Printable Format21-6814. Offender's criminal history; admission in court or determined by judge; burden of proof; notice of error by offender; challenge for first time on appeal, burden of proof and procedure. (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. The state shall have the burden of proving the disputed portion of the offender's criminal history. The sentencing judge shall allow the state reasonable time to produce evidence to establish its burden of proof. If the offender later challenges such offender's criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender's criminal history by a preponderance of the evidence.
(d) If an offender raises a challenge to the offender's criminal history for the first time on appeal, the offender shall have the burden of designating a record that shows prejudicial error. If the offender fails to provide such record, the appellate court shall dismiss the claim. In designating a record that shows prejudicial error, the offender may provide the appellate court with journal entries of the challenged criminal history that were not originally attached to the criminal history worksheet, and the state may provide the appellate court with journal entries establishing a lack of prejudicial error. The court may take judicial notice of such journal entries, complaints, plea agreements, jury instructions and verdict forms for Kansas convictions when determining whether prejudicial error exists. The court may remand the case if there is a reasonable question as to whether prejudicial error exists.
History: L. 2010, ch. 136, § 295; L. 2022, ch. 73, § 4; July 1.
Source or Prior Law:
21-4715.
CASE ANNOTATIONS
1. Defendant who fails to object at sentencing to the constitutionality of a prior conviction, based on a claim of absence of counsel, used to enhance current sentence has the burden to show the prior conviction is invalid. State v. Roberts, 314 Kan. 316, 334-35, 498 P.3d 725 (2021).
2. Defendant's admission of criminal history relieves the state's burden to prove the facts supporting a criminal history score. State v. Corby, 314 Kan. 794, 797, 502 P.3d 111 (2022).
3. Under K.S.A. 2021 Supp. 21-6814(b), a presentence investigation report may be considered at sentencing by the district court to determine whether the state's burden of proof has been satisfied regarding an offender's criminal history. State v. Busch, 317 Kan. 308, 313, 528 P.3d 560 (2023).
4. A defendant's admission to their criminal history as set forth in the presentence investigation report relieves the State from having to produce additional evidence to support criminal history for sentencing purposes, and the admission includes a prior crime's person or nonperson classification as set forth in the presentence investigation report. State v. Daniels, 319 Kan. 340, 345, 554 P.3d 629 (2024).
5. Statute contemplates procedures at two stages of a criminal case: (1) The time before the sentencing judge establishes the defendant's criminal history for purposes of sentencing; and (2) any time after subsection (c) requires an offender seeking to challenge their previously established criminal history to prove their criminal history by a preponderance of the evidence. State v. Daniels, 319 Kan. 340, 345, 554 P.3d 629 (2024).