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NOT DESIGNATED FOR PUBLICATION

No. 123,780

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JOSHUA MATTHEW STUBBY,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed December 17, 2021.

Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,

and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.

PER CURIAM: Joshua Matthew Stubby pled guilty to two counts of stalking and 

two counts of violation of protection from abuse order. The district court granted him a 

downward dispositional departure from a presumptive prison sentence to 12 months'

probation. After many probation violations, the district court revoked Stubby's probation 

and ordered him to serve his original 14-month prison sentence. Stubby does not appeal 

the probation revocation but argues that his original sentence is illegal because the district 

court converted six misdemeanor convictions in his criminal history into two person 

felonies without requiring the State to prove that the misdemeanors were counseled. But 
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because Stubby did not raise this objection at or before his original sentencing, the 

burden is on him to prove the error in his criminal history. State v. Roberts, 314 Kan. ___, 

Syl. ¶ 6, 2021 WL 5409140, at *1 (No. 121,682, filed November 19, 2021). He fails to do 

so. Thus, we reject Stubby's sentencing claim and affirm the district court's judgment.

FACTS

Stubby pled guilty to two counts of stalking, a severity level 9 person felony, and 

two counts of violation of a protection from abuse order, a class A misdemeanor. As part 

of a plea agreement, the State agreed to recommend the low number in the grid box and 

to not oppose concurrent sentences. Stubby's presentence investigation (PSI) report 

scored his criminal history as B, based on six misdemeanor convictions converted into 

two person felonies. Stubby filed a motion for a dispositional departure sentence.

At the sentencing hearing, Stubby did not object to his criminal history score of B 

or to the validity of any of his prior convictions listed in the PSI report. The district court 

sentenced Stubby to a controlling term of 14 months' imprisonment but granted his 

motion for a dispositional departure and placed him on probation for 12 months.

Stubby violated the conditions of his probation and served intermediate sanctions.

After Stubby committed more violations, the district court revoked his probation and 

ordered him to serve his original sentence. Stubby timely filed a notice of appeal.

ANALYSIS

For the first time on appeal, Stubby claims that "[t]he State failed to present any 

evidence that [he] was represented by counsel in any of his six misdemeanor convictions 

and as a result, the district court erred by converting those convictions to two person 

felonies for criminal history purposes." Stubby asserts that his sentence is illegal under 
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K.S.A. 22-3504, and he asks that we remand his case for resentencing. He correctly 

asserts he can challenge the legality of his sentence for the first time in an appeal from a 

probation revocation. State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016).

An illegal sentence is one that is "[i]mposed by a court without jurisdiction; that 

does not conform to the applicable statutory provision, either in character or punishment; 

or that is ambiguous with respect to the time and manner in which it is to be served at the 

time it is pronounced." K.S.A. 2020 Supp. 22-3504(c)(1). "[W]here there has been a 

misclassification of a prior conviction, the resulting sentence is illegal and can be 

corrected at any time pursuant to K.S.A. 22-3504." Dickey, 305 Kan. at 220.

The State argues that when Stubby admitted to his criminal history score the 

State's burden of proving the constitutionality of Stubby's prior convictions was satisfied. 

The State asserts that under K.S.A. 2020 Supp. 21-6814, the burden shifted to Stubby to 

prove that his past convictions were uncounseled, and he failed to do so.

Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over 

which the appellate court has unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 

P.3d 1068 (2019). Similarly, the classification of prior convictions for criminal history 

purposes involves interpretation of the revised Kansas Sentencing Guidelines Act 

(KSGA). Statutory interpretation is a question of law subject to unlimited review. State v. 

Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

Under the KSGA, a defendant's sentence depends on the severity level of the

crime of conviction and the defendant's criminal history score. K.S.A. 2020 Supp. 21-

6804(d). A person's criminal history score is based on their prior convictions. K.S.A. 

2020 Supp. 21-6810. The sentencing court can convert every three class A and class B 

person misdemeanors to a single person felony for criminal history purposes. K.S.A. 

2020 Supp. 21-6811(a). But an uncounseled misdemeanor conviction cannot be used to 
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enhance a sentence in a subsequent criminal proceeding unless the right to counsel was 

waived. State v. Tims, 302 Kan. 536, Syl. ¶¶ 1-2, 355 P.3d 660 (2015).

To establish a defendant's criminal history, the State must prove the criminal 

history by a preponderance of the evidence unless the offender admits to it. K.S.A. 2020 

Supp. 21-6814(a). If the offender does not object to the PSI report's summary of the

criminal history, then the report satisfies the State's burden of proof. K.S.A. 2020 Supp. 

21-6814(b). But if the offender objects to that summary, the State bears the burden of 

proving the disputed portion of the criminal history through more evidence. If the 

offender "later challenges" the criminal history, the burden shifts to the offender to prove 

the criminal history by a preponderance of the evidence. K.S.A. 2020 Supp. 21-6814(c).

Stubby's PSI report showed that he had a criminal history score of B. To receive a 

criminal history score of B, a defendant must have two adult convictions or juvenile 

adjudications for person felonies. K.S.A. 2020 Supp. 21-6809. Stubby's criminal history 

score of B stemmed from converting six misdemeanors into two person felonies under

K.S.A. 2020 21-6811(a) (allowing conversion of every three person misdemeanors to a 

single person felony for scoring criminal history).

Stubby now claims for the first time on appeal that his sentence is illegal because 

the district court converted the six misdemeanor convictions into two person felonies 

without requiring the State to prove the misdemeanors were counseled. Stubby asserts 

that the prior misdemeanor convictions may have been uncounseled, rendering the 

convictions unconstitutional. The State argues that it met this burden of proving the 

convictions were valid when Stubby failed to object to his PSI report at sentencing.

Resolution of Stubby's claim depends on which party has the burden of proving 

there was an error in Stubby's criminal history at this stage of the proceedings. In a case 

of first impression, the Kansas Supreme Court recently held that a criminal defendant 
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who collaterally attacks a sentence enhanced by prior convictions bears the burden of 

proving the prior convictions were uncounseled if the defendant did not object to the 

validity of the prior convictions at or before sentencing. Roberts, 314 Kan. ___, Syl. ¶ 6, 

2021 WL 5409140, at *1.

In Roberts, the district court converted three prior misdemeanor convictions to a 

single person felony conviction to sentence Roberts. The conversion of the misdemeanors 

raised Roberts' criminal history score from C to B. Roberts did not object to his criminal 

history score at sentencing, and the district court placed him on probation. After Roberts'

probation was later revoked, he argued for the first time on appeal that his sentence was 

illegal because the State did not prove that the prior misdemeanor convictions used to 

enhance his sentence were counseled or that he waived his right to counsel.

Roberts argued that because the State has a statutory duty to establish an offender's 

criminal history in court, the State must affirmatively show that prior convictions were 

constitutionally valid before using them to enhance his current sentence. The State argued 

that under K.S.A. 2020 Supp. 21-6814(b), if the offender does not provide written notice 

of any errors in the criminal history worksheet at or before sentencing, then the State has 

met its burden of proving an offender's criminal history. The State asserted that once it 

met its burden, the burden shifts to the offender in later challenges to the criminal history.

In deciding the case, the Roberts court examined the plain language of the 

controlling statutes and reviewed existing caselaw. The court synthesized its prior 

holdings into one legal proposition:

"[I]f a defendant—after sentencing—makes a claim that the sentence is illegal based on a 

challenge to the constitutional validity of prior convictions due to the absence of counsel

in the prior convictions, the defendant has the burden to show he or she did not waive
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counsel and did not have the benefit of counsel at the prior convictions." Roberts, 2021 

WL 5409140, at *9.

The court also found that if a defendant does not follow the statutory procedure to 

object to their criminal history at or before sentencing, then a "'presumption of 

regularity'" attaches to a final judgment entered in a prior case and the defendant bears 

the burden of producing evidence to rebut that presumption. Roberts, 2021 WL 5409140, 

at *6. Because Roberts did not object to his criminal history summarized in his PSI report 

at or before sentencing, the burden was on him on appeal to prove that his prior 

misdemeanors were constitutionally invalid. Roberts did not satisfy this burden and so 

our Supreme Court affirmed the dismissal of his appeal. Roberts, 2021 WL 5409140, at 

*11.

Roberts controls the outcome of Stubby's appeal. Because Stubby did not object to 

his criminal history summarized in his PSI report at or before sentencing, the burden is 

now on him to prove that his prior misdemeanor convictions were constitutionally 

invalid. Stubby has not come forward to satisfy this burden. As a result, we reject 

Stubby's sentencing claim and affirm the district court's judgment.

Affirmed.