1 NOT DESIGNATED FOR P UBLICATION

No s . 121,662 121,679
IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.
M YLES A SHLEY D AVIS , Appell ant

. MEMORANDUM OPINION
Appeal from Saline District Court; J ARED B. J OHNSON , judge. Opinion filed Ju ly 2 , 2020

. Affirmed.

Kasper Schirer , of Kansas Appellate Defender Office, for appellant

.

Ellen Mitchell , county attorney, and Derek Schmidt , attorney general , for appellee.

B efore W ARNER , P .J., M ALONE and B RUNS , J J.

P ER C URIAM : Myles Davis appeals the sentence he received as a result of his convictions for felony stalking . He claims the district court's reliance on his previous criminal convictions to determine his sentence under the Kansas Sentencing Guidelines Act violated section 5 of the Kansas Constitution Bill of Rights . We disagree with Davis ' constitutional argument and affirm.

F ACTUAL AND P ROCEDURAL B ACKGROUND Davis pleaded no contest to two counts of felony stalking in separate cases in Saline County District Court, which have been consolidated for appeal

. In Kansas,2

sentences for most felony convictions are determined using the Kansas sentencing guidelines. K.S.A. 2019 Supp. 21

- 6801 et seq

. These guidelines calculate a person's presumptive sentencing range and disposition based on a combination of the severity level of the current offense and the person's criminal history. See K.S.A. 2019 Supp. 21

- 6804(a). T he district court found that Davis ' criminal

- history category was B because he had previously committed two person felonies. Davis did not object to this classification. The court then sentenced Davis to 14 months' imprisonment

— the middle number in the applicable sentencing grid

- box

— on eac h count , with those sentences running consecutively for a controlling term of 28 months ' imprisonment

.

D ISCUSSION The right to trial by jury is "a basic and fundamental feature of American jurisprudence." Gard v. Sherwood Construction Co. , 194 Kan. 541, 549, 400 P.2d 995 (1965)

. Since the founding of our state, s ection 5 of the Kansas Constitution Bill of Rights has s tated the right to a jury trial is "inviolate." Kan. Const. Bill of Rights, § 5

. Davis contends the district court's use of his previous convictions to determine his sentence, without first requiring the State to prove his prior convictions to a jury, violated this provision

.
Several panels of this court have recently rejected this argument . See 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. Haskell , No. 121,280, 2020 WL 1222941 (Kan. App. 2020) (unpublished opinion); State v. Albano , No. 120,767, 2020 WL 1814326, at *6

- 11 (Kan. App. 2020) , petition for rev. filed May 6, 2020 ; State v. Biurquez , No. 121,197, 2020 WL 288532 (Kan. App. 2020) (unpublished opinion); State v. Valentine , No. 119,164, 2019 WL 2306626 , at *6 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1070 ( 2019)

.3

A lthough we are not bound by these previous decisions, we agree with their analysis and reach the same conclusion here

.

A s a preliminary matter, a ppellate courts generally do not have jurisdiction to review a presumpti ve sentence under the Kansas sentencing guidelines

— like the sentence Davis received here. K.S.A. 2019 Supp. 21

- 6820(c)(1); State v. Johnson , 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008) . And Davis' failure to raise this issue before the district court also wo uld normally preclude appellate review. See State v. Cheffen , 297 Kan. 689, 698, 303 P.3d 1261 (2013)

. We choose to consider Davis' constitutional claim in this instance, however , because it is a purely legal challenge to the Kansas sentencing framework an d implicates his fundamental right to a trial by jury. See State v. Love , 305 Kan. 716, 734, 387 P.3d 820 (2017) ; State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014) ; Johnson , 286 Kan. at 842

. Our review over such questions is unlimited. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018)

.
Section 5 of the Kansas Constitution Bill of Right states that "[t]he right of trial by jury shall be inviolate." Kan. Const. Bill of Rights, § 5

. T he Sixth Amendment to the United States Constitution similarly provides that " [i]n all criminal prosecutions , the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. " U.S. Const. amend. VI ; see also U.S. Const. amend VII (providing a right to a jury trial in civil cases).

T he United States Supreme Court has long rejected the argument Davis now raises under the federal Constitution, finding the Sixth Amendment do es not prohibit a court from using a defendant's criminal history to enhance a presumptive punishment. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed

. 2d 435 (2000) ; State v. Watkins , 306 Kan. 1093, 1094, 401 P.3d 607 (2017) ; State v. Johnson , 304 Kan. 92 4, 956, 376 P.3d 70 (2016) ; State v. Overman , 301 Kan. 704, 716

- 17, 348 P.3d 516 (2015) ; State v. Adams , 294 Kan. 171, 184

- 85, 273 P.3d 718 (2012) ; State v. Ivory , 2734

Kan. 44, 45

- 48, 41 P.3d 781 (2002) ( r ejecting arguments that this practice violates the United States Constitution )

. Recognizing this adverse precedent , Davis asserts his claim under the Kansas Constitution , contending the jury

- trial right under section 5 provides a broader protection than its federal counterpart

.
Our constitutional analysis begins with the recognition that a challenged statut ory framework

— like the Kansas sentencing guidelines

— "comes before the court cloaked in a presumption of constitutionality." Leiker v. Gafford , 245 Kan. 325, 364, 778 P.2d 823 (1989). T he party asserting a constitutional claim must prove the law clearly violates the C onstitution. See 245 Kan. at 36 4. In the context of this case, that means Davis must prove (1) that section 5 of the Kansas Constitution Bill of Rights provides different protection s from the Sixth Amendment and (2) that the criminal

- history provisions of the sentencing guidelines violate that state

- law right.

It is true, as Davis points out, that there are textual differences between the Kansas and federal jury

- trial provisions . And it is also true that Kansas courts may construe Kansas constitutional provisions independently from their federal counterparts . Se e generally Hodes & Nauser, MDs v. Schmidt , 309 Kan. 610, Syl. ¶¶ 3, 6, 440 P.3d 461 (2019) (construing section 1 of the Kansas Constitution Bill of Rights as providing different protection from the privacy protections under the United States Constit ution). But Kansas courts have long recognized such a practice is the exception to the rule. Instead, courts have traditionally found the rights provided by our state charter to be coextensive with federal constitutional protections, " notwithstanding any textual, historical, or jurisprudential differences. " State v. Lawson , 296 Kan. 1084, 1091, 297 P.3d 1164 (2013)

.
For this reason, our Kansas Supreme Court has indicated that anyone advocating a different reading of a Kansas const itutional provision from its federal counterpart must "explain why [Kansas courts] should depart from [their] long history of coextensive5

analysis of rights under the two constitutions." State v. Boysaw , 309 Kan. 526, 538, 439 P.3d 909 (2019) . Thus, Davis must articulate something in "the history of the Kansas Constitution or in our caselaw that would suggest a different analytic framework" should apply for the jury

- trial right. See 309 Kan. at 536.

Davis does not make this required showing. Instead, he argues that Kansas should extend the rationale articulated in Justice Thomas' concurrence in Apprendi , which cited cases from other states predating Kansas statehood that required evidence of prior

con victions to be presented to a jury. See Apprendi , 530 U.S. at 501

- 09 (Thomas, J., concurring).

We do not find this argument compelling for a number of reasons. In particular, we find no support for Davis' claim that a person's criminal history was a fact tried to a jury when the Kansas Constitution was adopted. And more importantly, the Kansas Supreme Court has consistently treated the jury

- trial right under the Kansas Constitution as coextensive with its federal counterpart, and Davis fails to apprise us of a reason we can or should depart from this precedent.

"' Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence. '" Love , 305 Kan. at 734 . Whe n considering a section 5 challenge, we engage in a two

- part analysis, asking: (1) " In what types of cases is a party entitled to a jury trial as a matter of right? " ; and (2) " when such a right exists, what does the right protect? " 305 Kan. at 735 . The first prong of this analysis is already answered, as a defe ndant in a criminal case is entitled to a jury trial as a matter of right

. 305 Kan. at 736

. Turning to the second prong , the jury trial right provided in section 5 "' applies no further than to give the right of such trial upon issues of fact so tried at co mmon law

. '" 305 Kan. at 735

.6

In Albano , 2020 WL 1814326, at *8

- 11 , this court examined the same argument Davis raises regarding Justice Thomas' concurrence and concluded it was not supported by Kansas history or precedent

. Albano found that the case s cited by Justice Thomas in his concurrence (and now relied on by Davis) failed to demonstrate a common
- law right for a jury to determine a defendant's criminal history. 2020 WL 1814326, at *9

- 10

. The panel also noted that the United States Supreme Court's long acceptance of recidivist laws cuts against the e xistence of a common

- law right to have a jury determine criminal history :

"The United States Supreme Court has continually recognized that allowing a judge to consider prior convictions at sentencing ' is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. ' Almendarez

- Torres v. United States , 523 U.S. 224, 243, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) . In fact, the Court acknowledged that recidivist laws ' have a long tradition in this country .

. . dat[ing] back to colonial times ' and ' a charge under a recidivism statute does not state a separate offense, but goes to punishment only. ' Parke v. Raley , 5 06 U.S. 20, 26

- 27, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992) . Thus, there is authority supporting the converse of Albano's proposition: that judges historically could find prior convictions because prior convictions were not a separate offense that needed t o be proved to a jury." Albano , 2020 WL 1814326, at *10

. And perhaps most telling for purposes of our analysis, the Kansas Supreme Court declined 85 years ago to hold that the Kansas Constitution requires a jury to determine criminal history. See Albano , 2020 WL 1814326, at *6

- 11

. In Levell v. Simpson , 142 Kan. 892, 52 P.2d 372 (1935) , the defendant challenged his sentence , arguing he had a right under the state and federal C onstitutions to have a jury determine w hether he had prior convictions . T he Kansas Suprem e Court definitively stated the defendant " had no such privilege under Kansas law. " 142 Kan. at 894

.7

O ther Kansas Supreme Court cases similarly indicate section 5 provides the same protection as the federal jury

- trial right. Indeed, section 10 of the Kansas Constitution

— which provides multiple protections for a defendant in a criminal case, including the right to a trial by impartial jury

— has been consistently found to be coextensive with the Sixth A mendment . See State v. Carr , 300 Kan. 1, 56, 331 P.3d 544 (2014) ( " We have not previously analyzed our state constitutional language differently from the federal provision. " ), rev'd and remanded on other grounds 577 U.S.

___ , 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) ; In re Clancy , 112 Kan. 247, 249, 210 P. 487 (1922)

. Because " section 10 encompasses section 5 's jury trial right and section 10 provides the same protection as the Sixth Amendment, it is a reasonable inference that section 5 's jury trial right is also interpreted the same as the Sixth Amendment to the United States Constitution. " Albano , 2020 WL 1 814326, at *8

.
Davis has not articulated any other explanation for the existence of such a right at common law . Nor has he explained why he believes the Kansas Supreme Court would depart from its controlling interpretation of the Kansas jury

- trial right. Accord State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017) (Kansas Court of Appeals is duty

bound to follow Kansas Supreme Court precedent). W e thus see no reason to disagree with Albano 's conclusion that "Kansas' position has always been that, under the state constitution, a defendant does not have a right to have a jury determine prior convictions for sentencing purposes." Albano , 2020 WL 1814326, at *11

.

Affirmed.