1

NOT DESIGNATED FOR PUBLICATION

No. 122,456

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TYRONE ANTHONY KEITH II,

Appellant.

MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed June 11, 2021.

Affirmed in part, vacated in part, and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant. 

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN and BUSER, JJ.

PER CURIAM: Tyrone Anthony Keith II appeals the trial court's revocation of his 

probation and his sentence. He argues that the trial court violated his constitutional rights 

when it revoked his probation. We disagree. Keith also argues that the trial court erred in 

scoring his criminal history. Because the presentence investigation (PSI) report does not 

contain enough information to support Keith's criminal history score and because the 

State concedes that the current information is insufficient, we vacate Keith's sentence and 

remand for resentencing. As a result, we affirm in part, vacate in part, and remand with 

directions.
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In May 2019, Keith pleaded guilty to three counts of identity theft. At sentencing, 

the trial court found Keith's criminal history score to be a D and gave Keith 18 months on 

probation with an underlying 34-month prison sentence. Keith's criminal history score 

was the result of three Missouri municipal code violations, which were classified as 

person misdemeanors and aggregated into a person felony, plus a municipal nonperson 

misdemeanor from Denver, Colorado.

In December 2019, the State moved to revoke probation, alleging that Keith had 

violated the terms of his probation by committing a new crime and by possessing a 

firearm. At a hearing on the motion, the State presented one witness, Detective Erin 

Hernandez. Hernandez, a Kansas City, Missouri property crimes detective, testified that 

she had interviewed Keith in the hospital following a car wreck. Hernandez explained 

that two vehicles had been taken from a car auction lot in Kansas City, Missouri. Keith 

was driving one of the cars and wrecked it while fleeing from transport drivers who 

worked for the car auction lot. When police arrived at the accident scene, they found a 

handgun tucked into Keith's pants. Keith objected to Hernandez' testimony based on 

hearsay, explaining that Hernandez was only reporting what other officers wrote in police 

reports. The trial court noted Keith's standing objection but overruled it.

When Hernandez interviewed Keith, he denied stealing the vehicle, insisting that 

he was test driving it. Keith tried to explain to Hernandez why he did not in fact possess a 

firearm. When Keith drove the car off the auction lot, the employees drove after him 

before the police arrived. After Keith crashed the car, they ran up to the accident site. 

Keith told Hernandez that, while these employees were keeping him there until police 

arrived, one of them placed the gun near him or threw it on the ground near him so that 

the officers would assume the gun belonged to Keith. Hernandez asked if Keith ever 

touched the gun because it had been swabbed for DNA evidence. Keith then said that it 

was his gun, but he only carried it for self-defense.
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After the State presented its evidence, the trial court found that Keith violated his 

probation by stealing a car and possessing a handgun. The trial court then made public 

safety and offender welfare findings and revoked Keith's probation.

Keith timely appeals.

Did the Trial Court Err in Revoking Keith's Probation?

Keith argues that the trial court violated his constitutional rights in three ways by 

revoking his probation. First, he argues that he was denied due process because he had 

insufficient notice to defend himself on the allegations that he had committed a new 

crime. Second, he argues that he was denied due process because the State presented only 

hearsay as evidence of the new crime. Third, Keith argues that revoking his probation for 

possessing a firearm violates his right to bear arms under § 4 of the Kansas Constitution 

Bill of Rights.

An appellate court reviews the trial court's revocation of an offender's probation 

for an abuse of discretion. State v. Coleman, 311 Kan. 332, 334, 460 P.3d 828 (2020).

The State must establish that the probationer violated the terms of probation by a 

preponderance of the evidence—or that the violation is more probably true than not true. 

Once established, the court may revoke probation in its discretion. State v. Gumfory, 281 

Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006); see State v. Lloyd, 52 Kan. App. 2d 780, 782, 

375 P.3d 1013 (2016). But see K.S.A. 2020 Supp. 22-3716 (requiring graduated sanctions 

before revocation in certain circumstances). And appellate courts review the trial court's 

factual findings for substantial competent evidence. See State v. Inkelaar, 38 Kan. App. 

2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008).
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A trial court's decision to revoke a defendant's probation and order the defendant 

to serve the underlying sentence must be exercised within the statutory framework of 

K.S.A. 2020 Supp. 22-3716. A trial court abuses its discretion when it steps outside the 

framework or fails to properly consider statutory standards. See State v. Grossman, 45 

Kan. App. 2d 420, 427, 248 P.3d 776 (2011).

When the question on appeal is whether the trial court complied with due process 

requirements when revoking probation, appellate courts have unlimited review. State v. 

Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016). A probationer at a probation violation 

hearing is not afforded the full panoply of rights due in a criminal prosecution and has no 

Sixth Amendment right to confront a witness. State v. Marquis, 292 Kan. 925, 928, 931, 

257 P.3d 775 (2011). While a probationer is entitled to a minimum of due process rights 

during a probation revocation proceeding, including the right to confront and crossexamine adverse witnesses, this right of confrontation may be dispensed with if the trial 

court finds good cause to do so. State v. Graham, 272 Kan. 2, 5-6, 30 P.3d 310 (2001).

Probation is an act of judicial leniency afforded a defendant as a privilege rather 

than a right. See State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). But once it is 

bestowed on a defendant, he or she has a liberty interest in remaining on probation and 

may only have it revoked if he or she fails to comply with conditions of probation. 

Hurley, 303 Kan. at 581. A trial court's decision to revoke probation usually involves two 

steps: (1) a factual determination that the probationer has violated a condition of 

probation; and (2) a discretionary determination as to the appropriate disposition in light 

of the proved violations. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).

Keith received adequate notice of the allegations against him.

First, Keith argues that the trial court erred in revoking his probation because the 

grounds alleged by the State were vague. Keith argues that the State never specifically 
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alleged which law Keith violated and, therefore, denied Keith his due process rights. 

Keith acknowledges that he did not raise this constitutional due process argument before 

the trial court.

Generally, an issue is not preserved for appeal unless it is first presented to the 

trial court. State v. Cheffen, 297 Kan. 689, 696, 303 P.3d 1261 (2013). There are three 

exceptions to the general rule: (1) it involves a pure legal question arising on proved or 

admitted facts that is finally determinative of the case, (2) considering it is necessary to 

serve the ends of justice or prevent the denial of fundamental rights, or (3) the trial court 

was right for the wrong reason. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 

(2015). 

Because the Due Process Clause to the United States Constitution requires 

minimum procedural safeguards before revoking an individual's probation, it implicates a 

fundamental due process right. A defendant is not entitled to the same rights owed in a 

criminal prosecution. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008); State v. 

McGill, 51 Kan. App. 2d 92, 96, 340 P.3d 515 (2015). But such minimum due process 

rights include written notice of the probation violations alleged. Gagnon v. Scarpelli, 411 

U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). The Kansas probation revocation 

statutory requirements satisfy all the constitutional due process requirements. Hurley, 303 

Kan. at 582.

On appeal, Keith cites State v. Scott, No. 115,432, 2017 WL 2210442 (Kan. App. 

2017) (unpublished opinion), as persuasive authority for adequate notice of a probation 

violation. This court held that Gary Scott's due process rights were violated when the 

State presented one reason for revoking probation (unknown drug use) but the trial court 

revoked Scott's probation for a different reason (abusing drugs legally prescribed to 

Scott). The Scott court's rationale turned primarily on Scott's ability to defend against the 

allegations. Scott did not contest the State's allegation that he was under the influence. 
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But the trial court "'moved the goal posts'" after he presented the defense that he was 

under the influence of prescription medications rather than alcohol or illegal drugs. 2017 

WL 2210442, at *5.

The trial court here did not "move the goal posts" in this way. The State gave 

notice of the acts that Keith allegedly committed with enough specificity for Keith to 

mount a defense. The motion to revoke probation alleged the following:

"Per Kansas City Missouri police report #KC19091463 from incident dated December 1, 

2019, the defendant was booked on a 24-hour investigative hold for a stolen auto 

following a motor vehicle crash. It was also noted that the defendant, who has a 

suspended driver's license, was the sole occupant of the vehicle."

This case is unlike Scott, but like McGill. On appeal, Dajuan McGill argued that 

his due process rights were violated because there was no specific allegation that he had 

committed a new crime. Instead, the warrant alleged that "[o]n 4/25/13 and 5/6/13, the 

defendant provided false paychecks to his ISO." 51 Kan. App. 2d at 97. Importantly, this 

statement does not name a crime or specify the elements of the crime. Nevertheless, the 

trial court found that McGill committed the crime of making a false information and 

revoked his probation. This court held that he received proper notice of the probation 

violation and had received the minimum due process rights required. 51 Kan. App. 2d at 

97.

Just as in McGill, the State here alleged facts rather than a specified crime. Keith 

fails to cite authority to support his argument that the State must include the statute which 

Keith violated in committing a new crime. The terms "stolen auto" and "suspended 

driver's license," when coupled with the reference to the police reports and the dates these 

crimes allegedly happened, provided Keith with sufficient notice of the State's allegations 

of new crimes.
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The trial court did not rely on unsubstantiated and unreliable hearsay.

Second, Keith argues that the trial court erred by revoking his probation based 

solely on unsubstantiated hearsay. He correctly notes that the State's only witness had no 

first-hand knowledge of Keith committing the alleged new crimes and restated what other 

officers had reported about the incident. The witness' only direct knowledge was based 

on the interview she conducted with Keith in the hospital the next day when he admitted 

to possessing a firearm. Keith objected to the hearsay, but the trial court overruled the 

standing objection without explaining why.

In a probation revocation hearing, the trial court may for good cause dispense with 

the probationer's right to confront witnesses. Graham, 272 Kan. at 6; see State v. Yura, 

250 Kan. 198, 207-08, 825 P.2d 523 (1992); State v. Palmer, 37 Kan. App. 2d 819, 825-

26, 158 P.3d 363 (2007). In deciding whether good cause exists, the trial court must 

evaluate: (1) the State's explanation for the impracticality or undesirability of bringing 

the witness and (2) the reliability of the evidence offered in place of in-person testimony. 

37 Kan. App. 2d at 826.

On appeal, Keith asserts that the trial court erred in relying on unsubstantiated and 

unreliable hearsay to revoke his probation. He claims the hearsay at issue here falls short 

of the standard set in Graham. In Graham, a probation officer, who was certified to 

conduct urinalysis testing, testified that Graham field-tested positive for drugs. "The 

probation officer substantiated the unadmitted LabCorp reports, giving the reports a 

substantial indicia of reliability." 272 Kan. at 6-7.

Here, Detective Hernandez' interview with Keith and her later interviewing 

testimony at the probation revocation hearing substantiated the unadmitted police reports, 

giving the reports a substantial indicia of reliability. Indeed, Keith's statements to 

Detective Hernandez substantiated his firearm possession when he admitted that he 
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carried the firearm for self-defense in his interview with Hernandez. Also, Keith 

substantiated the fact that he took the vehicle when he told Hernandez that he thought he 

was test driving the car. Thus, when Keith told Hernandez that he believed he was test 

driving the car, he implicitly conceded that he had possession of the car. Also, Keith's 

statement to Hernandez that auction employees chased him down substantiates the 

allegation that he did not have permission to drive the vehicle. Thus, the trial court did 

not rely on unsubstantiated and unreliable hearsay in revoking Keith's probation.

No possession of a weapon as a condition of probation

As with Keith's due process argument about sufficient notice of the allegations 

against him, Keith concedes that he did not challenge the constitutionality of the 

probation condition. His failure is important because constitutional grounds for reversal 

asserted for the first time on appeal are not properly before an appellate court for review. 

There are some exceptions to this general rule, which we previously set out in this 

opinion. But Keith failed to specifically argue an exception and reasons why we should 

consider this issue.

As an example, Keith argues that the trial court erred in revoking his probation 

because the condition of probation which requires him not to possess a firearm is in 

violation of his constitutional rights under § 4 of the Kansas Constitution Bill of Rights. 

In support of his argument, Keith provides only conclusory assertions and one 

substantive citation to a 1905 case which interpreted a previous version of § 4. 

Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires an appellant to 

explain why an issue that was not raised below should be considered for the first time on 

appeal. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). In Godfrey, 301 Kan. 

at 1043-44, and State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), our 

Supreme Court warned that Supreme Court Rule 6.02(a)(5) would be strictly enforced, 
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and litigants who failed to comply with this rule risked a ruling that the issue is 

improperly briefed, and the issue will be deemed waived or abandoned. See State v. 

Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Thus, we conclude that this issue is 

waived or abandoned.

Did the Trial Court Err in Calculating Keith's Criminal History?

Keith argues that the trial court improperly scored his criminal history, resulting in 

a longer underlying prison sentence. The State agrees that the trial court erred in 

calculating Keith's criminal history score. Because the PSI report did not contain enough 

information for an accurate criminal history score, this court should remand for a hearing 

to determine the correct criminal history score.

Appellate courts can review a claim that the sentencing court erred in classifying a 

prior conviction on appeal from a judgment of conviction. K.S.A. 2018 Supp. 21-

6820(e)(3). Classification of prior convictions for criminal history purposes involves 

interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 

Supp. 21-6801 et seq. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). 

Statutory interpretation is a question of law subject to unlimited review. 307 Kan. at 555. 

The State has the burden of establishing criminal history by a preponderance of 

the evidence. K.S.A. 2018 Supp. 21-6814; State v. Ewing, 310 Kan. 348, 359, 446 P.3d 

463 (2019).

Keith argues that his Missouri municipal ordinance violations cannot be used to 

calculate his criminal history. First, he argues that the State failed to prove his criminal 

history score by a preponderance of the evidence. Second, he argues that his Missouri 

municipal ordinance violations are not "out-of-state convictions" as defined by K.S.A. 

2018 Supp. 21-6811(e). Third, he argues that they are not crimes.
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The State concedes the first point: it failed to prove Keith's criminal history by a 

preponderance of the evidence. The State asks us to remand this case to the trial court to 

determine if Keith's criminal history was properly scored. Keith asks this court to instead 

assign a criminal history score of I and remand for resentencing.

Keith's Missouri municipal ordinance violations are considered "out-of-state 

convictions."

Keith committed his crimes in March 2019, so the law in effect at that time 

controls his sentence. Under the KSGA, a defendant's sentence depends on the crime of 

conviction and the defendant's criminal history score. K.S.A. 2018 Supp. 21-6804(d). The 

KSGA counts "[o]ut-of-state convictions" in a defendant's criminal history score. K.S.A. 

2018 Supp. 21-6811(e). "Out-of-state convictions" are "[c]onvictions or adjudications 

occurring within the federal system, other state systems, the District of Columbia, [and] 

foreign, tribal or military courts." K.S.A. 2018 Supp. 21-6811(e)(4).

Keith contends that Missouri municipal ordinance violations are not included in 

the K.S.A. 2018 Supp. 21-6811(e) list of out-of-state convictions. He argues that he was 

convicted in a municipal court rather than a Missouri state court, and so his convictions 

were not from "other state systems." He also argues that the convictions cannot be 

considered "foreign" under the plain meaning of K.S.A. 2018 Supp. 21-6811(e)(4).

But Keith's argument fails because Missouri municipal courts are part of the 

Missouri "state system." First, Mo. Rev. Stat. § 479.010 states the following: "Violations 

of municipal ordinances shall be heard and determined only before divisions of the circuit 

court." Therefore, the municipal court which heard and determined Keith's municipal 

ordinance violations is a division of the Missouri circuit court. Second, in defining the 

duties and powers of a municipal judge, Mo. Rev. Stat. § 479.070 clarifies that the docket 

and records kept by a municipal judge are records of the circuit court. Finally, Mo. Rev. 
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Stat. § 479.200 assigns an appeal from a municipal court bench trial to the circuit court. 

The defendant has a right of trial de novo before a circuit judge or associate circuit judge. 

In short, by law, the municipal court is a division of the Missouri circuit court. Thus, 

Missouri municipal courts fall under the "other state systems" category in K.S.A. 2018 

Supp. 21-6811(e)(4).

Keith's Missouri municipal ordinance violations cannot be classified based on the 

PSI report in the record.

Keith argues that his municipal ordinance violations cannot count in his criminal 

history score because they are not crimes under Missouri law. The State concedes that 

they were not properly counted, but disputes that they could not be properly counted. The 

record does not contain enough information to classify Keith's prior convictions because 

the record does not show whether Keith's convictions were misdemeanors or ordinance 

violations.

Classifying an out-of-state conviction for criminal history purposes is a two-step 

process. The trial court must first classify the crime as a felony or misdemeanor, 

according to the convicting jurisdiction. Then, the trial court classifies the crime as either 

a person or nonperson crime. Here, Keith disputes the classification of his convictions as 

misdemeanors. K.S.A. 2018 Supp. 21-6811(e) describes the process as follows:

"(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to 

the convicting jurisdiction.

(A) If a crime is a felony in the convicting jurisdiction, it will be counted as a felony in 

Kansas.

(B) If a crime is a misdemeanor in the convicting jurisdiction, the state of Kansas shall refer 

to the comparable offense under the Kansas criminal code in effect on the date the current crime 

of conviction was committed to classify the out-of-state crime as a class A, B or C misdemeanor. 

If the comparable offense in the state of Kansas is a felony, the out-of-state crime shall be 
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classified as a class A misdemeanor. If the state of Kansas does not have a comparable offense in 

effect on the date the current crime of conviction was committed, the out-of-state crime shall not 

be used in classifying the offender's criminal history.

(C) If a crime is not classified as either a felony or a misdemeanor in the convicting 

jurisdiction, the state of Kansas shall refer to the comparable offense under the Kansas criminal 

code in effect on the date the current crime of conviction was committed to classify the out-ofstate crime as either a felony or a misdemeanor. If the state of Kansas does not have a comparable 

offense in effect on the date the current crime of conviction was committed, the out-of-state crime 

shall not be used in classifying the offender's criminal history."

Keith asserts that Missouri municipal ordinance violations are not "crimes" and, 

thus, they cannot be included in his criminal history score under K.S.A. 2018 Supp. 21-

6811(e). Keith points to several Missouri cases to show that, under Missouri law, 

ordinance violations are only quasi-criminal and are not considered crimes. Keith further 

cites this court's statement in State v. Guenther, No. 116,386, 2018 WL 2073521 (Kan. 

App. 2018) (unpublished opinion). This court ruled that "because Guenther's Missouri 

ordinance violations contain no language classifying them as either misdemeanors or 

felonies and are considered quasi-criminal under Missouri law, the trial court erred by 

using Guenther's violations for criminal history purposes." (Emphasis added.) 2018 WL 

2073521, at *12. Finally, Keith correctly cites our Supreme Court's decision in State v. 

Smith, 309 Kan. 929, 441 P.3d 472 (2019). He argues that our Supreme Court has ruled 

that Missouri municipal ordinance violations are not crimes under Missouri law and are 

not properly included in criminal history calculations.

But our Supreme Court in Smith addressed only municipal ordinance violations 

which were neither felonies nor misdemeanors in the convicting jurisdiction. Robin 

Smith argued that her Lake Lotawana, Missouri ordinance violation for endangering the 

welfare of a child was not a criminal conviction because Missouri considers municipal 

ordinance violations only quasi-criminal. Our Supreme Court reviewed K.S.A. 2015 

Supp. 21-6811(e)(2) for guidance on classifying municipal ordinance violations. The 
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Smith court also noted a more recent amendment, adding K.S.A. 2018 Supp. 21-

6811(e)(2)(C) to address when a crime is not classified as either a felony or a 

misdemeanor in the convicting jurisdiction. But the Smith court did not apply this 

amendment to Smith retroactively.

Applying K.S.A. 2015 Supp. 21-6811(e)(2), we note that the Smith court discussed 

the significance of the fact that the convicting jurisdiction classified some acts as felonies 

or misdemeanors, but not others. "When, as here, the convicting jurisdiction uses felony 

or misdemeanor classifications, the statute's plain language precludes the district court's 

designation of this offense as a misdemeanor because Smith's ordinance violation is 

neither a felony nor a misdemeanor 'according to the convicting jurisdiction.'" 309 Kan. 

at 939. The Smith court further stressed this distinction of felony or misdemeanor 

classifications versus ordinance violations. "[T]he Lake Lotawana Municipal Code, 

which is the applicable jurisdiction, cannot serve as authority for such an upgrading 

because it specifically lists some other offenses as misdemeanors—but not this one, i.e., 

endangering a child's welfare." 309 Kan. at 939. In short, K.S.A. 2015 Supp. 21-

6811(e)(2) provided no instruction for classifying offenses which were not felonies or 

misdemeanors, like Missouri municipal ordinances. Thus, the trial court in Smith erred by 

including Smith's municipal ordinance violations in her criminal history score.

The Smith court did not need to apply the 2018 amendment which addresses 

crimes that are not classified as either felonies or misdemeanors in the convicting 

jurisdiction. See K.S.A. 2018 Supp. 21-6811(e)(2)(C). But this court addressed the effect 

of the amendment in State v. Cross, No. 121,517, 2020 WL 5079891 (Kan. App. 2020) 

(unpublished opinion). Collan Leigh Cross claimed that the trial court erred by scoring 

his prior Missouri municipal ordinance violations as misdemeanors. The Cross court 

stressed that the operative word in K.S.A. 2018 Supp. 21-6811(e)(2)(C) is the word 

"crime." The Cross court's application of our Supreme Court's ruling in Smith is 

persuasive. The Cross court cited several Missouri cases stating that a municipal 
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ordinance violation is not a crime, as well as our Supreme Court's ruling in Smith that a 

Missouri ordinance violation is not a crime under Missouri law. The plain language of 

K.S.A. 2018 Supp. 21-6811(e)(2)(C) states the following: "If a crime is not classified as 

either a felony or a misdemeanor in the convicting jurisdiction . . . ." (Emphasis added.) 

But a municipal ordinance violation is not a crime in Missouri. Thus, this court vacated 

Cross' sentence and remanded for resentencing. 2020 WL 5079891, at *5.

Further, the Cross court repeated our Supreme Court's distinction between 

municipal code offenses, which are listed as misdemeanors, and offenses, which are not. 

In Smith, endangering a child's welfare was not a misdemeanor under Lake Lotawana 

Municipal Code. Similarly, the Cross court noted that the Kansas City, Missouri 

Municipal Code classified some crimes as misdemeanors, giving the example of Section 

14-60(c)(2) (second violation of failing to spay or neuter a pit bull). But the violations 

Cross committed were not classified as misdemeanors. E.g., Section 50-47 (violation of a 

protection order). In short, Missouri municipal code offenses are not crimes unless they 

contain language classifying them as either misdemeanors or felonies. See Guenther, 

2018 WL 2073521, at *12.

The trouble here is that the PSI report's column for statute/ordinance number is 

blank. Keith argues that without this information the classifications of his convictions are 

unknown, and it is impossible to determine whether his convictions were properly 

classified. The State does not argue that the trial court deduced which ordinances Keith 

violated based on the name of the crime and the jurisdiction before the court determined 

his criminal history. Instead, the State concedes that the PSI report does not provide 

enough information to support the trial court's criminal history score calculation.

Keith also argues that the PSI report does not show whether he had counsel and 

whether the sentences involved jail time. A person accused of a misdemeanor has a Sixth 

Amendment right to counsel if the sentence upon conviction involves jail time, even if 
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probation is granted. State v. Youngblood, 288 Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009). 

Thus, Keith correctly contends that the State must produce evidence that Keith had the 

benefit of counsel if his convictions were misdemeanors with the possibility of jail time.

Keith correctly argues that a remand is required, saying that "at a minimum" the 

State must show that his criminal history score is correct. Keith argues that when the 

record does not contain substantial competent evidence to support a trial court's criminal 

history classification, a remand is required to allow the trial court to determine the 

appropriate classification. See Ewing, 310 Kan. at 360; State v. Obregon, 309 Kan. 1267, 

1275-76, 444 P.3d 331 (2019). Keith is correct and the State concedes this point, 

requesting a remand for a hearing on Keith's criminal history.

But then Keith contradicts himself, claiming that this court could dispense with 

such a hearing by assigning him a criminal history score of I. This argument rests on the 

assumption that the municipal codes do not classify his convictions as misdemeanors but 

are only ordinance violations. The PSI report lists no statute/ordinance numbers. Both 

Keith and the State argue that this makes the convictions impossible to classify. 

Nevertheless, Keith assumes that the Missouri ordinance violations contain no language 

classifying them as either felonies or misdemeanors. Notably, Keith does not provide the 

ordinances or otherwise support this argument. Issues not adequately briefed are deemed 

waived or abandoned. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).

The State has the burden to show Keith's criminal history score. Keith correctly 

claims that his criminal history score would be I rather than D if the trial court did not 

count his three Missouri municipal ordinance violations. See K.S.A. 2018 Supp. 21-6804. 

If the municipal ordinance contains no language classifying the crime as a felony or 

misdemeanor, then the municipal ordinance violations cannot count toward Keith's 

criminal history score. See Cross, 2020 WL 5079891, at *4-5. As Keith correctly 
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acknowledged, a remand is required to allow the trial court to determine the appropriate 

classification. See Obregon, 309 Kan. at 1275-76.

For the preceding reasons, we vacate Keith's sentence and remand his case for a 

hearing on his criminal history score and resentencing.

Affirmed in part, vacated in part, and remanded with directions.