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NOT DESIGNATED FOR PUBLICATION

No. 124,466

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

MARK ALLEN SANTOS,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER and RODGER L. WOODS, judges. 

Opinion filed September 2, 2022. Affirmed.

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

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

attorney general, for appellee.

Before GARDNER, P.J., MALONE and CLINE, JJ.

PER CURIAM: Mark Allen Santos appeals the sentence he received for his 

conviction of possession of methamphetamine. He claims for the first time on appeal that 

his presentence investigation (PSI) report might not accurately reflect his criminal history 

and so he may have received an illegal sentence. But at sentencing Santos personally 

agreed with his criminal history score in the PSI report and did not challenge the 

accuracy of any of his prior convictions listed in the report. Santos' sentencing challenge 

is foreclosed by the Kansas Supreme Court's recent decision in State v. Corby, 314 Kan. 

794, 797-98, 502 P.3d 111 (2022), and we affirm the district court's judgment.
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FACTS

In November 2019, Santos pled guilty to one count of possession of 

methamphetamine, and the district court ordered a PSI report to be prepared for 

sentencing. The PSI report listed 63 prior convictions including a 2001 Kansas conviction 

for fleeing or attempting to elude an officer in violation of K.S.A. 8-1568. This crime 

constitutes a misdemeanor or a person felony depending on which subsection of K.S.A. 

8-1568 the offender violates. The PSI report failed to state under which subsection of 

K.S.A. 8-1568 Santos' conviction fell, but it scored the conviction as a person felony. 

This resulted in a finding of a criminal history score of C. 

Santos forfeited his bond after the plea hearing, and the court did not hold the 

sentencing hearing until November 9, 2020. At sentencing, Santos' counsel stated there 

was no objection to either the PSI report or the resulting criminal history score. Then, the 

judge personally addressed Santos about the accuracy of his criminal history score: 

"THE COURT: Mr. Santos, did you have a chance to review each and every 

entry on your Presentence Investigation? 

"MR. SANTOS: Yes, sir.

"THE COURT: Do you believe that every entry on your Presentence 

Investigation form is correct?

"MR. SANTOS: Yes, sir. 

"THE COURT: And do you believe your criminal history score is appropriately 

set at C as in cat?

"MR. SANTOS: Yes, sir."

Based on the criminal history score, the district court sentenced Santos to 32 

months' imprisonment but granted probation for 18 months conditioned on drug 

treatment. Santos did not initially appeal his sentence. 
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Less than a year later, the State issued a warrant for Santos' arrest, following a 

positive drug test and Santos' discharge from his drug treatment housing. At a hearing on

September 13, 2021, Santos stipulated to violating his probation. The district court 

extended Santos' probation for another 18 months and ordered him to attend an inpatient 

drug treatment facility. Santos filed a timely notice of appeal, and the district court 

appointed counsel to represent him on appeal. The docketing statement filed with this 

court asserts that the "court erred in extending [Santos'] probation for 18 months."

ANALYSIS

Although Santos' appeal follows the district court's decision to extend his 

probation for 18 months, his brief does not challenge this decision. An issue not briefed is 

waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). And 

Santos is not bound to argue the "proposed" issue in his docketing statement. 

Instead, Santos argues for the first time on appeal that the sentence he received on 

November 9, 2020, may be illegal. More specifically, Santos asserts that the PSI report

was deficient because it did not specify under which subsection of K.S.A. 8-1568 that his

2001 conviction for fleeing or attempting to elude an officer was charged. Noting that the 

statute has both misdemeanor and felony violations for the same offense, Santos argues 

that remand is necessary to determine the accuracy of his PSI report and, thereby, the 

legality of his sentence. The State does not dispute that Santos can challenge the legality 

of his sentence for the first time on appeal. See K.S.A. 2021 Supp. 22-3504(a) ("The 

court may correct an illegal sentence at any time while the defendant is serving such 

sentence."); 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 
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time it is pronounced." K.S.A. 2021 Supp. 22-3504(c)(1). Our Supreme Court has stated

that "where 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. Our Supreme Court has also stated our standard of review. "Typically we describe 

the classification issue as a question of law, but it is a bit more nuanced [here] because it 

is the State's burden to prove by a preponderance of the evidence that the defendant 

committed a crime for which classification is appropriate." State v. Obregon, 309 Kan.

1267, 1275, 444 P.3d 331 (2019). When reviewing the classification of a prior 

conviction, an appellate court determines whether substantial competent evidence 

supports the district court's finding that the State met this burden. 309 Kan. at 1275.

Santos asserts that we should apply this court's reasoning in State v. Chenault, No. 

121,998, 2020 WL 6935616, at *3-4 (Kan. App. 2020) (unpublished opinion), where 

another panel of this court found that a PSI report's failure to include the subsection of a 

statute which contained both felony and misdemeanor provisions was insufficient to

prove the defendant's criminal history. In Chenault, the defendant's PSI report listed prior 

convictions of interference with a law enforcement officer and theft, scored as felonies. 

This court noted that these convictions could either be felonies or misdemeanors 

depending on which subsection of the statutes the defendant was convicted. 2020 WL 

6935616, at *3. Without this information, this court determined there was insufficient 

evidence to establish that the convictions were properly classified, and remand was 

necessary for the State to satisfy its burden of proof. 2020 WL 6935616, at *4.

But Santos acknowledges that in State v. Roberts, 314 Kan. 316, 320, 498 P.3d 

725 (2021), the defendant argued the district court had erred in using three misdemeanor 

convictions to enhance his criminal history score because the State had not offered proof 

that the convictions had been counseled or that the defendant had waived counsel. The 

defendant had not challenged his criminal history score at sentencing. In rejecting the

defendant's argument, our Supreme Court held that
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"a defendant who fails to object under K.S.A. 2020 Supp. 21-6814(c) at sentencing to the 

constitutional validity of a prior conviction used to enhance a current sentence, based on 

a claim of the absence of counsel without a valid waiver, has the burden to show the prior 

conviction is invalid, regardless of whether the defendant's constitutional challenge to the 

allegedly uncounseled conviction in criminal history is brought on direct appeal of the 

current sentence or in a proceeding collaterally attacking that sentence." 314 Kan. at 334-

35. 

Then, after Santos filed his appellate brief, our Supreme Court decided Corby, a 

case that is factually identical to Santos' case. In Corby, the defendant's PSI report failed 

to state under which subsection of K.S.A. 8-1568 the defendant's two prior fleeing or 

attempting to elude convictions fell. Still, the PSI report scored both convictions as 

person felonies. At sentencing, the defendant personally admitted that his criminal history 

was correct in response to a question from the district court. After violating probation and 

being ordered to serve his underlying sentence, the defendant appealed, arguing in part 

that his original sentence was illegal because the State provided insufficient proof that his 

prior convictions were felonies.

Following the reasoning in Roberts, our Supreme Court rejected the defendant's 

argument and found that a defendant who fails to object to a PSI report at sentencing has 

the burden to prove a prior conviction is invalid for the first time on appeal. 314 Kan. at 

797. More specifically, the court held that "[a] defendant's admission to prior in-state 

criminal history as set forth in a [PSI] report relieves the State from having to produce 

additional evidence to support a criminal history score." 314 Kan. 794, Syl. 

Like the defendant in Corby, Santos personally admitted that his criminal history 

was correct during sentencing. And like the defendant in Corby, Santos is not claiming 

that his sentence is illegal but is claiming it might be illegal because the PSI report did 

not list the statutory subsection under which his prior conviction fell. Santos only 
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speculates for the first time on appeal that his PSI report might be wrong resulting in an 

illegal sentence, and this speculation cannot support a remand under Corby.

Our Supreme Court's more recent opinion in Corby trumps this court's 

unpublished opinion in Chenault. The Kansas Court of Appeals is duty-bound to follow 

Kansas Supreme Court precedent unless there is some indication that the Supreme Court 

is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 

P.3d 903 (2017). We have no indication our Supreme Court is departing from its recent 

decision in Corby. Because Santos personally admitted to the accuracy of his PSI report 

at his sentencing hearing, we find that the State has met its burden to properly classify 

Santos' 2001 Kansas conviction for fleeing or attempting to elude an officer as a person

felony. As a result, Santos is entitled to no relief on this claim made for the first time on 

appeal. But we observe that Santos may still move in the district court to correct his 

alleged illegal sentence, and in such a motion he will have the burden of proving that his 

prior conviction for fleeing or attempting to elude an officer was improperly classified as 

a person felony, resulting in a different criminal history score and an illegal sentence.

Affirmed.