                           NOT DESIGNATED FOR PUBLICATION

                                               No. 121,476

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          TIMOTHY HOLLON,
                                             Appellant.

                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed July 10, 2020.
Affirmed.


        Kasper Schirer, of Kansas Appellate Defender Office, for appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before WARNER, P.J., MALONE and BRUNS, JJ.


        PER CURIAM: Timothy Hollon appeals the sentence he received as a result of his
convictions for attempted robbery and aggravated assault. He claims the district court's
reliance on his previous criminal convictions to determine his sentence under the Kansas
Sentencing Guidelines Act violated section 5 of the Kansas Constitution Bill of Rights.
We disagree with Hollon's constitutional argument and affirm.




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                        FACTUAL AND PROCEDURAL BACKGROUND

       Hollon pleaded no contest to attempted robbery and aggravated assault in
Sedgwick County District Court. In Kansas, sentences for most felony convictions are
determined using the Kansas sentencing guidelines. K.S.A. 2019 Supp. 21-6801 et seq.
These guidelines calculate a person's presumptive sentencing range and disposition based
on a combination of the severity level of the current offense and the person's criminal
history. See K.S.A. 2019 Supp. 21-6804(a). The district court found that Hollon's
criminal-history category was A because he had previously committed three or more
person felonies. Hollon orally confirmed this history at the sentencing hearing. The court
then sentenced Hollon to 32 months' imprisonment for the attempted-robbery conviction
and 12 months' imprisonment for the aggravated assault—both mid-range terms in the
applicable boxes under the Kansas sentencing guidelines. The court ran these sentences
consecutively for a controlling term of 44 months' imprisonment and 12 months'
postrelease supervision.


                                         DISCUSSION

       The right to trial by jury is "a basic and fundamental feature of American
jurisprudence." Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995
(1965). Since the founding of our state, section 5 of the Kansas Constitution Bill of
Rights has stated the right to a jury trial is "inviolate." Kan. Const. Bill of Rights, § 5.
Hollon contends the district court's use of his previous convictions to determine his
sentence, without first requiring the State to prove his prior convictions to a jury, violated
this provision.


       Several panels of this court have recently rejected this argument. See State v.
Albano, 58 Kan. App. 2d 118, ___, 464 P.3d 332, 344 (2020), petition for rev. filed May
6, 2020; State v. Billoups, No. 120,040, 2020 WL 1969356, at *17-20 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed May 20, 2020; State v. Brown, No. 120,590,


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2020 WL 1897361, at *7-8 (Kan. App. 2020) (unpublished opinion), petition for rev.
filed May 18, 2020; State v. Haskell, No. 121,280, 2020 WL 1222941 (Kan. App. 2020)
(unpublished opinion); State v. Biurquez, No. 121,197, 2020 WL 288532 (Kan. App.
2020) (unpublished opinion); State v. Valentine, No. 119,164, 2019 WL 2306626 (Kan.
App.) (unpublished opinion), rev. denied 310 Kan. 1070 (2019). Although we are not
bound by these previous decisions, we agree with their analysis and reach the same
conclusion here.


       As a preliminary matter, appellate courts generally do not have jurisdiction to
review a presumptive sentence under the Kansas sentencing guidelines—like the sentence
Hollon received here. See K.S.A. 2019 Supp. 21-6820(c)(1); State v. Johnson, 286 Kan.
824, Syl. ¶ 6, 190 P.3d 207 (2008). And Hollon's failure to raise this issue before the
district court also would normally preclude appellate review. See State v. Cheffen, 297
Kan. 689, 698, 303 P.3d 1261 (2013). We choose to consider Hollon's constitutional
claim in this instance, however, because it is a purely legal challenge to the Kansas
sentencing framework and implicates his fundamental right to a trial by jury. See State v.
Love, 305 Kan. 716, 734, 387 P.3d 820 (2017); State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014); Johnson, 286 Kan. at 842. Our review over such questions is
unlimited. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).


       Section 5 of the Kansas Constitution Bill of Rights states that "[t]he right of trial
by jury shall be inviolate." Kan. Const. Bill of Rights, § 5. The Sixth Amendment to the
United States Constitution similarly provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed." U.S. Const. amend. VI; see
also U.S. Const. amend. VII (providing a right to a jury trial in civil cases).


       The United States Supreme Court has long rejected the argument Hollon now
raises under the federal Constitution, finding the Sixth Amendment does not prohibit a


                                              3
court from using a defendant's criminal history to enhance a presumptive punishment.
See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000); State v. Watkins, 306 Kan. 1093, 1094, 401 P.3d 607 (2017); State v. Johnson,
304 Kan. 924, 956, 376 P.3d 70 (2016); State v. Overman, 301 Kan. 704, 716-17, 348
P.3d 516 (2015); State v. Adams, 294 Kan. 171, 184-85, 273 P.3d 718 (2012); State v.
Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002) (rejecting arguments that this practice
violates the United States Constitution). Recognizing this adverse precedent, Hollon
asserts his claim under the Kansas Constitution, contending the jury-trial right under
section 5 provides a broader protection than its federal counterpart.


       Our constitutional analysis begins with the recognition that a challenged statutory
framework—like the Kansas sentencing guidelines—"comes before the court cloaked in
a presumption of constitutionality." Leiker v. Gafford, 245 Kan. 325, 364, 778 P.2d 823
(1989). The party asserting a constitutional claim must prove the law clearly violates the
constitution. 245 Kan. at 364. In the context of this case, that means Hollon must prove
(1) that section 5 of the Kansas Constitution Bill of Rights provides different protections
from the Sixth Amendment and (2) that the criminal-history provisions of the sentencing
guidelines violate that state-law right.


       It is true, as Hollon points out, that there are textual differences between the
Kansas and federal jury-trial provisions. And it is also true that Kansas courts may
construe Kansas constitutional provisions independently from their federal counterparts.
See generally Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019)
(construing section 1 of the Kansas Constitution Bill of Rights as providing different
protections from the privacy protections under the United States Constitution). But
Kansas courts have long recognized such a practice is the exception to the rule. Instead,
courts have traditionally found the rights provided by our state charter to be coextensive
with federal constitutional protections, "notwithstanding any textual, historical, or



                                              4
jurisprudential differences." State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164
(2013).


       For this reason, our Kansas Supreme Court has indicated that anyone advocating a
different reading of a Kansas constitutional provision from its federal counterpart must
"explain why [Kansas courts] should depart from [their] long history of coextensive
analysis of rights under the two constitutions." State v. Boysaw, 309 Kan. 526, 538, 439
P.3d 909 (2019). Thus, Hollon must articulate something in "the history of the Kansas
Constitution or in our caselaw that would suggest a different analytic framework" should
apply for the jury-trial right. 309 Kan. at 536.


       Hollon does not make this required showing. Instead, he argues that Kansas should
extend the rationale articulated in Justice Thomas' concurrence in Apprendi, which cited
cases from other states predating Kansas statehood that required evidence of prior
convictions to be presented to a jury. See Apprendi, 530 U.S. at 501-09 (Thomas, J.,
concurring).


       We do not find this argument compelling for a number of reasons. In particular,
we find no support for Hollon's claim that a person's criminal history was a fact tried to a
jury when the Kansas Constitution was adopted. And more importantly, the Kansas
Supreme Court has consistently treated the jury-trial right under the Kansas Constitution
as coextensive with its federal counterpart, and Hollon fails to apprise us of a reason we
can or should depart from this precedent.


       "'Section 5 preserves the jury trial right as it historically existed at common law
when our state's constitution came into existence.'" Love, 305 Kan. at 734. When
considering a section 5 challenge, we engage in a two-part analysis, asking: (1) "In what
types of cases is a party entitled to a jury trial as a matter of right?"; and (2) "when such a
right exists, what does the right protect?" 305 Kan. at 735. The first prong of this analysis


                                               5
is already answered, as a defendant in a criminal case is entitled to a jury trial as a matter
of right. 305 Kan. at 736. Turning to the second prong, the jury-trial right provided in
section 5 "'applies no further than to give the right of such trial upon issues of fact so
tried at common law.'" 305 Kan. at 735.


       In Albano, 464 P.3d at 342-44, this court examined the same argument Hollon
raises regarding Justice Thomas' concurrence in Apprendi and concluded it was not
supported by Kansas history or precedent. Albano found that the cases cited by Justice
Thomas in his concurrence (and now relied on by Hollon) failed to demonstrate a
common-law right for a jury to determine a defendant's criminal history. 464 P.3d at 342-
43. The panel also noted that the United States Supreme Court's long acceptance of
recidivist laws cuts against the existence of a common-law right to have a jury determine
criminal history:


       "The United States Supreme Court has continually recognized that allowing a judge to
       consider prior convictions at sentencing 'is a traditional, if not the most traditional, basis
       for a sentencing court's increasing an offender's sentence.' Almendarez-Torres v. United
       States, 523 U.S. 224, 243, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In fact, the Court
       acknowledged that recidivist laws 'have a long tradition in this country . . . dat[ing] back
       to colonial times' and 'a charge under a recidivism statute does not state a separate
       offense, but goes to punishment only.' Parke v. Raley, 506 U.S. 20, 26-27, 113 S. Ct. 517,
       121 L. Ed. 2d 391 (1992). Thus, there is authority supporting the converse of Albano's
       proposition: that judges historically could find prior convictions because prior
       convictions were not a separate offense that needed to be proved to a jury." Albano, 464
       P.3d at 343.


       And perhaps most telling for purposes of our analysis, the Kansas Supreme Court
declined 85 years ago to hold that the Kansas Constitution requires a jury to determine
criminal history. See 464 P.3d at 339-44. In Levell v. Simpson, 142 Kan. 892, 52 P.2d 372
(1935), the defendant challenged his sentence, arguing he had a right under the state and
federal constitutions to have a jury determine whether he had prior convictions. The


                                                      6
Kansas Supreme Court definitively stated the defendant "had no such privilege under
Kansas law." 142 Kan. at 894.


       Other Kansas Supreme Court cases similarly indicate section 5 provides the same
protection as the federal jury-trial right. Indeed, section 10 of the Kansas Constitution—
which provides multiple protections for a defendant in a criminal case, including the right
to a trial by impartial jury—has been consistently found to be coextensive with the Sixth
Amendment. See State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 (2014) ("We have not
previously analyzed our state constitutional language differently from the federal
provision."), rev'd and remanded on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L.
Ed. 2d 535 (2016); In re Clancy, Petitioner, 112 Kan. 247, 249, 210 P. 487 (1922).
Because "section 10 encompasses section 5's jury trial right and section 10 provides the
same protection as the Sixth Amendment, it is a reasonable inference that section 5's jury
trial right is also interpreted the same as the Sixth Amendment to the United States
Constitution." Albano, 464 P.3d at 341.


       Hollon has not articulated any other explanation for the existence of such a right at
common law. Nor has he explained why he believes the Kansas Supreme Court would
depart from its controlling interpretation of the Kansas jury-trial right. Accord State v.
Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (Kansas Court of Appeals is duty-
bound to follow Kansas Supreme Court precedent). We thus see no reason to disagree
with Albano's conclusion that "Kansas' position has always been that, under the state
constitution, a defendant does not have a right to have a jury determine prior convictions
for sentencing purposes." 464 P.3d at 344.


       Affirmed.




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