                           NOT DESIGNATED FOR PUBLICATION

                                            No. 121,038

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                   STEPHANIE ROSE RUMOLD,
                                         Appellant.


                                  MEMORANDUM OPINION

        Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed August 14, 2020.
Affirmed.


        Heather Cessna and Kasper Schirer, of Kansas Appellate Defender Office, for appellant.


        Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.


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


        PER CURIAM: After Stephanie Rose Rumold waived her right to a jury trial, the
district court found her guilty in 2018 of burglary of a dwelling and misdemeanor theft.
Because of her prior convictions for aggravated burglary and conspiracy to commit
aggravated robbery, the district court scored Rumold's criminal history score as a B and
sentenced her to 29 months in prison.


        On appeal, Rumold first challenges the voluntariness of her Miranda waiver. Yet
under a totality of the circumstances test, we affirm the district court's denial of Rumold's

                                                  1
suppression motion. Next, Rumold argues her sentence was illegal because the district
court should have classified her Kansas 2010 aggravated burglary conviction as a
nonperson felony because that crime is broader than the Kansas 2018 aggravated burglary
statute. We disagree, finding the identical-or-narrower rule inapplicable. Finally, Rumold
contends the Kansas Sentencing Guidelines Act's (KSGA) criminal history scheme is
unconstitutional under section 5 of the Kansas Constitution Bill of Rights. But Rumold
fails to show that the protections of section 5 are broader than its federal counterpart and
that a common-law rule existed at the time of adopting the Kansas Constitution that
would preclude the KSGA's scheme.


Factual and Procedural Background


       The State charged Rumold with burglary of a dwelling and misdemeanor theft,
committed August 25, 2018. Before trial, Rumold moved to suppress incriminating
statements. Rumold admitted to the arresting officers that she had been inside the
burglarized residence and had taken personal property. But she complained to the district
court that the officers coerced those statements and obtained them without a valid
Miranda warning.


       The district court held a hearing on the motion. Officer Nathan Rankin was the
sole witness, and he presented the video from his body camera. After responding to a
report of a burglary, Rankin and his fellow officers believed that a suspect was hiding
nearby in a grouping of trees. That suspect turn out to be Rumold. The body camera
video showed Rankin and another officer, tasers drawn, yelling at Rumold to come out
from the trees and lie on the ground. When she did, several officers helped handcuff her
arms behind her back. The other officers then left Rankin alone with Rumold while they
searched the trees. Rankin testified that this initial interaction was intense, but the
situation deescalated once they secured Rumold.


                                               2
       While Rumold sat on the ground, Rankin asked her to identify herself. She replied
her name was "Stephanie Gomez," her birthday was December 1, 1991, and she did not
have identification. Rankin later learned that neither that name nor that birthdate was
correct.


       The video shows that when Rankin asked Rumold to stand, she told him that she
was not trying to resist them but was only scared. Rankin reproached her for entering
others' houses and, while walking, recited her Miranda rights. Rankin asked Rumold if
she understood these rights, but she did not respond, so Rankin asked again. The body
camera's audio did not pick up Rumold's response. But Rankin testified that she
responded, "yeah," and he believed she understood her rights. And the video records
Rankin reciting Rumold's Miranda rights to her. Similarly, Rankin's affidavit says, "I
read Stephanie her Miranda rights at approximately 1206 hours. Stephanie advised she
understood her rights and waived her right to have coun[sel] present."


       The video then shows Sergeant Dragonas approach and ask if Rumold had agreed
to talk. Rankin responded, "Yeah, she's talking." Dragonas questioned Rumold about her
part in the burglary and about her accomplice. Rumold admitted to being in the house and
taking paperwork and postcards. She also discussed with Dragonas what cooperation
would mean for her.


       An ambulance took Rumold to the hospital to treat her ankle injury. At the
hospital, Rumold gave Rankin more information about the burglary. During closing
arguments, the State conceded that if the initial Miranda warning were insufficient or
Rumold's statements at the scene were involuntary, then Rankin's questioning at the
hospital would also be inadmissible.




                                             3
       The district court denied Rumold's motion to suppress. It found that after the initial
contact, the situation quickly deescalated, and the police were not overly aggressive when
they handcuffed her. It stated also:


                "I think it's important to note that after she was cuffed they did ask some quick
       questions, her name. She had the wherewithal at that time to, as [the State] pointed out,
       give a false name. So that indicates to the Court that she wasn't so overcome by the high
       intensity situation or the stress of the situation that she wasn't thinking. She may not have
       been making good decisions, because it's never a good idea to lie to law enforcement, but
       she was working out a strategy of how she was going to deal with this situation.


                "Shortly after she was handcuffed, she was read her Miranda warnings. Although
       the video—or audio on the recording did not pick it up, the officer testified unequivocally
       that she responded she understood her Miranda warnings. That testimony is not
       controverted, other than by argument. There is no evidence to the contrary before the
       Court.


                "Counsel for the defendant argues a single alleged 'yeah' is not sufficient to show
       an understanding of the Miranda warnings. The Court is convinced that a single alleged
       'yeah,' whether recorded or not, coupled with the obvious cooperation of the individual
       making sure officers knew that she was interested in getting some benefit from her
       cooperation, show that she knew what her Miranda rights were and, in this Court's mind,
       effectively waived that right by cooperating.


                ....


                "I've heard no evidence here today that would cause me any reason to believe
       that Ms. Rumold had problems understanding any of the questions. There's nothing to
       indicate that she did not understand she had the right to refuse to answer any questions.


                "The Court finds the State has met its burden of proof in this case. The
       statements made by Ms. Rumold, while they were made in custody, they were voluntarily
       given after Miranda warnings. The motion to suppress is denied."


                                                     4
       After the motion hearing, Rumold waived her right to a jury trial and agreed to
submit the case to the judge on stipulated facts. Those facts included Rumold's
admissions to the police:


               "4. Defendant was questioned by law enforcement, and she admitted to having
       been inside the residence at 1028 Woodland Street; furthermore, she admitted to taking
       miscellaneous items of personal property from said residence."


The stipulations also included that a reporting party believed Rumold was the person he
had seen running from the residence. Based on the stipulated facts, the district court
found Rumold guilty as charged.


       The district court held a sentencing hearing in February 2019. The presentence
investigation report showed Rumold's criminal history score was a B based on a 2010
Lyon County aggravated burglary conviction and a 2010 Lyon County conspiracy to
commit aggravated robbery conviction. Rumold did not object to her criminal history
score. Based on this score, the district court sentenced Rumold to 29 months in prison
with 12 months of postrelease supervision.


       Rumold timely appeals.


Did the District Court Err in Denying Rumold's Motion to Suppress?


       Rumold first argues that she did not knowingly or voluntarily waive her Miranda
rights. Rumold asserts that the intensity of the situation, her fear of the officers, and the
video's failure to show that she understood her rights weigh against finding her waiver
voluntary. She asks us to remand for a new trial excluding her statements.




                                                  5
       Standard of Review

       Our standard of review for a district court's decision on a motion to suppress has
two components. First, we review the district court's factual findings to determine
whether they are supported by substantial competent evidence. State v. Parker, 311 Kan.
___, 459 P.3d 793, 796 (2020). Substantial competent evidence refers to legal and
relevant evidence that a reasonable person could accept as adequate to support a
conclusion. State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). In reviewing the
factual findings, we do not reweigh the evidence, assess the credibility of witnesses, or
resolve conflicting evidence. And, second, we review the ultimate legal conclusion using
a de novo standard. Parker, 459 P.3d at 796.


       Analysis

       We first determine whether substantial competent evidence supports the district
court's factual finding that Rumold responded "yeah" when Rankin asked her if she
understood her Miranda rights. Rumold contends the district court should have "seriously
question[ed]" Rankin's testimony because the body camera audio did not show or reflect
her aural response, and Rankin's affidavit portrayed a waiver "much clearer and more
explicit than occurred in real life." But on appeal we cannot reweigh the evidence, assess
the credibility of witnesses, or resolve conflicting evidence. See Parker, 459 P.3d at 796.
Rankin's testimony at trial was legal and relevant evidence that a reasonable person could
accept as adequate to support the district court's factual finding that Rumold responded
"yeah." Thus we accept the district court's finding.


       We next address the voluntariness of Rumold's consent. The Fifth Amendment to
the United States Constitution protects an individual's right against self-incrimination.
State v. Palacio, 309 Kan. 1075, 1081, 442 P.3d 466 (2019). This protection is
incorporated to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S.


                                             6
1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Persons interrogated by police while in
custody must be told of their Miranda rights, which include the right to remain silent. See
Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A court
must exclude statements made during a custodial interrogation unless the State shows it
used procedural safeguards—Miranda warnings—to secure the defendant's privilege
against self-incrimination. State v. Regelman, 309 Kan. 52, 59, 430 P.3d 946 (2018).


       It is undisputed that officers subjected Rumold to custodial interrogation. They
asked her about the burglary after they handcuffed and surrounded her. See Regelman,
309 Kan. at 59 (identifying factors to use in determining whether an interrogation is
investigative or custodial); State v. Warledo, 286 Kan. 927, 935-36, 190 P.3d 937 (2008)
(stating an interrogation refers to express questioning and its functional equivalent, which
means any words or actions that the police should know are reasonably likely to elicit an
incriminating response). So the sole issue is whether Rumold's actions were voluntary.


       A defendant may waive her Miranda rights and choose to speak with the officers.
Yet this waiver must be made knowingly, intelligently, and voluntarily. Parker, 459 P.3d
at 796. The State bears the burden to prove by a preponderance of the evidence the
validity of a waiver. State v. Mattox, 305 Kan. 1015, 1042, 390 P.3d 514 (2017). To
determine whether a defendant made such a waiver, we use a totality of the
circumstances test. 305 Kan. at 1042. Our Supreme Court has listed some nonexclusive
factors for us to consider when making this determination:


       "(1) the defendant's mental condition; (2) the manner and duration of the interrogation;
       (3) the defendant's ability to communicate with the outside world; (4) the defendant's age,
       intellect, and background; (5) the fairness of the officers in conducting the interrogation;
       and (6) the defendant's proficiency in the English language." 305 Kan. at 1042-43.


Another factor indicating voluntariness is when a defendant says that he or she
understands his or her rights and then answers questions. Parker, 459 P.3d at 796.
                                                    7
       Not all factors weigh equal in this balance:


               "'These factors are not to be weighed against one another with those favorable to
       a free and voluntary confession offsetting those tending to the contrary. Instead, the
       situation surrounding the giving of a confession may dissipate the import of an individual
       factor that might otherwise have a coercive effect. Even after analyzing such dilution, if
       any, a single factor or a combination of factors considered together may inevitably lead to
       a conclusion that under the totality of circumstances a suspect's will was overborne and
       the confession was not therefore a free and voluntary act.' [Citation omitted.]" Mattox,
       305 Kan. at 1043.


       We thus apply the totality of the circumstances test to see whether Rumold
voluntarily, knowingly, and intelligently waived her Miranda rights. First, although
Rumold contends she was afraid after being in an intense police encounter, nothing in the
record suggests that her mental condition was so diminished that she was "'unusually
susceptible'" to police questioning or that she was incapable of intelligently responding to
the officer's questions. See State v. William, 248 Kan. 389, 410, 807 P.2d 1292 (1991)
(stating, for the defendant's mental condition, the evidence did not show the defendant
was unusually susceptible to questioning or authority and that the defendant responded to
questioning); Ringel, Searches and Seizures Arrests and Confessions § 25:14 (2d ed.
2020) (characterizing mental condition as a matter of intelligence, intellectual disability,
or severely disturbed emotional state). In contrast, the video from the body camera
establishes that Rumold was competently able to respond in English to both Rankin's and
Dragonas' questions. During this time, Rumold gave a false name and birthdate. As the
district court noted, the fact that Rumold managed to work out a strategy, although a
deceptive one, about how to handle the situation, shows she could exercise her
intelligence and volition.


       Second, the officers' interaction with Rumold was neither coercive nor unfair.
Although the initial interaction was admittedly intense, the situation deescalated after the

                                                    8
officers handcuffed Rumold. She sat calmly on the ground while Rankin talked to her.
After Rankin recited the Miranda warnings, he asked Rumold twice if she understood
them. Rankin testified that she responded, "yeah," and he believed she understood her
rights. That testimony is uncontradicted. There is no requirement that officers follow a set
protocol to determine whether a defendant understands his or her rights. Parker, 459 P.3d
at 796-97. And Rumold cites no authority suggesting Rankin's actions were otherwise
coercive or unfair.


       Third, Rumold's reply, "yeah," and her ensuing responsiveness to Dragonas'
questions point toward her voluntarily waiving her Miranda rights. See 459 P.3d at 796
(stating an explicit statement that a defendant understands her rights and then answers
questions favors a voluntary waiver); State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849
(1971) (stating subsequent voluntary responses to inquiries after an initial Miranda
warning can create an effective waiver).


       Fourth, nothing in the record shows the officers limited Rumold's ability to
communicate with the outside world.


       Under the totality of the circumstances, we find that the State met its burden to
prove that Rumold voluntarily, intelligently, and knowingly waived her Miranda right to
remain silent. We thus affirm the district court's denial of the motion to suppress.


Is Rumold's Sentence Illegal?


       Rumold next argues that her sentence was illegal because the district court scored
her 2010 prior Kansas conviction for aggravated burglary as a person felony rather than a
nonperson felony, making her criminal history score incorrect. She asserts that the
identical-or-narrower test from State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018),
which we have applied only to out-of-state and pre-KSGA crimes, should also apply to

                                             9
prior in-state KSGA crimes. She then asserts that the elements of Kansas' aggravated
burglary statute have narrowed from 2010 to 2018. Using the Wetrich test to compare the
two Kansas aggravated battery statutes, she contends that the district court should have
scored her 2010 felony as a nonperson felony. Alternatively, Rumold contends that the
United States Constitution requires us to use the identical-or-narrower test and reach that
same result.


       In response, the State asserts that Wetrich does not apply because the Legislature
has included person/nonperson designations for in-state, KSGA criminal statutes. We
agree. Because the Legislature has designated both the 2010 and the 2018 statutes for
aggravated burglary as person crimes, using the Wetrich test to determine whether a prior
KSGA crime is or is not a person crime is unnecessary and unproductive.


       Standard of Review

       Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the KSGA. Interpretation of a statute is a question of law
over which we have unlimited review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251
(2015). Likewise, whether a sentence is illegal is a question of law over which we have
unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).


       Wetrich argument


       Wetrich created an identical-or-narrower test of comparability for out-of-state
prior crimes:


       "For an out-of-state conviction to be comparable to an offense under the Kansas criminal
       code, the elements of the out-of-state crime cannot be broader than the elements of the
       Kansas crime. In other words, the elements of the out-of-state crime must be identical to,


                                                   10
       or narrower than, the elements of the Kansas crime to which it is being referenced."
       Wetrich, 307 Kan. at 562.


       Recently, our Supreme Court extended Wetrich's identical-or-narrower test to prior
in-state crimes committed before 1993, the date the KSGA was enacted. State v.
Coleman, 311 Kan. 305, 309-10, 460 P.3d 368, 371-72 (2020). Coleman extended
Wetrich to Kansas crimes committed before 1993 because those crimes lacked a person
or nonperson designation.


       "For a Kansas crime committed before Kansas designated crimes as person or nonperson
       offenses to be deemed comparable to a current offense under the Kansas criminal code,
       within the meaning of K.S.A. 2018 Supp. 21-6810, the earlier crime's elements cannot be
       broader than the current crime's elements. In other words, the earlier crime's elements
       must be identical to, or narrower than, the elements of the crime to which it is being
       referenced." Coleman, 311 Kan. 305, Syl. ¶ 2.


       Rumold now asks us to expand Wetrich's test even further—to prior Kansas crimes
that do have a person or nonperson designation. Under Rumold's approach, a crime the
Legislature has designated a person crime may still be found to be a nonperson crime
when the elements of the prior crime were broader than the elements of the same crime at
the time of the current conviction. So even though the Legislature stated in 2010 that
"Aggravated burglary is a severity level 5, person felony," K.S.A. 2010 Supp. 21-3716,
and the Legislature stated in 2018 that "Aggravated burglary . . . is a . . . person felony,"
K.S.A. 2018 Supp. 21-5807(c)(2), Rumold thinks not.

       Rumold's Wetrich claim is nearly identical to one another panel of our court
recently rejected. In State v. Lyon, No. 120,993, 2020 WL 4250685, at *12 (Kan. App.
2020), the panel held:


       "when a conviction of a prior crime occurs post-implementation of the KSGA, as a matter
       of practical application, the classification of person or nonperson felony determined at the


                                                   11
       time of the new conviction will be the same as the classification of the prior crime on the
       date of its commission unless the Legislature has changed the classification of the crime,
       Keel, 302 Kan. at 573, or the statute has been ruled unconstitutional."


The Legislature has not changed the classification of Rumold's crime—aggravated
battery was a person crime in 2010 and remained a person crime in 2018. Nor has the
aggravated battery statute been ruled unconstitutional.


       Lyon reasoned as follows:


•      The plain language of the KSGA shows that Wetrich's identical-or-narrower test
       does not apply to post-KSGA convictions (Kansas convictions after 1993). For
       post-KSGA convictions, the Legislature set out person and nonperson
       classifications in the applicable Kansas criminal statute. In contrast, pre-KSGA
       and out-of-state convictions have no person or nonperson designation so courts
       must use a comparability test to determine how to classify the prior conviction.

•      The Legislature limited the comparability approach in K.S.A. 2017 Supp. 21-
       6810(d) and K.S.A. 2017 Supp. 21-6811(e)(3) to pre-KSGA offenses and out-of-
       state offenses. This shows the Legislature did not intend to apply the identical-or-
       narrower comparison approach to post-KSGA offenses.

•      Whether the 2010 aggravated burglary statute was repealed rather than amended
       matters not because the result would be the same either way. If the recodification
       and/or amendments of the aggravated burglary statute amounted to a repeal, the
       district court properly scored the prior conviction as a person felony because
       aggravated burglary was a person felony when Lyon committed that crime in
       2010. See K.S.A. 2017 Supp. 21-6810(d)(8) (stating, "Prior convictions of a crime
       defined by a statute that since has been repealed shall be scored using the
       classification assigned at the time of such conviction."). On the other hand, if the

                                                   12
       statute was merely recodified or amended and was not repealed, the prior crime
       was a person felony because all forms of aggravated burglary were a person felony
       in 2017 when Lyon committed his current crimes.


       We find Lyon to be well reasoned, and we adopt its rationale here. Wetrich does
not apply to determine whether Rumold's 2010 Kansas conviction for aggravated battery
was a person crime. The purpose of the comparability analysis is to determine whether a
sentencer should score a prior crime as a person crime or a nonperson crime. We have no
need to do a comparability analysis when our Legislature has stated that the crime is a
person or a nonperson crime. In 2010, the Kansas Legislature designated aggravated
burglary as a person crime. It did the same in 2018. Even though the elements of Kansas
aggravated battery were narrower in 2018 than they were in 2010, Rumold has not
persuaded us that her prior crime of aggravated battery was a nonperson crime.


       Constitutional argument


       Alternatively, Rumold raises an issue not addressed in Lyon—that the United
States Constitution compels us to use the identical-or-narrower test, citing Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Descamps v.
United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Mathis v.
United States, 579 U.S. ___,136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). Rumold concedes
that the United States Supreme Court has never held that the Constitution compels use of
the identical-or-narrower test, but she contends that it so "signaled" in Mathis. The State
counters that because no judicial fact-finding is necessary, these cases do not apply.


       We set forth the bulk of Rumold's constitutional argument here:


               "In accordance with Mathis, Descamps, and Apprendi, . . . the Sixth Amendment
       mandates the use of the identical-or-narrower test in this case . . . . The Sixth Amendment

                                                   13
       guarantees Ms. Rumold the right to have a jury decide whether the facts of her 2010
       Kansas aggravated burglary conviction equal facts meeting the elements of a 2018
       Kansas aggravated burglary. See Mathis, 136 S. Ct. at 2246, 2252. Otherwise, her rights
       have been violated by judicial fact-finding. Since the facts of the 2010 conviction were
       not put before a jury, the identical-or-narrower test is the only constitutionally approved
       test that may be used to enhance [her] sentence.


               "On constitutional or statutory grounds, Kansas courts must operate under the
       identical-or-narrower test when determining comparability of past in-state crimes
       pursuant to Keel's mandate that comparability be analyzed at the time of the current crime
       of conviction."


       We reject this argument on several grounds. First, as we have found above, no
comparability analysis needs to be done or should be done for in-state crimes committed
after 1993. As to those crimes, the Legislature's designation of the crime as a person
crime or a nonperson crime is controlling. And the Legislature's designation here is that
aggravated burglary is and was a person crime.


       Second, Rumold fails to show that making this person/nonperson determination
entails any judicial fact-finding. The district court need only read the 2010 aggravated
burglary statute and the 2018 aggravated burglary statute and see the Legislature's
designation of this crime as a person crime to reach the simple result. By so doing, the
district court does not remove from the jury the assessment of facts that increase the
prescribed range of penalties to which Rumold is exposed. The judge is merely
identifying the crime of conviction, not exploring how the defendant committed the
crime. And the mere fact that Rumold was convicted in 2010 of aggravated battery need
not be proved to a jury. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).


       Third, Rumold fails to show how Apprendi, Descamps, or Mathis applies to this
issue. In Apprendi, the defendant pleaded guilty to second-degree possession of a firearm,


                                                    14
which was punishable by a term of imprisonment of between 5 and 10 years. But the
judge sentenced him to 12 years of imprisonment under a statute that authorized an
enhanced sentence of 10 to 20 years if the sentencing judge found, by a preponderance of
the evidence, that the crime was motivated by racial bias. The Supreme Court reversed,
holding that under the Due Process Clause of the Fourteenth Amendment to the Federal
Constitution: "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." 530 U.S. at 490. See Alleyne v. United
States, 570 U.S. 99, 103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (finding any fact that
increases the mandatory minimum sentence for a crime is an element of the crime rather
than a sentencing factor that must be submitted to jury).


       But Rumold fails to show that a judge's use of the legislative person designation
requires the judge to determine any fact about her prior conviction. And Rumold asserts a
violation of the Sixth Amendment (which guarantees "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury"), not the
Fourteenth, as in Apprendi. Rumold cites no caselaw applying Apprendi to comparable
facts. As a result, Rumold does not show that Apprendi should apply.


       In Descamps, the defendant was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g), an offense which ordinarily carries a statutory
maximum penalty of 10 years in prison. But Descamps got an Armed Career Criminal
Act (ACCA) enhancement and was sentenced to 262 months in prison—more than twice
the maximum penalty he otherwise could have received. On appeal, he argued that his
prior convictions did not count as prior violent felony predicates for purposes of the
ACCA sentencing enhancement.


       The ACCA criminalizes the possession of a firearm by a convicted felon. 18
U.S.C. § 922(g). And it increases the penalty for repeat offenders from a 10-year

                                             15
maximum penalty to a 15-year minimum penalty. 18 U.S.C § 924(e)(1). So a defendant
who violates § 922(g) and has three previous convictions under § 922(g)(1) for a violent
felony or a serious drug offense, or both, committed on different occasions, shall be
imprisoned at least 15 years. 18 U.S.C. § 924(e).


       The ACCA lists certain felonies that necessarily count as violent felonies, such as
burglary, arson, and extortion, but it does not define those crimes, and states' definitions
vary. So the Supreme Court construes the ACCA as incorporating the modern "generic"
version of such offenses, and holds that only prior convictions falling within the generic
version of the offense could count as ACCA predicate crimes. To determine whether a
prior conviction falls within the generic version of the offense, sentencing courts use a
"categorical approach," analyzing the statutory definition of the offense of conviction
rather than the facts of the particular case. If that offense swept no more broadly or was
narrower than the generic version of the offense, then a conviction for the prior offense
categorically would count as an ACCA predicate felony. But when a statute sweeps more
broadly than the generic version of the offense, a sentencing court may sometimes engage
in "modified categorical review," meaning it can consult certain materials to determine
whether the prior conviction was for conduct falling within the generic version of the
offense. See Roth, The Divisibility of Crime, 64 Duke L.J. Online 95, 100 (2015).


       Descamps asked when such modified categorical review was appropriate.
Descamps held that modified categorical review was permissible only when the prior
conviction was under a "divisible" rather than an "indivisible" statute, meaning that the
statute explicitly set forth "alternative elements," some of which fell within the generic
offense and others of which did not. 570 U.S. at 261-64.


       Rumold cites Descamps for the proposition that the "identical-or-narrower test, a
strict comparison of the elements, is then used to determine the applicability of the prior


                                             16
conviction because to do anything else would be to violate Apprendi by looking to the
facts making up the prior conviction. Descamps, 570 U.S. at 257, 263-64, 277-78."
But this language does no more for Rumold than Apprendi does, which we have found
inapplicable above. And Rumold fails to show how Descamps' predicate crimes analysis
necessary for an ACCA sentencing enhancement applies here. Her case involves neither a
predicate crime, nor the ACCA, nor any sentencing enhancement comparable to the
ACCA's. Rather, her prior crime was used as a mere sentencing factor. Rumold cites no
cases applying Descamps to comparable facts. So Rumold does not show that Descamps
applies here.


       Similarly, in Mathis, the defendant pleaded guilty to being a felon in possession of
a firearm, and received a 15-year mandatory minimum sentence under the ACCA based
on his five prior convictions for burglary under Iowa law. Mathis asked "whether
ACCA's general rule—that a defendant's crime of conviction can count as a predicate
only if its elements match those of a generic offense—gives way when a statute happens
to list various means by which a defendant can satisfy an element." 136 S. Ct. at 2251.
Mathis reaffirmed longstanding Supreme Court precedent establishing that, in
determining whether a prior crime counts as a predicate crime of violence under the
ACCA, a court uses a "categorical approach," looking not to the facts of the prior crime
but to the statutory elements of the prior conviction.


       "For more than 25 years, we have repeatedly made clear that application of ACCA
       involves, and involves only, comparing elements. Courts must ask whether the crime of
       conviction is the same as, or narrower than, the relevant generic offense. They may not
       ask whether the defendant's conduct—his particular means of committing the crime—
       falls within the generic definition. And that rule does not change when a statute happens
       to list possible alternative means of commission: Whether or not made explicit, they
       remain what they ever were—just the facts, which ACCA (so we have held, over and
       over) does not care about." Mathis, 136 S. Ct. at 2257.



                                                  17
Rumold fails to show that the ACCA's predicate crimes analysis applies here where
neither a predicate crime nor the ACCA is involved. She cites no cases applying Mathis
to a case such as hers, where a prior crime is used merely as a sentencing factor. Rumold
has stretched these cases beyond their bounds.


       Mathis stated three reasons for adhering to an elements-only inquiry in ACCA
enhancement cases: textual, constitutional, and fairness. We set forth all three reasons for
completeness, although Rumold relies only on the second:


       "First, ACCA's text favors that approach. By enhancing the sentence of a defendant who
       has three 'previous convictions' for generic burglary, § 924(e)(1)—rather than one who
       has thrice committed that crime—Congress indicated that the sentencer should ask only
       about whether 'the defendant had been convicted of crimes falling within certain
       categories,' and not about what the defendant had actually done. Taylor, 495 U.S. at 600.
       Congress well knows how to instruct sentencing judges to look into the facts of prior
       crimes: In other statutes, using different language, it has done just that. See United States
       v. Hayes, 555 U.S. 415, 421, 129 S. Ct. 1079, 172 L. Ed. 2d 816 (2009) (concluding that
       the phrase 'an offense . . . committed' charged sentencers with considering non-elemental
       facts); Nijhawan v. Holder, 557 U.S. 29, 36, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)
       (construing an immigration statute to 'call[ ] for a "circumstance-specific," not a
       "categorical" interpretation'). But Congress chose another course in ACCA, focusing on
       only 'the elements of the statute of conviction.' Taylor, 495 U.S. at 601.


               "Second, a construction of ACCA allowing a sentencing judge to go any further
       would raise serious Sixth Amendment concerns. This Court has held that only a jury, and
       not a judge, may find facts that increase a maximum penalty, except for the simple fact of
       a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
       L. Ed. 2d 435 (2000). That means a judge cannot go beyond identifying the crime of
       conviction to explore the manner in which the defendant committed that offense. See
       Shepard, 544 U.S. at 25 (plurality opinion); id., at 28, 125 S. Ct. 1254 (THOMAS, J.,
       concurring in part and concurring in judgment) (stating that such an approach would
       amount to 'constitutional error'). He is prohibited from conducting such an inquiry


                                                    18
       himself; and so too he is barred from making a disputed determination about 'what the
       defendant and state judge must have understood as the factual basis of the prior plea' or
       'what the jury in a prior trial must have accepted as the theory of the crime.' See id., at 25,
       125 S. Ct. 1254 (plurality opinion); Descamps, 570 U.S., at __, 133 S. Ct. at 2288. He
       can do no more, consistent with the Sixth Amendment, than determine what crime, with
       what elements, the defendant was convicted of.


               "And third, an elements-focus avoids unfairness to defendants. Statements of
       'non-elemental fact' in the records of prior convictions are prone to error precisely
       because their proof is unnecessary. 133 S. Ct., at 2288-2289. At trial, and still more at
       plea hearings, a defendant may have no incentive to contest what does not matter under
       the law; to the contrary, he 'may have good reason not to'—or even be precluded from
       doing so by the court. When that is true, a prosecutor's or judge's mistake as to means,
       reflected in the record, is likely to go uncorrected. Such inaccuracies should not come
       back to haunt the defendant many years down the road by triggering a lengthy mandatory
       sentence." Mathis, 136 S. Ct. at 2252-53.


       We focus, as Rumold does, solely on the constitutional argument. But Mathis'
constitutional argument is based on Apprendi and does not help Rumold any more than
Apprendi itself does. In sentencing Rumold, the district court made no disputed
determination about the facts. The district court found no facts that increase a maximum
penalty, except for the simple fact of a prior conviction that Apprendi permits. Consistent
with the Sixth Amendment, the district court solely determined what crime, with what
elements, Rumold was convicted of. That easily withstands constitutional muster.


       We find no error in the district court's scoring Rumold's 2010 Kansas aggravated
battery conviction as a person crime.




                                                     19
Did the District Court Violate Section 5 of the Kansas Constitution Bill of Rights?


       Finally, Rumold argues that the KSGA's mandate to include prior criminal
convictions in calculating a defendant's sentence is unconstitutional. Here, she relies on
the right to a jury trial under section 5 of the Kansas Constitution Bill of Rights, which
states "[t]he right of trial by jury shall be inviolate." She contends this section precludes
the district court from using her prior convictions to elevate the permissive punishment
for the current crime of conviction, unless evidence of the prior conviction is presented to
and determined by a jury. Rumold 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). Seizing this rule, Rumold argues that the common law required the
State to prove a defendant's criminal history to a jury when the Kansas Constitution
began, and thus the KSGA—which allows a judge to find criminal history—is
unconstitutional under section 5. She asks this court to vacate her sentence and remand
with instructions to resentence her with a criminal history score of I.


       Preservation


       The State first argues that Rumold did not properly preserve this claim. 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 she raised the issue being appealed and where
the court ruled on that issue. If an issue was not raised in the trial court, it cannot be
raised on appeal. See State v. Williams, 298 Kan. 1075, 1085-86, 319 P.3d 528 (2014).
This rule applies to alleged constitutional violations as well. See State v. Godfrey, 301
Kan. 1041, 1043-44, 350 P.3d 1068 (2015). The rationale behind error preservation 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).

                                               20
       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
       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.


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. Godfrey, 301 Kan. at 1043; Kansas
Supreme Court Rule 6.02(a)(5).


       But even when a party properly explains why an exception applies, 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 have no obligation to do so.
State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).


       Rumold concedes that she did not raise this issue in the district court. Yet she
asserts the first two exceptions above. We focus on her argument that review of her claim
is necessary to prevent the denial of her fundamental right to a jury trial, citing Gard v.
Sherwood Const. Co., 194 Kan. 541, 549, 400 P.2d 995 (1965) (stating section 5's right to
a jury trial is a fundamental feature of American jurisprudence and should be carefully
guarded). The State responds that Rumold's reliance on this exception seems misplaced
because she waived her right to a jury trial and agreed to try the case to the bench on
stipulated facts. Although the State may be correct, it cites no authority in support of this
assertion. We find that Rumold has sufficiently brought her claim within the second
exception, and we choose to review the merits.




                                                    21
       Standard of Review

       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).


       Analysis

       Rumold contends that it is unconstitutional for a district court to use her prior
convictions to elevate the permissive punishment for the current crime of conviction,
without presenting evidence of her prior convictions to a jury. She concedes that her
argument fails under the United States Constitution. See Apprendi, 530 U.S. at 490
("Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt."); Ivory, 273 Kan. at 46-48. So Rumold asserts the same right
under the Kansas Constitution.


       But our court has recently rejected Rumold's argument under our state
Constitution. State v. Albano, 58 Kan. App. 117, Syl. ¶ 4 , 464 P.3d 332, 339-44
(2020);see State v. Billoups, No. 120,040, 2020 WL 1969356, at *17-20 (Kan. App.
2020) (unpublished opinion) (rejecting the argument that § 5 is broader than the Sixth
Amendment); State v. Valentine, No. 119,164, 2019 WL 2306626, at *6 (Kan. App.)
(unpublished opinion) (same), rev. denied 310 Kan. 1070 (2019).


       Rumold's argument is identical to the arguments this court rejected in Albano.
In Albano, the defendant challenged the KSGA's use of judicial findings of prior
convictions, claiming a violation of the Kansas Constitution. The Albano panel rejected
Albano's section 5 argument for two reasons. First, Albano showed no authority to
support her 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


                                             22
126; see also Valentine, 2019 WL 2306626, at *6 (rejecting same challenge to KSGA
and finding appellant failed to show section 5 provided greater protection than federal
jury trial right).


        Second, the Albano panel found her argument failed under a section 5 analysis. 58
Kan. App. 2d at 129. The Albano panel explained that under a section 5 analysis, "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."'" 58 Kan. App. 2d at 129. The panel then
examined the authority Albano relied on to show that at common law prior convictions
had to be found by a jury, not a judge—the same authority Rumold cites. The panel found
the authorities did not show a common-law right to have a jury find prior convictions.
Instead, 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." 58
Kan. App. 2d at 133.


        The 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 that "'[i]n 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.''' 58 Kan. App. 2d at 133.
(quoting State v. Woodman, 127 Kan. 166, 172, 272 P. 132 [1928]). The 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. Based on this authority, the Albano panel
concluded Albano's argument failed under a section 5 analysis—she did not establish a
common-law right to have a jury determine prior convictions and Kansas has always held

                                               23
that a defendant does not have a state constitutional right to have a jury determine prior
convictions. 58 Kan. App. 2d at 134.


       We agree with Albano that we should not interpret section 5 more broadly than we
do 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. See
State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013) ("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."). Kansas caselaw supports courts interpreting section 5 similarly to the Sixth
Amendment to the United States Constitution. See Albano, 58 Kan. App. 2d at 129.


       And Rumold fails to provide convincing evidence that a common-law right existed
to have a jury determine one's criminal history when the Kansas Constitution was
adopted. See Albano, 58 Kan. App. 2d at 129-34. Rumold relies on Tuttle v.
Commonwealth, 68 Mass. 505, 506 (1854), and Hines v. State, 26 Ga. 614, 616 (1859), as
support for her argument that a common-law rule precludes a district court from using a
defendant's prior crimes in calculating a sentence. But Tuttle and Hines examined
recividist statutes, which increased the penalty for a defendant's second offense under the
same statute. See Apprendi, 530 U.S. at 506-08 (Thomas, J., concurring) (alluding to
Tuttle and Hines as early cases addressing recidivism statutes). Rumold shows no reason
why those cases should apply to her simple prior crime.


       Tuttle found that when a statute imposes a higher penalty upon a second and a
third conviction, respectively, it makes the prior conviction of a similar offense a part of
the description and character of the offense intended to be punished, so the fact of such
prior conviction must be proved. Tuttle, 68 Mass. at 506.


                                             24
       Similarly, Hines held that when an indictment for selling liquor alleged that it was
the defendant's second violation of that statute, the existence of the first offense had to be
found by the jury, and not the court, in proving the second offense. Hines, 26 Ga. at 616.


               "The offence charged against Hines, was charged as a second offence. The Court
       told the jury, 'that no proof of a former conviction, was necessary.' The jury found a
       general verdict of 'guilty.' Afterwards, the Court itself heard evidence, as to whether the
       offence was a second one, and on that evidence came to the conclusion, that it was, and
       sentenced Hines to a punishment much too great for any but a second offence.
               "We think, that the question, whether the offence was a second one, or not, was a
       question for the jury. In every such question, identity is involved, and that, beyond a
       doubt, is a matter for the jury. Nor is it meant, that all the other matters involved in the
       question, may not also be for the jury. It is a general principle, that whatever it is
       necessary to allege, it is necessary to prove." Hines, 26 Ga. at 616.


       Statutes like those at issue in Tuttle and Hines speak to predicate crimes, where
evidence of the prior conviction is a necessary element of the crime of current conviction.
See State v. Gill, 26 Kan. App. 2d 127, 128, 980 P.2d 591 (1999) (finding evidence of a
prior felony conviction is a necessary element of the charge of criminal possession of a
firearm under K.S.A. 21-4204[a][2]), rev'd on other grounds, 268 Kan. 247, 997 P.2d
710 (2000). The early statutes in Tuttle and Hines find their modern-day counterpart in
sentence-enhancing recidivist laws, such as the ACCA. Yet Rumold was not sentenced
under a habitual felon, career criminal, or other recidivist statute comparable to the
ACCA. And neither Tuttle nor Hines speaks to the more typical use of prior crimes, as
used here, as simply one factor in determining a defendant's sentence under a non-
recidivist statute.


       Rumold provides no other authority or argument that undermines the Albano
panel's analysis on this issue. For these reasons, we hold that the KSGA is not
unconstitutional under section 5 of the Kansas Constitution Bill of Rights.


                                                     25
Affirmed.




            26
