                         NOT DESIGNATED FOR PUBLICATION

                                            Nos. 121,662
                                                 121,679

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                   v.

                                      MYLES ASHLEY DAVIS,
                                          Appellant.

                                  MEMORANDUM OPINION

       Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 2, 2020.
Affirmed.


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


       Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.


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


       PER CURIAM: Myles Davis appeals the sentence he received as a result of his
convictions for felony stalking. 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 Davis'
constitutional argument and affirm.


                          FACTUAL AND PROCEDURAL BACKGROUND

       Davis pleaded no contest to two counts of felony stalking in separate cases in
Saline County District Court, which have been consolidated for appeal. In Kansas,

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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 Davis' criminal-history category was B because he
had previously committed two person felonies. Davis did not object to this classification.
The court then sentenced Davis to 14 months' imprisonment—the middle number in the
applicable sentencing grid-box—on each count, with those sentences running
consecutively for a controlling term of 28 months' imprisonment.


                                         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.
Davis 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.
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. Haskell, No. 121,280, 2020 WL 1222941 (Kan. App. 2020) (unpublished
opinion); State v. Albano, No. 120,767, 2020 WL 1814326, at *6-11 (Kan. App. 2020),
petition for rev. filed May 6, 2020; State v. Biurquez, No. 121,197, 2020 WL 288532
(Kan. App. 2020) (unpublished opinion); State v. Valentine, No. 119,164, 2019 WL
2306626, at *6 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1070 (2019).



                                               2
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
Davis received here. K.S.A. 2019 Supp. 21-6820(c)(1); State v. Johnson, 286 Kan. 824,
Syl. ¶ 6, 190 P.3d 207 (2008). And Davis' 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 Davis' 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 Right 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 Davis now raises
under the federal Constitution, finding the Sixth Amendment does not prohibit a 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


                                              3
Kan. 44, 45-48, 41 P.3d 781 (2002) (rejecting arguments that this practice violates the
United States Constitution). Recognizing this adverse precedent, Davis 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. See 245 Kan. at 364. In the context of this case, that means Davis 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 Davis 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, Syl. ¶¶ 3, 6, 440 P.3d 461
(2019) (construing section 1 of the Kansas Constitution Bill of Rights as providing
different protection 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 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


                                              4
analysis of rights under the two constitutions." State v. Boysaw, 309 Kan. 526, 538, 439
P.3d 909 (2019). Thus, Davis 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. See 309 Kan. at 536.


       Davis 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 Davis' 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 Davis 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
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.




                                               5
       In Albano, 2020 WL 1814326, at *8-11, this court examined the same argument
Davis raises regarding Justice Thomas' concurrence 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 Davis) failed to demonstrate a common-law right
for a jury to determine a defendant's criminal history. 2020 WL 1814326, at *9-10. 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, 2020
       WL 1814326, at *10.


       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 Albano, 2020 WL 1814326, at *6-11. 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 Kansas Supreme Court definitively stated the defendant "had no
such privilege under Kansas law." 142 Kan. at 894.




                                                      6
       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, 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,
2020 WL 1814326, at *8.


       Davis 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." Albano, 2020 WL 1814326, at *11.


       Affirmed.




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