The opinion of the court was delivered by
We revisit
Apprendi v. New Jersey,
Travis Hitt appeals his presumptive sentence following a plea of guilty to conspiracy to commit aggravated battery. Before the Court of Appeals, Hitt argued for the first time that his juvenile adjudications should not have been included in his criminal history. He reasoned that his juvenile adjudications were the result of pro *225 ceedings in which he did not have the right to a jury trial. The Court of Appeals in an unpublished opinion affirmed the district court, deciding that Hitt’s juvenile adjudications were correctly included in his Kansas Sentencing Guidelines Act (KSGA) criminal history score. See K.S.A. 2001 Supp. 21-4704.
We granted Hitt’s petition for review to resolve this first impression issue. K.S.A. 20-3018(b).
We hold that Hitt’s juvenile adjudications were correctly included in his KSGA criminal history score. We affirm the Court of Appeals and the district court. Hitt received a sentence within the presumptive range, the sentence is not subject to challenge on appeal, and Apprendi does not apply. See K.S.A. 21-4721(c)(l).
FACTS
Hitt was charged with aggravated battery, conspiracy to commit aggravated battery, aggravated burglary, and criminal damage to property. He agreed to plead guilty to conspiracy to commit aggravated battery in exchange for the State’s agreement to dismiss the remaining charges. Hitt was on a felony bond for burglary of a non-dwelling when his actions resulting in the charges here occurred. The State also agreed to remain silent on the issue of whether the sentence for the instant crime should run consecutive to or concurrent with the sentence on the burglary charge. The district court accepted Hitt’s guilty plea.
Hitt’s criminal history included one juvenile person felony, four juvenile nonperson felonies, one juvenile nonperson misdemeanor, and one adult nonperson felony. He did not object to the corresponding criminal history score of “C.” The severity level of the crime combined with Hitt’s criminal history score resulted in a presumptive prison term of 34 to 38 months. Hitt filed a motion for downward dispositional and/or durational departure. At sentencing, he asked the court to place him on probation. The district court denied Hitt’s motion for departure and sentenced him to 38 months’ imprisonment, to run consecutive to the sentence imposed on the burglary.
DISCUSSION
Hitt argues that juvenile adjudications included in a criminal history score increase the penalty for a crime beyond the pre *226 scribed statutory maximum. He reasons that under Apprendi, juvenile adjudications must be charged in the indictment and proven to a jury beyond a reasonable doubt. Because the KSGA provides that juvenile adjudications may be included in the criminal history score absent these requirements, Hitt contends the KSGA is unconstitutional on its face and as applied to his sentence.
Though Hitt fails to target a specific statute, he presumably refers to K.S.A. 21-4710(a), which provides in part:
“Criminal history categories contained in the sentencing guidelines grid for nondrag crimes ... are based on the following types of prior convictions: . . . person felony juvenile adjudications, nonperson felony juvenile adjudications . . . person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications . . . [and] select class B nonperson misdemeanor juvenile adjudications . . . .”
While not central to our analysis, K.S.A. 21-4709, K.S.A. 2001 Supp. 21-4711, and K.S.A. 2001 Supp. 21-4714(b)(5) also mention the use of prior juvenile adjudications in a defendant’s criminal history score.
We begin our analysis by acknowledging the appropriate standard of review. A constitutional attack on a statute presents a question of law subject to unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity. If there is any reasonable way to construe the statute as constitutionally valid, we should do so.
State v. Heironimus,
Hitt’s Argument
In
Apprendi,
the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
He relies on
State v. LaMunyon,
Hitt’s more significant argument is that Apprendi’s concern with the right to a jury determination of factors increasing a sentence removes juvenile adjudications from the prior conviction exception because there is no right to jury trial in juvenile matters.
Apprendi’s Prior Conviction Exception
To understand
Apprendi’s
treatment of the prior conviction exception, we must first consider
Almendarez-Torres v. United States,
In considering the constitutional implications, the
AlmendarezTorres
Court reasoned that “the sentencing factor at issue here— recidivism — is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”
The conclusion in
Almendarez-Torres
was later put into context in
Jones v. United States,
Jones
concluded that the carjacking statute as written established three separate offenses by its specification of distinct elements, each of which must be charged in the indictment and proven to a jury beyond a reasonable doubt.
“Almendarez-Torres . . . stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged. But the case is not dispositive of the question here, not merely because we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez-Torres, but because the holding last Term *229 rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment. The Court’s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend die range of possible sentencing. [Citations omitted.] One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.”526 U.S. at 248-49 .
With this background we turn to
Apprendi.
The Court in
Apprendi
was not faced with the issue of whether the defendant’s prior convictions could be used to increase his sentence. Rather, Apprendi challenged the use of the trial court’s finding that the crime was committed with a biased purpose to enhance his sentence for possession of a firearm. In the shadow of
Jones,
Apprendi argued that the existence of a biased purpose was an element of the crime that, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, must be proven to a jury beyond a reasonable doubt. The Court agreed, concluding that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
The
Apprendi
Court acknowledged that in
Almendarez-Torres
it had approved of the use of the fact of a prior conviction to enhance the defendant’s sentence even absent a jury finding as to the existence of the conviction beyond a reasonable doubt.
The pedigree of the prior conviction exception makes clear that it is rooted in (1) the historical use of recidivism as the “most traditional” factor supporting the sentencing court’s increase of a criminal sentence, rather than functioning as an element of a crime to be set out in an indictment; and (2) the notion that a prior conviction, unlike any other so-called sentencing factor, is cloaked in substantial procedural safeguards.
The question becomes whether the absence of the jury trial safeguard in juvenile adjudications is enough to remove it from the narrow exception for prior convictions built into the Apprendi rule.
*230 Post-Apprendi Analysis
Our search for an answer to the above question leads us to
U.S. v. Tighe,
Tighe appealed, arguing in part that the provision for a 15-year mandatory minimum sentence rendered the ACCA unconstitutional on its face under Apprendi. The Ninth Circuit Court of Appeals quickly disposed of the argument, citing Apprendi and Almendarez-Torres and concluded:
“Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. [Citations omitted.] Accordingly, we affirm the district court’s holding that ACCA is constitutional on its face.”266 F.3d at 1191 .
The as-applied challenge was another matter. The majority began its analysis with the admission that Tighe’s argument had little surface appeal.
“At first blush, it may appear that Tighe’s 1998 juvenile adjudication, which Congress has characterized as a prior conviction’ for the purposes of ACCA, falls precisely within Apprendi’s exception for ‘the fact of a prior conviction,’ thus foreclosing Tighe’s argument that the use of that adjudication at sentencing to increase his maximum penalty violated Apprendi. Such an analysis, however, ignores the significant constitutional differences between adult convictions and juvenile adjudications. [Citations omitted.] Neither Apprendi, nor Almendarez-Torres — the case upon which Apprendi relied to create the ‘prior conviction’ exception to its general rule — specifically addressed the unique issues that distinguish juvenile adjudications from adult convictions, such as the lack of a right to a juiy trial in most juvenile adjudications.”266 F.3d at 1192-93 .
*231 After a review of Almendarez-Torres Jones, and Apprendi, the Tighe majority concluded:
“[T]he prior conviction’ exception to Apprendi s general rale must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable doubt burden of proof, therefore, do not fall within Apprendi s ‘prior conviction’ exception.”266 F.3d at 1194 .
The
Tighe
dissent pointed out that the Ninth Circuit had previously declared the 15-year mandatory minimum sentence component of the ACCA to be a penalty enhancement. Thus, the dissent concluded that the three prior convictions were not'elements of the crime and need not be included in the indictment or proven to a jury beyond a reasonable doubt.
More relevant to our discussion, however, is the dissent's criticism of the majority's interpretation of Jones. The dissent repeated an essential passage from Jones:
“ ‘One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.’ ”266 F.3d at 1200 (quoting Jones,526 U.S. at 249 .).
The dissent then remarked:
“I do not believe the language plucked from Jones provides sufficient authority to overrule (albeit implicitly) this court’s decision in Williams, nor do I think the majority’s attempt to distinguish Williams is valid. In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a juiy trial. For juveniles, it does not. Extending Jones’ logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the *232 juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.”266 F.3d at 1200 .
The Juvenile Justice Code
The special treatment of juvenile offenders because of age is not an inherent or constitutional right but rather results from statutoiy authority.
State v. Coleman,
There is, however, no right to jury trial. K.S.A. 38-1656 states:
“In all cases involving offenses committed by a juvenile which, if done by an adult, would make the person hable to be arrested and prosecuted for the commission of a felony, the judge may order that the juvenile be afforded a trial by jury. Upon the juvenile being adjudged to be a juvenile offender, the court shall proceed with sentencing.”
We have held that there is no federal or state constitutional right to jury trial in juvenile proceedings.
State v. LaMunyon,
The advent of the KSGA, with its calculation of sentences based on the severity level of the crime and the defendant’s criminal history score, brought into question whether juvenile adjudications could be considered in calculating criminal history. Clearly, the legislature intended it to be so, as reflected in the plain language
*233
of K.S.A. 21-4710(a). The constitutionality of this practice was challenged in
LaMunyon,
LaMunyon
In
LaMunyon,
we acknowledged that the KSGA expressly requires inclusion of juvenile adjudications in a criminal history score.
“The fact that a juvenile adjudication is not a ‘criminal act’ has not been interpreted to mean that a juvenile adjudication can have no impact upon the sentence for a subsequent ‘criminal conviction.’ Considering a juvenile adjudication in calculating an offender’s criminal history score under the KSGA does not turn that adjudication into a criminal act. The terms ‘criminal act’ and ‘criminal history score’ simply mean different things.”259 Kan. at 61 .
We recognized that
Nichols v. United States,
In LaMunyon, we likened a nonjury juvenile adjudication to an uncounseled adult misdemeanor conviction — both obtained absent rights that did not attach to the particular type of offense. We concluded:
“Here, the defendant’s juvenile adjudications were constitutional even if he had no right to a jury trial in those proceedings. Because the juvenile adjudications were not constitutionally infirm, they may be used in calculating the defendant’s criminal history score under the KSGA.”259 Kan. at 65 .
LaMunyon
was decided several years before
Apprendi
and
State v. Gould,
*234 “Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence. Apprendi, on the other hand, requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’530 U.S. at 490 . Any other procedure ‘is an unacceptable departure from tire jury tradition that is an indispensable part of our criminal justice system.530 U.S. at 497 .’ ”271 Kan. at 413 .
The Court of Appeals’ Unpublished Decision
It is against this backdrop that the Court of Appeals faced Hitt’s argument that his juvenile adjudications should not have been included in his criminal history score. The Court of Appeals first considered Apprendi, Gould, and Almendarez-Torres. These three were distinguished on the basis that in Almendarez-Torres, the defendant’s prior aggravated felony convictions were held to be elements of the crime of illegal re-entry, whereas here, the issue is calculation of a criminal history score. The Court of Appeals observed that prior juvenile adjudications are not mentioned in the Kansas statute criminalizing aggravated battery, and the criminal history score is determined according to an entirely independent statute which applies to all crimes.
Second, the Court of Appeals relied on LaMunyon to conclude that because Hitt failed to show his juvenile adjudications were unconstitutional, the adjudications were correctly included in his criminal history score.
After the Court of Appeals’ decision here,
State v. Spates,
Analysis
It is clear from a survey of the available case law that there are two schools of thought in responding to Hitt’s contention. The first follows the Tighe majority: Because juvenile offenders do not enjoy the right to a jury trial, nonjury juvenile adjudications lack the due process protections required by Apprendi-, thus, they cannot be used to increase a defendant’s sentence for a later crime. The sec *235 ond follows the Tighe dissent: If juvenile adjudications are constitutionally sound according to the more limited set of rights afforded in juvenile proceedings, they may be used to increase a defendant’s sentence for a later crime. Neither approach may be effortlessly applied to dispose of Hitt’s appeal.
While the Tighe majority opinion is worthy of our consideration, we are not bound by its conclusions. A decision to exclude nonjury juvenile adjudications from the criminal history score, even limited to a prospective application, would have an unprecedented effect on the sentences of an untold number of criminal defendants. The practical impact of such a decision would rival and potentially exceed that of Gould. There, a relatively limited number of criminal defendants “in the pipeline” had received an upward departure sentence. Here, it would appear that far more defendants have a criminal history score bolstered by juvenile adjudications. To remove juvenile adjudications from the KSGA calculation would require the resentencing of many and result in lighter sentences for them and future defendants.
More importantly, in Gould, the dictates of Apprendi clearly applied to the Kansas departure statute. Here, neither Apprendi nor any other binding case precedent clearly or cleanly applies to the issue at hand. It is difficult to justify upending the KSGA without an unmistakable mandate from the United States Supreme Court.
We reason, first, that
Almendarez-Torres
made clear that prior convictions are the most traditional basis for a court’s decision to increase a sentence. Second,
Jones,
while not directly on point, did emphasize that
Almendarez-Torres
was based in large part on the historical role of recidivism in sentencing. Third,
Apprendi
clearly carved out an exception for prior convictions. The
Apprendi
Court, while not entirely at ease with the exception, was comforted by “the certainty that procedural safeguards attached to any Tact’ of prior conviction.”
The Apprendi Court spoke in general terms of the procedural safeguards attached to a prior conviction. It did not specify all procedural safeguards nor did it require certain crucial procedural safeguards. There is no dispute that many procedural safeguards *236 attach to juvenile adjudications under the federal and state Constitutions and also under Kansas statutes.
As a final matter, Hitt argues in passing that prior juvenile adjudications must be charged in the indictment. Though Hitt did not properly brief the issue and it might otherwise be deemed abandoned, see
State v. Brown,
The indictment argument is the same whether the criminal history involves adult convictions or juvenile adjudications. We encountered and resolved the indictment argument in
State v. Ivory,
Apprendi created an exception allowing the use of a prior conviction to increase a defendant’s sentence, based on the historical role of recidivism in the sentencing decision and on the procedural safeguards attached to a prior conviction. Juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the Apprendi exception for prior convictions encompasses juvenile adjudications. Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the KSGA. Hitt’s arguments as to the constitutionality of the KSGA and his sentence fail.
We affirm the district court and the Court of Appeals.