1

NOT DESIGNATED FOR PUBLICATION

Nos. 121,267

 121,268

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MARSHAE LATRICE SMITH,

Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed June 5, 2020. Affirmed.

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

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., HILL and ATCHESON, JJ.

PER CURIAM: Defendant Marshae Latrice Smith appeals the sentences the Johnson 

County District Court imposed on her for a series of financial crimes she committed 

against the residents of nursing homes where she worked as a care provider. Smith 

contends both that the fines arising from her multiple forgery convictions are infirm 

under the Sixth Amendment to the United States Constitution and that her criminal 

history had to be proved to a jury under § 5 of the Kansas Constitution Bill of Rights. 

Neither argument has merit. We affirm Smith's convictions and sentences.
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The circumstances of Smith's underlying crimes are not germane to the legal 

issues she raises on appeal except to place those issues in some broad context. Smith stole 

checkbooks and financial cards from residents of the care facilities and used them for her 

own benefit. The district attorney charged Smith with a total of 31criminal acts, including 

9 counts of forgery, in 2 cases that were jointly presented to the district court for 

disposition. Under an agreement with the State, Smith pleaded guilty as charged. 

At the sentencing hearing in April 2019, Smith agreed she was in criminal history 

category B, requiring two past convictions for person felonies. Based on her criminal 

history, Smith faced a statutory presumption that she serve time in prison rather than 

being placed on probation. Through her lawyer, Smith requested a less severe 

punishment. The State opposed any sentencing reduction. The district court sentenced 

Smith to 31 months in prison in each case, reflecting the aggravated presumptive term of 

incarceration under the sentencing guidelines, and ordered the terms be served 

consecutively. In addition, the district court ordered Smith to pay a fine of $500 on the 

single forgery conviction in one of the cases and a total fine of $4,500 on the eight 

forgery convictions in the other case. Smith has appealed. 

For her first issue on appeal, Smith attacks the mandatory fines for forgery 

convictions on the grounds the punishment violates her Sixth Amendment right to a jury 

trial as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 

2d 435 (2000), and later related cases. Under the Kansas statute criminalizing forgery, a 

defendant must pay a fine equal to the lesser of the face amount of the forged instrument 

or $500 for a first conviction. K.S.A. 2019 Supp. 21-5823(b)(2). A recidivist forger faces 

similar fines tied to the amount of the falsified instrument with a maximum of $1,000 for 

a second conviction and a $2,500 maximum for each additional conviction. K.S.A. 2019 

Supp. 21-5823(b)(3) and (4). Those mandatory fines are distinct from fines as a form of 

punishment a district court may generally impose in its discretion under the Kansas 

Criminal Code. See K.S.A. 2019 Supp. 21-6611. 
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Smith contends the fines in the forgery statute are facially unconstitutional under 

the Sixth Amendment. In Apprendi, the United States Supreme Court held that any fact 

other than an earlier conviction that would elevate a criminal defendant's sentence above 

a statutory maximum punishment must be submitted to a jury and proved beyond a 

reasonable doubt. 530 U.S. at 490. The rule entails a specific application of the Sixth 

Amendment right to jury trial. And it applies to fines. Southern Union Co. v. United 

States, 567 U.S. 343, 346, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012). In short, a district 

court cannot make factual findings and rely on those findings to impose an enhanced 

sentence on a defendant. But the United States Supreme Court has recognized an 

exception to the Apprendi rule when a criminal defendant admits or stipulates to the fact 

triggering the increased punishment as part of a plea to the charge. Southern Union, 567 

U.S. at 348; Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 

403 (2004) ("When a defendant pleads guilty, the State is free to seek judicial sentence 

enhancements so long as the defendant either stipulates to the relevant facts or consents 

to judicial factfinding."). The defendant's admission obviates the need for judicial factfinding, since the district court may rely on the admission itself.

In launching a facial constitutional challenge to the mandatory fines in K.S.A. 

2019 Supp. 21-5823(b), Smith has undertaken a formidable task. To succeed, Smith 

would have to show that under "'no set of circumstances'" could the fines be 

constitutionally imposed or that the statutory imposition of those fines for forgery 

convictions lacks any "'plainly legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 

472, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010); see United States v. Salerno, 481 U.S. 

739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). We have a difficult time seeing how 

a criminal statute would be facially unconstitutional in the way Smith asserts. And the 

fines in the forgery statute clearly are not. 
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First, of course, the fines do not exceed some "legitimate sweep" in criminalizing 

forgery. They entail an entirely appropriate punitive tool, especially for a crime yielding a 

direct financial benefit to the defendant. We don't understand Smith to be resting her 

argument on that sort of claimed defect. 

Rather, we take Smith's argument to be that any imposition of a fine under K.S.A. 

2019 Supp. 21-5823(b) would require constitutionally impermissible judicial fact-finding 

as to the amount of the forged instrument, which either becomes the fine amount or 

triggers the statutorily prescribed amount. But that contention is equally unavailing. The 

statute does not mandate judicial fact-finding as the exclusive means of determining the 

fine amount. As part of a plea to a forgery charge, a defendant could agree or stipulate to 

the amount of the forged instrument, consistent with Blakely. We suppose that may be a 

common occurrence. Even if it were uncommon, the very existence of the possibility as a 

legal option prevents K.S.A. 2019 Supp. 21-5823(b) from running afoul of Apprendi for 

being facially unconstitutional. Smith's argument fails for that reason alone.

Smith does not challenge the constitutionality of the forgery fines in K.S.A. 2019 

Supp. 21-5823(b) as applied to her in this case. The plea hearing undercuts an as-applied 

challenge had Smith made one. But it also illustrates why Smith's facial challenge 

necessarily fails, as well. The transcript of the plea hearing shows that Smith agreed to 

the prosecutor's recitation of the exact amounts of the eight forged checks in one of the 

cases in entering her guilty plea to those charges. In the other case, Smith agreed that the 

check providing the basis for the single count of forgery was drawn in an amount 

between $1,000 and $25,000. Those admissions were an integral part of the plea 

colloquy, establishing the factual bases for the convictions, and, therefore, easily fit 

within the exception recognized in Blakely. Consistent with the language in K.S.A. 2019 

Supp. 21-5823(b), the district court properly relied on those admissions to fine Smith, 

obviating the need for any judicial fact-finding and demonstrating why the statute cannot 

be facially unconstitutional in the way Smith suggests. 
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In sum, we find the district court's imposition of fines on the forgery counts 

entailed neither impermissible judicial fact-finding nor a violation of Smith's right to jury 

trial.

For her other point on appeal, Smith contends the district court's reliance on her 

past convictions in determining her criminal history category compromised her right to a 

jury trial in § 5 of the Kansas Constitution Bill of Rights. That section of the Bill of 

Rights simply states: "The right of trial by jury shall be inviolate." Section 10 of the 

Kansas Constitution Bill of Rights separately guarantees a criminal defendant the right to 

"a speedy public trial by an impartial jury," among other protections. Smith says § 5 of 

the Bill of Rights requires the State to prove her past convictions to a jury before they can 

be used in compiling her criminal history. As we briefly explain, criminal history plays a 

significant part in determining sentences for most defendants, including Smith, convicted 

of felonies.

Convicted felons typically face presumptive punishment under the Kansas 

sentencing guidelines, except for some homicides and sex crimes that carry "off-grid" 

punishments including life sentences. The usual term of incarceration under the 

guidelines is derived from a matrix in which one axis consists of criminal history 

categories and the other axis consists of the severity levels legislatively assigned to 

particular felonies. For a given defendant, the usual term of imprisonment is found in a 

box on the matrix at the intersection of his or her criminal history category and the 

severity level for the crime of conviction. The box contains an aggravated term, a 

standard term, and a mitigated term, all expressed in months. And some boxes fall in a 

presumptive probation category and others in a presumptive imprisonment category, 

thereby directing whether a district court typically should place a defendant on probation 

or order incarceration. See K.S.A. 2019 Supp. 21-6804(a).
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For Smith, her criminal history substantially increased the prison terms she faced 

and triggered a presumption for incarceration rather than probation. Smith says that 

because a jury never considered her criminal history, the district court improperly relied 

on her previous convictions in sentencing her in these cases. As a result, she contends she 

received an illegal sentence and should be resentenced without considering her past 

convictions. We are unpersuaded.

As we have already pointed out, the federal right to jury trial under the Sixth 

Amendment does not extend to proof of a defendant's past convictions for purposes of 

imposing a sentence in a pending case. In Apprendi, the Court expressly carved out "the 

fact of a prior conviction" from the constitutional limitation on judicial fact-finding. In 

turn, the Kansas Supreme Court has consistently rejected the argument that the state's 

sentencing guidelines violate the Sixth Amendment because a defendant's criminal

history is not proved to a jury and instead rests on judicial fact-finding. State v. Razzaq, 

309 Kan. 544, 552, 439 P.3d 903 (2019); State v. Pribble, 304 Kan. 824, 838-39, 375 

P.3d 966 (2016) State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. 

Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).

The Kansas Supreme Court has also recognized that the jury trial rights in § 5 and 

§ 10 of the Kansas Constitution Bill of Rights are coextensive with each other and are no 

broader than the Sixth Amendment right to jury trial. See State v. Redick, 307 Kan. 797, 

803, 414 P.3d 1207 (2018) (recognizing § 5 and § 10 of the Kansas Constitution Bill of 

Rights and Sixth Amendment all afford criminal defendants a right to jury trial); State v. 

Carr, 300 Kan. 1, Syl. ¶ 1, 331 P.3d 544 (2014) (recognizing § 10 of the Kansas 

Constitution Bill of Rights to be comparable to Sixth Amendment), rev'd and remanded 

on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016); State v. 

Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000) (rejecting argument § 5 of the Kansas 

Constitution Bill of Rights guarantees greater rights than Sixth Amendment).[*]
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[*]The Conley court recognized § 5 of the Kansas Constitution Bill of Rights to be 

no more extensive than the Sixth Amendment in rejecting an argument that the State 

constitutional right required that a jury find facts necessary to impose a hard-40 sentence 

for certain first-degree murder convictions even though the Sixth Amendment apparently 

did not. Thirteen years later, the United States Supreme Court overruled its own caselaw 

and held that the Sixth Amendment right to jury trial does apply to aggravating facts 

increasing a mandatory minimum punishment. Alleyne v. United States, 570 U.S. 99, 103, 

133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) (overruling Harris v. United States, 536 U.S. 

545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 [2002]). The Alleyne decision also effectively 

overruled the specific holding in Conley that permitted the imposition of a hard-40 

sentence based on judicial fact-finding. See State v. Astorga, 299 Kan. 395, 395-96, 324 

P.3d 1046 (2014) (recognizing Alleyne implicitly overruled Conley). But the extension of 

Apprendi to facts increasing mandatory minimum sentences does not in any way undercut 

Conley's more fundamental determination that § 5 of the Kansas Constitution Bill of 

Rights affords no greater protections than the Sixth Amendment. 

Given that authority, we necessarily must conclude that the Kansas Supreme Court 

would reject Smith's argument, since it depends upon § 5 of the Kansas Constitution Bill 

of Rights conferring greater rights than the Sixth Amendment. The court has declined to 

construe either § 5 or § 10 of the Kansas Constitution Bill of Rights that way. We, 

therefore, find no error in the district court's determination and application of Smith's 

criminal history in arriving at a guidelines sentence. We are not alone in that assessment 

of the argument Smith has advanced. Other panels of this court have rejected the 

contention in other cases. State v. Albano, No. 120,767, 2020 WL 1814326, at *8 (Kan. 

App. 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. ___ (December 17, 2019).

Affirmed.