key Authorities:

State v. Love, 387 P.3d 820, 833 (Kan. 2017) (stating that Section 5 preserves the jury trial right as it historically existed when the Kansas Constitution came into existence).

State v. Ivory, 41 P.3d 781 (Kan. 2002) (holding that KSGA does not violate the Sixth and Fourteenth Amendments to the United States Constitution).

Levell v. Simpson, 52 P.2d 372 (Kan. 1935) (holding defendant had no right under the Kansas Constitution to have his prior convictions proven to a jury).

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