                           NOT DESIGNATED FOR PUBLICATION

                                             Nos. 121,407
                                                  121,408

                    COURT OF APPEALS OF THE STATE OF KANSAS

                                         STATE OF KANSAS,
                                             Appellee,

                                                   and

                                           JOSE L. DELEON,
                                              Appellant.


                                   MEMORANDUM OPINION

        Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed August 21, 2020.
Affirmed.


        Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.


        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before GREEN, P.J., ATCHESON and GARDNER, JJ.


        PER CURIAM: Jose L. Deleon pleaded guilty to criminal possession of a firearm,
attempted robbery, and criminal discharge of a firearm. Because of his prior convictions,
the district court scored Deleon's criminal history an A and sentenced him to 122 months
in prison. Deleon appeals, contending the Kansas Sentencing Guidelines Act's (KSGA)
criminal history scheme is unconstitutional under section 5 of the Kansas Constitution
Bill of Rights. He also argues the KSGA's use of a defendant's criminal history is



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unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000). We find no error.


Factual and Procedural Background


         In November 2017, Jose L. Deleon pleaded guilty to criminal possession of a
weapon by a felon. Before the plea hearing, Deleon signed a Defendant's
Acknowledgement of Rights and Entry of Plea. In that plea agreement, he acknowledged
the following:


            • He would be giving up his right to a jury trial;
            • his sentence was solely within the judge's control;
            • the district court would determine his presumptive sentence by combining
               the severity level of his current crimes of conviction and his criminal
               history;
            • he could appeal his criminal history score; and
            • he could appeal any crime severity level determination that affected his
               sentence.


During the hearing, Deleon confirmed that he understood the Acknowledgement of
Rights and signed it. He also confirmed again that he was giving up his right to a jury
trial.


         In March 2019, Deleon pleaded guilty to attempted aggravated robbery and
criminal discharge of a firearm. He signed another Acknowledgement of Rights, which
contained the same language as the previous Acknowledgment. At the plea hearing,
Deleon also swore and confirmed he understood this Acknowledgment and affirmed he
was giving up his right to a jury trial.


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         The district court sentenced Deleon in both cases in May 2019. The district court
found, and Deleon agreed, that his criminal history score was an A in both cases. The
district court also explained to Deleon how the sentencing grid under the KSGA applied
to his situation. The district court sentenced Deleon in the first case to 23 months in
prison with 12 months of postrelease supervision for criminal possession of a firearm. In
the second case, the district court sentenced Deleon to 122 months in prison with 24
months of postrelease supervision for attempted aggravated robbery, and to a lesser
concurrent sentence for his criminal discharge of a firearm. The district court ordered the
sentences in both cases to run concurrently.


         Deleon timely appeals both cases, which we consolidated on appeal.


Did the District Court Violate Section 5 of the Kansas Constitution Bill of Rights?


         Deleon first argues that the KSGA's mandate to include prior criminal convictions
in calculating a defendant's sentence is unconstitutional because it violates his right to a
jury trial under section 5 of the Kansas Constitution Bill of Rights. That section states,
"[t]he right of trial by jury shall be inviolate." He contends this section precludes the
district court from using prior convictions to raise the permissive punishment for his
current crime of conviction, unless the State first presents evidence of the prior
conviction to the jury and the jury finds the fact of that conviction beyond a reasonable
doubt.


         Deleon asserts this preclusion existed in American common law at the time the
Kansas Constitution was adopted so it should be read into our Bill of Rights. "'Section 5
preserves the jury trial right as it historically existed at common law when our state's
constitution came into existence.'" State v. Love, 305 Kan. 716, 734, 387 P.3d 820 (2017).
Deleon argues that the common law required the State to prove a defendant's criminal
history to a jury when the Kansas Constitution began, so the KSGA—which allows a
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judge to find criminal history—is unconstitutional under section 5. He asks this court to
vacate his sentence and remand.


       Preservation


       The State first responds that Deleon's argument is barred because K.S.A. 2019
Supp. 21-6820(c)(1) precludes appellate review of a presumptive sentence under the
KSGA, and Deleon got a presumptive sentence. But Deleon's challenge is to the district
court's authority to impose a presumptive sentence. We can consider a challenge to the
facial constitutionality of a sentencing scheme. See State v. Morningstar, 299 Kan. 1236,
1240, 329 P.3d 1093 (2014); State v. Huerta, 291 Kan. 831, 839-40, 247 P.3d 1043
(2011). Deleon raises a facial challenge here, so he is not barred by K.S.A. 2019 Supp.
21-6820(c)(1).


       Next, the State contends that Deleon did not properly preserve this argument.
Under Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34), an appellant must
point to the specific location in the record where the appellant raised the issue being
appealed and where the court ruled on that issue. Generally, if an issue was not raised in
the trial court, it cannot be raised on appeal. State v. Williams, 298 Kan. 1075, 1085, 319
P.3d 528 (2014). This rule applies to alleged constitutional violations as well. State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). The rationale behind this rule is
simple: A trial court cannot wrongly decide an issue never presented to it. See State v.
Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).


       Yet we have recognized three exceptions to this rule:


       "'[A]ppellate courts may consider constitutional issues raised for the first time on appeal
       if the issue falls within one of three recognized exceptions: (1) The newly asserted claim
       involves only a question of law arising on proved or admitted facts and is determinative


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       of the case; (2) consideration of the claim is necessary to serve the ends of justice or to
       prevent the denial of fundamental rights; or (3) the district court is right for the wrong
       reason.' [Citations omitted.]" Godfrey, 301 Kan. at 1043.


To avoid application of the general rule, the party asserting an issue for the first time on
appeal must invoke an exception and explain why the issue is properly before the court.
301 Kan. at 1043; Rule 6.02(a)(5).


       Deleon concedes that he did not raise this issue in the district court. Yet he asserts
the first two exceptions above apply. We agree that his claim involves only a question of
law and implicates his fundamental right to a trial by jury. See Love, 305 Kan. at 735.
And we choose to reach the merits here. See State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459
P.3d 165 (2020) (finding that the decision to review an unpreserved claim under an
exception is a prudential one, so even when an exception supports a decision to review a
new claim, we do not have to do so).


       Analysis


       Deleon contends that it is unconstitutional for a district court to use his prior
convictions to elevate the permissive punishment for the current crime of conviction,
without proving those prior convictions to a jury. The constitutionality of a sentencing
statute is a question of law subject to unlimited appellate review. State v. Moore, 302
Kan. 685, 708, 357 P.3d 275 (2015).


       Deleon concedes that his argument fails under the United States Constitution. The
United States Supreme Court has held that the Sixth Amendment does not prohibit a
court from using a defendant's criminal history to enhance a presumptive punishment.
Apprendi, 530 U.S. at 490. Similarly, the Kansas Supreme Court has followed suit,
repeatedly holding that the Sixth Amendment does not prohibit a court from using a

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defendant's criminal history to enhance a presumptive punishment. See 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).


       So Deleon asserts the same right under the Kansas Constitution, claiming that the
jury-trial right under our section 5 provides broader protection than the Sixth
Amendment, its federal counterpart. But our appellate courts have repeatedly rejected this
argument as well. See State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000); State v.
Albano, 58 Kan. App. 2d 117, 133-34, 464 P.3d 332 (2020), petition for rev. filed May 6,
2020; State v. Smith, No. 121,267, 2020 WL 3022874, at *3 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed June 29, 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, 2020 WL 1897361, at *7-8
(Kan. App. 2020) (unpublished opinion), petition for rev. filed May 18, 2020; State v.
Valentine, No. 119,164, 2019 WL 2306626, at *6 (Kan. App.) (unpublished opinion),
rev. denied 310 Kan. 1070 (2019). We believe those cases reached the correct result.


       True, Kansas courts may construe Kansas constitutional provisions independently
from their federal counterparts, but such a practice is the exception to the rule. Our courts
have traditionally found the rights provided by our state charter to be coextensive with
federal constitutional protections, "notwithstanding any textual, historical, or
jurisprudential differences." State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164
(2013). So a person who contends that the Kansas Constitution is broader than its federal
counterpart must explain why the history of the Kansas Constitution or our caselaw
shows that we should depart from the "long history of coextensive analysis of rights
under the two constitutions." State v. Boysaw, 309 Kan. 526, 538, 439 P.3d 909 (2019).
The burden is not, as Deleon contends, on the appellate court to explain why the
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"inviolate" common-law right to a jury trial does not extend to penalty-enhancing prior
conviction findings.


       Deleon fails to meet his burden here. Instead, Deleon's argument is identical to the
arguments this court rejected in Albano. The Albano panel correctly found no authority to
support the assertion that section 5 provides greater protection than the federal jury-trial
right, which does not require a jury to determine prior convictions. 58 Kan. App. 2d at
127.


       We agree that we should not interpret section 5 more broadly than its federal
counterpart. The general rule in Kansas is that we interpret the Kansas Constitution
similarly to its federal counterpart even though the language may differ. Lawson, 296
Kan. at 1091 ("But, at least for the past half-century, this court has generally adopted the
United States Supreme Court's interpretation of corresponding federal constitutional
provisions as the meaning of the Kansas Constitution, notwithstanding any textual,
historical, or jurisprudential differences."). Caselaw of this court consistently interprets
section 5 similarly to the Sixth Amendment to the United States Constitution. See, e.g.,
Albano, 58 Kan. App. 2d at 128-29.


       And Kansas Supreme Court cases confirm that section 5 provides the same
protection as the federal jury-trial right. The Kansas Supreme Court has consistently
found 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—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 136 S. Ct. 633
(2016); In re Clancy, 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
                                              7
interpreted the same as the Sixth Amendment to the United States Constitution." Albano,
58 Kan. App. 2d at 129; see Levell v. Simpson, 142 Kan. 892, 894, 52 P.2d 372 (1935)
(finding a defendant who claimed a right under state and federal constitutions to have a
jury determine his prior convictions "had no such privilege under Kansas law").


       Deleon provides no other authority or argument to persuade us that section 5 of the
Kansas Constitution provides greater protection than the Sixth Amendment, which does
not require a jury to determine prior convictions. He thus fails to explain why the history
of the Kansas Constitution or our caselaw shows that we should depart from the "long
history of coextensive analysis of rights under the two constitutions." Boysaw, 309 Kan.
at 538. We thus hold that the KSGA is not unconstitutional under section 5 of the Kansas
Constitution Bill of Rights.


Did the District Court Violate the Sixth Amendment to the United States Constitution by
Using Deleon's Prior Convictions to Determine His Criminal History Score?


       Deleon next argues that the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution by using his prior convictions
to increase his sentence without requiring the State to prove his prior convictions beyond
a reasonable doubt to a jury.


       Deleon's argument relies on Apprendi, 530 U.S. 466. But he acknowledges that
our Supreme Court rejected this argument in Ivory, 273 Kan. at 45-48. This court is duty-
bound to follow Kansas Supreme Court precedent unless the court has indicated it is
departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d
903 (2017). We find no indication of departure, as our Supreme Court has repeatedly
confirmed Ivory's holding. See State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795
(2014); Adams, 294 Kan. at 185. The district court's use of Deleon's prior convictions did


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not violate his rights under the Sixth or the Fourteenth Amendments to the United States
Constitution.


      Affirmed.




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