State v. Albano, 487 P.3d 750

Anita Albano was convicted by a jury of two drug-distribution offenses (severity levels 2 and 3).
At sentencing the district court, applying the Kansas Sentencing Guidelines Act (KSGA), found Albano’s criminal history score (score F) based on two prior nonperson felonies and imposed a presumptive sentence.
KSGA authorizes the court to determine criminal-history facts by judge-found facts (preponderance) or by offender admission; Albano argued this violated the Kansas Constitution Bill of Rights §5 ("The right of trial by jury shall be inviolate").
The Court of Appeals affirmed; the Kansas Supreme Court granted review to decide whether §5 preserves a common-law right (as of 1859) requiring prior convictions that enhance sentence to be proven to a jury.
The Supreme Court held §5 is assessed by reference to the common law as it existed in Kansas at adoption; historical and Kansas precedent show the jury traditionally decides guilt while the court decides punishment and related facts (including prior convictions).
Result: judicial fact-finding of criminal-history under the KSGA does not violate §5 and Albano’s challenge fails.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether KSGA’s judicial fact-finding of prior convictions for sentencing violates Kansas Const. §5	Albano: §5 preserved a common-law right (1859) requiring sentence-enhancing priors be alleged and proven to a jury beyond a reasonable doubt	State: Prior convictions that affect only punishment historically fall to the court; KSGA follows that tradition	The court held KSGA constitutional: sentence-enhancing priors for sentencing fall within the court’s traditional role, so §5 is not violated
Whether §5 must be treated as coextensive with the Sixth Amendment	Albano: §5’s text ("inviolate") and separate placement imply potentially greater protection than the Sixth Amendment	State/Ct. of Appeals: treated as coextensive with Sixth Amendment precedent (e.g., Almendarez-Torres)	The Supreme Court held §5 may be analyzed independently of the Sixth Amendment, but historical inquiry shows no Kansas common-law right to jury findings of sentence-enhancing priors in 1859; claim fails

State v. Love, 305 Kan. 716 (Kan. 2017) (section 5 scope tied to jury functions historically performed at common law)
Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior-conviction exception: Sixth Amendment does not require jury to find prior convictions that increase punishment)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be proved to a jury, but prior-conviction exception remained)
State v. Woodman, 127 Kan. 166 (Kan. 1928) (prior convictions affecting punishment fall to court; indictment need not allege prior convictions under recidivist statute)
Levell v. Simpson, 142 Kan. 892 (Kan. 1935) (no Kansas constitutional right to have prior convictions proven to a jury when used solely for sentencing; distinction if prior conviction creates a separate offense)
State v. O'Keefe, 125 Kan. 142 (Kan. 1928) (court, not jury, fixes punishment within statutory limits)
State v. Hathaway, 143 Kan. 605 (Kan. 1936) (reinforces rule that statutory penalty generally is not a jury concern)
Parke v. Raley, 506 U.S. 20 (1992) (recidivist sentencing has long tradition; treated as punishment-only)
Oyler v. Boles, 368 U.S. 448 (1962) (recidivism generally goes to punishment, not a separate offense)