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NOT DESIGNATED FOR PUBLICATION

No. 124,356

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TERRIN JAMES HAGGARD SR.,

Appellant.

MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed May 27, 2022. Appeal 

dismissed. 

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before CLINE, P.J., ISHERWOOD and HURST, JJ.

PER CURIAM: Contrary to clear Kansas Supreme Court precedent, Terrin James 

Haggard Sr. appeals from his plea agreement claiming that his agreed-upon criminal 

history score was not supported by sufficient evidence. In an agreement in which the 

State dismissed several other charges against him, Haggard pled no contest to one count 

of aggravated domestic battery, and the district court ultimately sentenced him to 24 

months' probation. Haggard's sentence was based, in part, on his criminal history score of 

C—which he now appeals—arguing that the district court erred in calculating his 
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criminal history score by converting his prior municipal convictions to a person felony 

without the State proving that he was represented by counsel or waived that right in his 

prior municipal convictions. But, as Haggard is aware, the Kansas Supreme Court has 

found that when disputing a criminal history score, after failing to object at or prior to 

sentencing, the defendant bears the burden to show the prior municipal convictions were 

invalid. Accordingly, because Haggard has failed to provide evidence to meet this burden 

on appeal, this court must dismiss his claim. 

FACTUAL AND PROCEDURAL BACKGROUND

In February 2021, the State charged Haggard with one count of felony aggravated 

domestic battery, one count of misdemeanor violation of a protective order, and one 

count of misdemeanor theft related to an incident where Haggard allegedly pushed his 

way into his then-wife's home, choked her until she lost consciousness, and stole her dog. 

In exchange for the State's dismissal with prejudice of the other two charges, and 

agreement not to oppose probation and request additional jail time, Haggard agreed to 

and entered a no contest plea to the aggravated domestic battery charge. The district court 

accepted Haggard's no contest plea. 

Haggard's presentence investigation (PSI) report indicated that he had a criminal 

history score of C based on his three prior nonperson felonies and three person 

misdemeanors which were converted to one person felony. See K.S.A. 2020 Supp. 21-

6811(a) (stating that every three prior convictions for a Class A and B person 

misdemeanor should be scored as one person felony); K.S.A. 2020 Supp. 21-6809

(stating that having one person felony and at least one nonperson felony results in a 

criminal history score of C). Haggard's three person misdemeanors that were converted 

into one person felony were all municipal convictions from Salina Municipal Court. 
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The district court held Haggard's sentencing hearing on August 16, 2021, and 

found his criminal history score to be C—to which Haggard did not object. The district 

court sentenced Haggard to 27 months in prison, with 12 months of postrelease 

supervision, but ultimately suspended the prison sentence and placed Haggard on 24 

months of probation. Haggard appeals. 

DISCUSSION

Haggard concedes that he did not object to his criminal history score at the district 

court, but asserts he should be able to raise this claim for the first time on appeal because 

an illegal sentence may be corrected at any time. See K.S.A. 2020 Supp. 22-3504(a)

(stating an illegal sentence may be corrected at any time while the defendant is serving 

such sentence); State v. Dickey, 305 Kan. 217, 219, 380 P.3d 230 (2016) (allowing a 

challenge to the defendant's criminal history score for the first time on appeal). The State 

does not challenge Haggard's preservation of this claim for appeal. And this court does 

not disagree that illegal sentence claims may be brought at any time. 

The disagreement begins when Haggard contends that the State bears the burden 

to prove that he was represented by counsel, or waived that right, in his prior municipal 

convictions. In contradiction of Haggard's argument sits Kansas Supreme Court 

precedent holding that a defendant who failed to object to their criminal history score at 

or prior to sentencing then carries the burden on any subsequent appeal to demonstrate 

the invalidity of their prior conviction. State v. Roberts, 314 Kan. 316, 334-35, 498 P.3d 

725 (2021). Haggard acknowledges the precedent established in Roberts, but argues that 

it was wrongly decided and this court should ignore its holding and require the State to 

carry the burden on appeal to prove Haggard's prior municipal convictions were 

constitutionally valid. 
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In Roberts, the defendant raised the same argument Haggard now raises—that 

Roberts' sentence was illegal because the State failed to meet its burden to prove Roberts'

three prior person misdemeanors that were converted to a single person felony were 

constitutionally valid because he was represented by, or waived his right to, counsel. 314 

Kan. at 317. The Roberts court held that 

"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. 

Because Roberts failed to object to the constitutional validity of his prior misdemeanor 

convictions at or before sentencing, the court held that on appeal Roberts carried the 

burden to prove by a preponderance of the evidence that his prior convictions were 

constitutionally invalid. Because Roberts failed to satisfy that burden, the court rejected 

his claim and affirmed the appellate court's dismissal. 314 Kan. at 336. 

This court is duty bound to follow Kansas Supreme Court precedent unless there is 

some indication that the court is departing from its previous position. State v. Rodriguez, 

305 Kan. 1139, 1144, 390 P.3d 903 (2017). Haggard does not argue that the Kansas 

Supreme Court has shown an intent or propensity to depart from its holding in Roberts—

and this court finding none is bound by its holding. Because Haggard has not presented 

any evidence that his prior municipal person misdemeanors were uncounseled, he has not 

satisfied his burden to prove by a preponderance of the evidence that those convictions 

were unconstitutional. See Roberts, 314 Kan. at 334-36.
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CONCLUSION

Haggard failed to designate a record supporting his claim that his prior convictions 

used to calculate his criminal history were uncounseled. Thus, consistent with the Kansas 

Supreme Court's disposition of similar appeals, his claim is dismissed. See State v. 

Corby, 314 Kan. 794, 798, 502 P.3d 111 (2022); Roberts, 314 Kan. at 336. 

Appeal dismissed.