                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,349

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                       JIMMY DUANE SUTTLE,
                                            Appellant.


                                   MEMORANDUM OPINION

        Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed May 29, 2020.
Affirmed.


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


        Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before POWELL, P.J., GARDNER, J. and WALKER, S.J.


        PER CURIAM: As part of a plea agreement with the State, Jimmy Duane Suttle
pled guilty to voluntary manslaughter and was given a departure sentence of 165 months
in prison. He now appeals his sentence, arguing the revised Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq., which requires the use of a
defendant's criminal history to calculate such defendant's criminal history score, requires
prohibited judicial fact-finding to establish the existence of such prior convictions,
contrary to section 5 of the Kansas Constitution Bill of Rights. But because we agree with




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another panel of our court which recently decided this exact issue contrary to Suttle's
position, we reject Suttle's arguments and affirm.


  DOES THE SENTENCING COURT'S USE OF JUDICIAL FINDINGS OF PRIOR CONVICTIONS
          VIOLATE SECTION 5 OF THE KANSAS CONSTITUTION BILL OF RIGHTS?


       On February 5, 2019, Suttle pled guilty to voluntary manslaughter in exchange for
dismissal of the remaining charges of robbery, criminal threat, and criminal possession of
a weapon. On May 21, 2019, the district court granted Suttle a downward durational
departure and sentenced him to 165 months' imprisonment with 36 months' postrelease
supervision.


       Suttle now appeals his sentence and argues for the first time that the KSGA's use
of judicial findings to establish his prior convictions for criminal history purposes is
unconstitutional under section 5 of the Kansas Constitution Bill of Rights. While
constitutional claims typically cannot be raised for the first time on appeal, we agree with
Suttle that we may consider the merits of his constitutional challenge because it is
necessary to prevent the denial of a fundamental right. See State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014). A constitutional challenge to the KSGA involves a
question of law subject to unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781
(2002).


       In calculating a defendant's presumptive sentence, the severity level of the
defendant's crime and the defendant's criminal history score are used. K.S.A. 2019 Supp.
21-6804. A defendant's criminal history score is calculated by tabulating the defendant's
prior convictions, if any, and then scoring each prior conviction as a person or nonperson
crime and as a felony or misdemeanor. K.S.A. 2019 Supp. 21-6810. This criminal history
score is determined by the sentencing court, not a jury, typically by relying on a
presentence investigation report. K.S.A. 2019 Supp. 21-6814(a). A defendant's sentence


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for a particular crime may vary greatly depending on the defendant's criminal history
score. See K.S.A. 2019 Supp. 21-6804(a).


       Section 5 of the Kansas Constitution Bill of Rights guarantees the right to a jury
trial: "The right of trial by jury shall be inviolate." Kan. Const. Bill of Rights, § 5. The
right to a jury trial is a basic and fundamental right. State v. Love, 305 Kan. 716, 734, 387
P.3d 820 (2017). "'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.
Seizing on this rule, Suttle argues that the common law required a defendant's criminal
history be proven to a jury at the time the Kansas Constitution came into existence and,
thus, the KSGA—which allows judicial findings of criminal history—is unconstitutional
under section 5.


       Another panel of our court recently addressed this issue. In State v. Albano, No.
120,767, 2020 WL 1814326 (Kan. App. 2020), the defendant challenged the KSGA's use
of judicial findings of prior convictions. The panel rejected Albano's section 5 argument
for two reasons. First, Albano provided no authority to support that section 5 provides
greater protection than the federal jury trial right, which does not require a jury to
determine prior convictions. 2020 WL 1814326, at *6; see also State v. Valentine, No.
119,164, 2019 WL 2306626, at *6 (Kan. App.) (unpublished opinion) (rejecting same
challenge to KSGA and finding appellant failed to show section 5 provided greater
protection than federal jury trial right), rev. denied 310 Kan. 1070 (2019). Second, the
Albano panel found her argument failed under a section 5 analysis. Albano, 2020 WL
1814326, at *11.


       The Albano panel explained that under a section 5 analysis:




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       "[T]he court engages 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?'


               "Under the first prong of the analysis, a criminal prosecution is the type of case
       in which a defendant is entitled to a jury trial as a matter of right. But in addressing the
       second question, the jury trial right in section 5 '"applies no further than to give the right
       of such trial upon issues of fact so tried at common law."' [Citations omitted.]" 2020 WL
       1814326, at *8.


       The panel then examined the authorities Albano relied on to support her
contention that at common law a jury had to find prior convictions. The Albano panel
found the authorities cited did not show there was a common law right to have a jury find
prior convictions. The panel explained the "authorities suggest that at best there was a
historical split on whether prior convictions must be proven to a jury. . . . Neither side
definitively identifies an established common law rule about who needed to make [prior
conviction] findings." 2020 WL 1814326, at *10.


       The Albano panel then examined Kansas caselaw and found that early in our
state's history, the Kansas Supreme Court recognized the split of authorities on whether
prior convictions must be proven to a jury and concluded: "'In this state it is no concern
of the jury what the penalty for a crime may be, and it is just as well that the jurors' minds
should not be diverted from the question of defendant's innocence or guilt by facts
concerning defendant's prior convictions of other felonies.' [State v. Woodman, 127 Kan.
166, 172, 272 P. 132 (1928)]." 2020 WL 1814326, at *11. The Albano panel also cited
Levell v. Simpson, 142 Kan. 892, 894, 52 P.2d 372 (1935), where the Kansas Supreme
Court stated that "'[the defendant] had no such privilege under Kansas law'" when the
defendant argued he had a right under the state and federal Constitutions to have a jury
determine whether he had prior convictions. 2020 WL 1814326, at *11. Based on this
authority, the Albano panel concluded Albano's argument failed under a section 5


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analysis because she did not establish there was a common law right to have a jury
determine prior convictions and Kansas has always held a defendant does not have a state
constitutional right to have a jury determine prior convictions. 2020 WL 1814326, at *11.


       Suttle presents to us the exact same argument and authorities as Albano and
concedes the Albano panel rejected the same section 5 challenge to the KSGA. However,
he provides no additional authority or argument that would undermine the Albano panel's
analysis on this issue. We find the Albano panel's reasoning persuasive and are thus
unpersuaded by Suttle's arguments because section 5 does not prohibit the KSGA's use of
judicial fact-finding to establish a defendant's criminal history.


       Affirmed.




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