State v. Roberts, 314 Kan. 316

Background

Roberts pleaded guilty under a global plea to drug and weapon charges in two cases; PSI reports listed three 2010 Wichita municipal misdemeanors (domestic battery and two protective-order violations) that were aggregated under K.S.A. 21-6811(a) into a person felony, raising his criminal-history score from C to B.
The PSI did not indicate whether Roberts had counsel or waived counsel in those municipal proceedings; applicable municipal ordinances exposed him to possible jail time.
At sentencing Roberts admitted the criminal-history score and made no written objection under K.S.A. 21-6814(c); the court accepted the B score and imposed sentences but granted downward dispositional departures to probation.
Roberts later violated probation; the district court revoked probation and imposed the underlying prison terms; he appealed, arguing (inter alia) the State failed at sentencing to prove the prior misdemeanors were counseled or that he validly waived counsel.
The Court of Appeals rejected Roberts’ illegal-sentence claim, holding the State satisfied its initial burden via the PSI and Roberts’ admission, and that Roberts’ failure to object shifted the burden to him to prove the prior convictions were uncounseled.
Kansas Supreme Court granted review on the illegal-sentence (burden-of-proof) issue and affirmed the Court of Appeals: because Roberts did not object at or before sentencing under K.S.A. 21-6814(c), he bears the burden on direct appeal to prove the prior convictions were constitutionally invalid.

Issues

Issue	Plaintiff's Argument (Roberts)	Defendant's Argument (State)	Held
Whether the State had to prove at sentencing that the three prior municipal misdemeanors were counseled or validly waived	State must prove the constitutional validity of prior convictions used to enhance sentence; PSI silence is insufficient	Summary PSI satisfies State's burden absent a written objection under K.S.A. 21-6814(c); failure to timely object shifts burden to defendant	Where defendant admitted history and made no timely K.S.A. 21-6814(c) objection, the PSI/admission satisfied the State and the burden shifted to defendant to prove invalidity by preponderance
Whether a first-time-on-appeal (direct) challenge to prior convictions differs from a collateral attack for burden allocation	On direct appeal State still must carry burden to prove validity	If defendant failed to object at sentencing, the burden shifts to defendant even on direct appeal	No distinction: failure to object at or before sentencing shifts burden to defendant on direct appeal as well
Whether a person accused of a misdemeanor has Sixth Amendment right to counsel when imprisonment (even if suspended) is possible	Roberts: such a right exists for these municipal offenses	State did not dispute the governing law	Confirmed: Sixth Amendment right to counsel applies when incarceration is a possible punishment (Alabama v. Shelton; Youngblood)
Whether uncounseled municipal misdemeanor convictions can be used to enhance a later sentence	Roberts: uncounseled convictions cannot be collaterally used to enhance a later sentence	State: presumption of regularity attaches to final judgments and defendant must rebut if he failed to timely object	Uncounseled misdemeanors cannot be used to enhance—however, if defendant failed to timely object under K.S.A. 21-6814(c), defendant must prove they were uncounseled; Roberts failed to do so

Key Cases Cited

Parke v. Raley, 506 U.S. 20 (1992) (presumption of regularity attaches to final judgments; defendant bears burden on collateral attack)
State v. Patterson, 262 Kan. 481 (1997) (defendant who collaterally attacks prior convictions used for enhancement bears burden to show lack of counsel)
State v. Jones, 272 Kan. 674 (2001) (reiterating Patterson: burden on defendant in collateral challenges to prior convictions)
State v. Youngblood, 288 Kan. 659 (2009) (misdemeanant has right to counsel when jail exposure exists; State must prove valid waiver when issue timely raised)
State v. Hughes, 290 Kan. 159 (2010) (where timely challenged before sentencing, State must prove prior waivers were valid; failure requires excluding convictions)
State v. Neal, 292 Kan. 625 (2011) (defendant bears burden on postfinal motion to correct illegal sentence but must be given hearing if he presents evidence to meet that burden)
State v. Wetrich, 307 Kan. 552 (2018) (elements/comparability rule for scoring out-of-state offenses as Kansas person crimes)
State v. Obregon, 309 Kan. 1267 (2019) (PSI may be insufficient where it fails to identify which version of a divisible out-of-state statute produced the conviction)
State v. Ewing, 310 Kan. 348 (2019) (same principle as Obregon; remand for State to prove precise prior offense)
Alabama v. Shelton, 535 U.S. 654 (2002) (a suspended jail sentence that may lead to incarceration triggers Sixth Amendment right to counsel)