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NOT DESIGNATED FOR PUBLICATION

No. 122,736

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

COOKEY LEE PHILLIPS,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion on remand filed 

June 24, 2022. Affirmed.

James M. Latta, 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 ARNOLD-BURGER, C.J., GREEN and POWELL, JJ.

PER CURIAM: In an earlier appeal before us, Cookey Lee Phillips argued that his 

sentence was illegal because the presentence investigation (PSI) report did not have 

enough information to conclude that his 2002 conviction for fleeing or eluding law 

enforcement was a felony. The State, however, argued that a remand and resentencing

was not appropriate because Phillips did not challenge his sentence as illegal and because 

Phillips did not object to his criminal history score at sentencing. Nevertheless, we 

vacated his sentence and remanded his case to the trial court with directions to determine 
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if Phillips' 2002 fleeing and eluding conviction was properly classified for criminal 

history purposes. 

Phillips and the State both petitioned for review. Our Supreme Court denied 

Phillips' petition and granted the State's petition. By order, our Supreme Court summarily 

vacated the portion of this court's opinion finding that the State failed to meet its burden 

to prove Phillips' criminal history. Our Supreme Court remanded the matter to this court 

for reconsideration in light of State v. Roberts, 314 Kan. 316, 498 P.3d 725 (2021). 

Because we conclude that the State met its burden to prove Phillips' criminal history, we 

affirm his sentence.

PROCEDURAL HISTORY

A jury found Phillips guilty of two counts of aggravated robbery in October 2015. 

State v. Phillips, No. 115,326, 2017 WL 4216234, at *2 (Kan. App. 2017) (unpublished 

opinion) (Phillips I). At sentencing, Phillips objected to the criminal history score in the 

PSI report. The trial court spoke with Phillips as follows:

"THE COURT: Mr. Phillips, do you have any objection to any of the findings 

set forth in your PSI?

"(Pause.)

"THE DEFENDANT: Yes, sir, I do. But—

"THE COURT: What objections are those? What entries do you object to?

"THE DEFENDANT: I'll deal with that at a later time, sir.

"THE COURT: No. I need to know now if you have an objection to the findings 

in your PSI as far as criminal history, criminal history category, or severity level of 

offenses.

"THE DEFENDANT: Well—

"THE COURT: Do you object to any specific entries in your PSI concerning. . . 

"THE DEFENDANT: As I've stated just before, Your Honor, I'll deal with that 

at a later time.
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"THE COURT: Entries 1 through 42 comprise your history of prior convictions 

that's been prepared in advance of and in anticipation of this sentencing. Do you feel any 

of those prior conviction[s] are incorrect?

"THE DEFENDANT: Due to the sentencing guidelines that were enacted from 

July the 1st, 1993, and the crimes categorized as persons and nonperson felonies, before 

that new sentencing guidelines was enacted, there was no such thing as a person or a 

nonperson felony. So therefore, yes, I do object to the presentence outcome of the 

investigation, sir.

"THE COURT: All right. And that's your only basis for objection to any of the 

findings set forth in the PSI?

"THE DEFENDANT: Yes, sir." 

Phillips filed his first appeal, arguing that his speedy trial rights were violated

when defense counsel continued the case multiple times at hearings outside his presence. 

Phillips I, 2017 WL 4216234, at *1. This court reversed the trial court's denial of Phillips'

motion to dismiss for violation of speedy trial rights, citing State v. Wright, 305 Kan. 

1176, 390 P.3d 899 (2017). Phillips I, 2017 WL 4216234, at *1. This court remanded for 

further proceedings and factual findings on Phillips' speedy trial rights. Because this court 

remanded, it declined to consider Phillips' other arguments related to sufficiency of the 

evidence. 2017 WL 4216234, at *4.

On remand, the trial court ruled that the violation of Phillips' right to be present 

was harmless, finding that if the case was tried within 90 days the State would have been 

ready for trial and the evidence would have been sufficient to convict Phillips. Phillips 

appealed a second time, arguing that the evidence did not support the trial court's 

harmlessness finding. He also restated his argument that the evidence at trial was 

insufficient to convict him, which this court previously declined to address. And he raised 

an illegal sentence challenge, asserting that the State failed to meet its evidentiary burden 

to support his criminal history score. This court affirmed the trial court's ruling that 

granting continuances when Phillips was not present was harmless error. And this court 
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affirmed Phillips' convictions as supported by sufficient evidence. But this court held that 

the State failed to prove Phillips' criminal history by a preponderance of the evidence. 

Thus, this court vacated his sentence and remanded to the trial court. State v. Phillips, No. 

122,736, 2021 WL 5264758 (Kan. App. 2021) (unpublished opinion) (Phillips II).

ANALYSIS

Did the trial court err in calculating Phillips' criminal history score?

An illegal sentence is a sentence imposed by a court that lacks jurisdiction; a 

sentence that does not conform to the applicable statutory provisions, either in character 

or the length of the punishment authorized; or a sentence that is ambiguous on the time 

and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c)(1). Whether a 

sentence is illegal under K.S.A. 2020 Supp. 22-3504 is a question of law over which we 

exercise unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). The 

party asserting an illegal sentence bears the burden of proving some evidentiary basis of 

illegality. See State v. Patterson, 262 Kan. 481, 485-86, 939 P.2d 909 (1997).

The PSI report prepared for sentencing showed Phillips had a criminal history 

score of A. To receive a criminal history score of A, a defendant must have three or more 

adult convictions or juvenile adjudications for person felonies. K.S.A. 2020 Supp. 21-

6809. The felony conviction that Phillips challenges here is a conviction for "Flee or 

Attempt to Elude an Officer" from February 2002. If the trial court had counted this 

conviction as a misdemeanor rather than a felony, then Phillips' criminal history score 

would have reduced from A to B (two person felony convictions). See K.S.A. 2020 Supp. 

21-6809. This reduction in Phillips' criminal history score would also reduce his 

presumptive prison sentence. See K.S.A. 2020 Supp. 21-6804(a).
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When this court remanded to the trial court, it noted that the PSI report lists the 

statute violated as K.S.A. 8-1568. Under K.S.A. 8-1568(a), fleeing or attempting to elude 

a police officer can be a class B misdemeanor, class A misdemeanor, or a severity level 9 

person felony, depending on whether the defendant has prior convictions for fleeing or 

attempting to elude. But a conviction under K.S.A. 8-1568(b) is a person felony. Phillips 

argued that the State failed to meet its burden of proof because the PSI report did not 

specify whether Phillips violated (a) or (b).

"At the sentencing hearing, the State bears the burden of proving the constitutional 

validity of prior convictions used to enhance a sentence." State v. Jones, 272 Kan. 674, 

681, 35 P.3d 887 (2001). K.S.A. 2020 Supp. 21-6814 outlines the steps for meeting this 

burden of proof:

"(a) The offender's criminal history shall be admitted in open court by the 

offender or determined by a preponderance of the evidence at the sentencing hearing by 

the sentencing judge.

"(b) Except to the extent disputed in accordance with subsection (c), the 

summary of the offender's criminal history prepared for the court by the state shall satisfy 

the state's burden of proof regarding an offender's criminal history.

"(c) Upon receipt of the criminal history worksheet prepared for the court, the 

offender shall immediately notify the district attorney and the court with written notice of 

any error in the proposed criminal history worksheet. Such notice shall specify the exact 

nature of the alleged error."

Phillips did not object to his 2002 conviction for fleeing or attempting to elude 

being scored as a felony. But he also did not admit to his criminal history, taking the 

opportunity to object generally to the use of person/nonperson classifications. Phillips did 

not give the trial court or the State written notification of any alleged error in his criminal 

history worksheet as required by K.S.A. 2020 Supp. 21-6814(c).
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Our Supreme Court decided State v. Roberts, 314 Kan. 316, 498 P.3d 725 (2021),

a week after this court released Phillips II. J'Mario D. Roberts personally admitted that 

his criminal history score was correct at sentencing. But on direct appeal, Roberts raised a 

challenge to his criminal history score. He argued that the State failed to show that his 

three misdemeanor municipal court convictions were counseled or that he waived his 

right to counsel. "An uncounseled misdemeanor conviction obtained in violation of the 

misdemeanant's Sixth Amendment right to counsel may not be collaterally used for 

sentence enhancement in a subsequent criminal proceeding." State v. Youngblood, 288 

Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009). On appeal, Roberts argued that the State had the 

burden of proving that his misdemeanor convictions were counseled to allow the trial 

court to count them toward his criminal history score.

The Roberts court interpreted the burden-shifting language in K.S.A. 2020 Supp. 

21-6814(c) to place the burden on Roberts.

"The State can satisfy its burden to establish criminal history by preparing for the court 

and providing to the offender a summary of the offender's criminal history. If the 

defendant provides written notice of any error in the summary criminal history report and 

describes the exact nature of that error, then the State must go on to prove the disputed 

portion of the criminal history. In the event the offender does not provide the required 

notice of alleged criminal history errors, then the previously established criminal history 

in the summary satisfies the State's burden, and the burden of proof shifts to the offender 

to prove the alleged criminal history error by a preponderance of the evidence." Roberts, 

314 Kan. at 322.

Roberts did not provide the required notice of alleged criminal history errors, so 

the previously established criminal history in the summary satisfied the State's burden at 

sentencing. Roberts argued that the burden would remain with the State in the context of 

a direct appeal. But the Roberts court held that, once the State meets its burden at 

sentencing, the burden shifts to the defendant whether the defendant brings a challenge 
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on direct appeal or in a later motion to correct an illegal sentence. 314 Kan. at 323, 331-

32.

Phillips did not object to his conviction for fleeing or eluding an officer counting 

as a felony, which affects the burden of proof. In this respect, Phillips differs slightly 

from Roberts. When the sentencing court asked Roberts if he personally admitted to his 

criminal history, Roberts said yes. 314 Kan. at 318; see State v. Corby, 314 Kan. 794, 

795, 502 P.3d 111 (2022). In Corby, our Supreme Court held that K.S.A. 2020 Supp. 21-

6814(a) sets forth two potential paths for calculating criminal history: the defendant 

admits criminal history; or the defendant does not admit criminal history and the court 

must determine criminal history by a preponderance of the evidence. 314 Kan. at 796. 

The PSI report showed that Phillips was convicted under K.S.A. 8-1568 without 

specifying the subsection, but it listed the conviction as "AFP" or adult person felony. 

Phillips did not object to that classification. Thus, the PSI report satisfied the State's 

burden of proof at the sentencing hearing on Phillips' criminal history in the manner set 

forth in K.S.A. 2020 Supp. 21-6814(b). 314 Kan. at 797 ("The summary of the offender's 

criminal history prepared for the court by the State shall satisfy the State's burden of 

proof regarding an offender's criminal history, unless the offender provides the district 

attorney and the court with written notice specifying the exact nature of any alleged 

error."). Because Phillips failed to object under K.S.A. 2020 Supp. 21-6814(c) at or 

before sentencing, Phillips has the burden to show by a preponderance of the evidence 

that the trial court erred in calculating his criminal history score.

Notably, Phillips does not point to any evidence, or even argue, that he was 

convicted of misdemeanor fleeing or attempting to elude in 2002. He simply argues that 

the conviction might have been a misdemeanor. See 314 Kan. at 795. Thus, he makes no 

attempt to assert that he received an illegal sentence or to show how his sentence was 

illegal. Posing a mere possibility and making conclusory assertions is an insufficient 

basis for correction of an illegal sentence. Phillips has failed to make a colorable claim 
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that his sentence was illegal under K.S.A. 2020 Supp. 22-3504(c)(1). Thus, we dismiss 

Phillips' claim that his sentence was illegal.

For the preceding reasons, we affirm the sentence imposed by the trial court.

Affirmed.