State v. Albano

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,767

STATE OF KANSAS
Appellee,

v.

ANITA JO ALBANO,
Appellant.

SYLLABUS BY THE COURT

1.
Section 5 of the Kansas Constitution Bill of Rights, which declares, "The right of
trial by jury shall be inviolate," preserves the jury trial right as it historically existed at
common law when our state's Constitution came into existence.

2.
In Kansas criminal proceedings, the traditional function of the jury is to determine
the accused's guilt or innocence, and the traditional function of the court is to impose the
legally appropriate punishment.

3.
When a prior conviction is an element of a statutory offense, the issue must be
decided by a jury. But when prior convictions are considered in deciding punishment, the
issue falls within the traditional function of the court to impose the sentence.

4.
Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants
the right to have a jury determine the existence of sentence-enhancing prior convictions

1
under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-
6801 et seq.; no authority substantiates that defendants had such a jury trial right at
common law when our state Constitution was adopted.

Review of the judgment of the Court of Appeals in 58 Kan. App. 2d 117, 464 P.3d 332 (2020).
Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed May 28, 2021. Judgment of the
Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and Heather Cessna, of
the same office, was with him on the briefs for appellant.

David Lowden, deputy county attorney, argued the cause, and Kelly G. Cunningham, assistant
county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with
him on the briefs for appellee.

The opinion of the court was delivered by

WALL, J.: Anita Jo Albano was convicted of two drug offenses. In accordance
with the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-
6801, et seq., District Court Judge John Bosch imposed her sentence based, in part, on
judicial findings he made regarding her criminal history. Albano now contends the
KSGA violates section 5 of the Kansas Constitution Bill of Rights because it allows the
court to make criminal history findings for purposes of imposing a sentence, contrary to
her right to trial by jury. We disagree.

Section 5 preserves the jury trial right as it historically existed at common law
when our state's Constitution was adopted in 1859. Albano bases her constitutional
challenge on the assertion that criminal defendants had a common-law right to have
sentence-enhancing prior convictions proven to a jury at the time the Kansas Constitution
was adopted. To the contrary, Kansas law has long recognized legally significant

2
distinctions between the function of the jury and the court—in particular, that the role of
the jury is to determine the accused's guilt or innocence, and the role of the court is to
determine punishment and issues relevant to it, including prior convictions. No authority
substantiates Albano's contention that our state had adopted a common-law rule
inconsistent with this traditional division of functions when the Kansas Constitution was
adopted in 1859. Therefore, these traditional function-defining boundaries provide a
proper measure of the scope of protection afforded under section 5. Because criminal
history findings made for purposes of imposing a sentence falls within the exclusive
purview of the court to determine punishment, the KSGA's method of determining a
defendant's criminal history does not implicate section 5's right to trial by jury.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Albano of two counts of distribution of a controlled substance
within 1,000 feet of a school. One count was a severity level 2 drug felony and the other
count was a severity level 3 drug felony. At sentencing, the district court found she had a
criminal history score of F based on two prior nonperson felony convictions as reflected
in her presentence investigation report. The court imposed a controlling term of 101
months' imprisonment, which was the mitigated term in the presumptive sentencing range
based on her criminal history score and her conviction for a severity level 2 drug offense.
Albano appealed.

For the first time on appeal, Albano raised her section 5 challenge to the KSGA.
She also argued the district court made several instructional errors at her jury trial. The
Court of Appeals rejected Albano's claims and affirmed her convictions and sentence.
State v. Albano, 58 Kan. App. 2d 117, 464 P.3d 332 (2020). We granted Albano's petition
for review to address her section 5 challenge to the KSGA.

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 ANALYSIS

Jurisdiction

We note that Albano received a presumptive sentence under the KSGA.
Ordinarily, appellate courts do not have jurisdiction to review presumptive sentences. See
K.S.A. 2020 Supp. 21-6820(c)(1). But we have recognized an exception for cases in
which the defendant challenges the constitutionality of the overall statutory sentencing
scheme rather than the defendant's individual sentence. See State v. Huerta, 291 Kan.
831, 840, 247 P.3d 1043 (2011); State v. Johnson, 286 Kan. 824, 842, 190 P.3d 207
(2008). Albano is challenging the KSGA itself, rather than her individual sentence.
Therefore, her constitutional challenge is not subject to the jurisdictional bar set forth in
K.S.A. 2020 Supp. 21-6820(c)(1). Jurisdiction is proper. See K.S.A. 20-3018(b) (petition
for review of Court of Appeals decision); K.S.A. 60-2101(b) (providing Supreme Court
jurisdiction over cases subject to review under K.S.A. 20-3018).

Legal Framework and Standard of Review

Albano brings her constitutional challenge to the KSGA under section 5 of the
Kansas Constitution Bill of Rights, which provides: "The right of trial by jury shall be
inviolate." We have long held that this provision "does not require every trial to be by
jury. Nor does it contemplate that every issue, which, by the laws in force at the adoption
of the constitution of the state, was triable by jury, should remain irrevocably triable by
that tribunal." Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432, 1866
WL 430 (1866). Instead, "'[s]ection 5 preserves the jury trial right as it historically
existed at common law when our state's constitution came into existence.'" State v. Love,
305 Kan. 716, 734, 387 P.3d 820 (2017). The Kansas Constitution was adopted by
constitutional convention in July 1859, ratified by the electors of the State of Kansas on
October 4, 1859, and became law upon the admission of Kansas into statehood in 1861.

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See U.S.D. No. 229 v. State, 256 Kan. 232, 239, 885 P.2d 1170 (1994). Whether the
KSGA violates section 5 is a question of law subject to unlimited review. State v. Gaona,
293 Kan. 930, 957, 270 P.3d 1165 (2012).

Summary of the KSGA Framework and Section 5 Challenge

The KSGA is a graduated sentencing scheme that provides increasingly severe
presumptive sentences for most convicted felons based on the severity of the crime
committed and the defendant's criminal history. A sentencing court determines the
presumptive sentence for a given defendant by referencing one of two sentencing grids.
K.S.A. 2020 Supp. 21-6804(a) (sentencing grid for nondrug crimes); K.S.A. 2020 Supp.
21-6805(a) (sentencing grid for drug crimes). On both grids, the vertical axis reflects the
statutorily assigned severity level of the crime committed, and the horizontal axis reflects
the defendant's criminal history score. The presumptive term of imprisonment for a given
defendant is found in the grid box at the intersection of the severity level of the crime
committed and the defendant's individual criminal history score. This term is expressed in
a range of months representing the aggravated, standard, and mitigated terms. K.S.A.
2020 Supp. 21-6804(b), (d); K.S.A. 2020 Supp. 21-6805(b), (d). While the sentencing
court has discretion to sentence the defendant anywhere within this presumptive
sentencing range, the court must impose a sentence within that range unless it finds
substantial and compelling reasons to impose a departure sentence. K.S.A. 2020 Supp.
21-6804(e)(1); K.S.A. 2020 Supp. 21-6815(a).

Under this sentencing scheme, defendants with a higher criminal history score face
longer terms of imprisonment. For example, if a defendant is convicted of a severity level
2 drug offense but has no criminal history, he or she faces a presumptive sentence of 92
to 103 months' imprisonment. However, if a defendant is convicted of the same offense
and has two prior convictions for nonperson felonies, like Albano, the presumptive

5
sentencing range increases to 101 to 113 months' imprisonment. See K.S.A. 2020 Supp.
21-6805(a).

For the purpose of sentencing under the KSGA, a defendant's criminal history
score is calculated by considering and scoring the defendant's eligible prior convictions.
See K.S.A. 2020 Supp. 21-6810. Either the offender must admit his or her criminal
history in open court or the sentencing judge must determine the offender's criminal
history by a preponderance of the evidence at the sentencing hearing. K.S.A. 2020 Supp.
21-6814(a).

This last provision is the basis of Albano's section 5 challenge. She argues the
KSGA violates section 5 because it allows the sentencing court, rather than a jury, to find
the existence of prior convictions to determine a defendant's criminal history. She asserts
that when the Kansas Constitution came into existence in 1859, the common law required
prior convictions that increased the permissive penalty for a crime to be proven to a jury
beyond a reasonable doubt. Thus, Albano contends this common-law right was preserved
under section 5 and the KSGA's reliance on the court to make criminal history findings
for purposes of imposing a defendant's sentence violates this right.

The Court of Appeals rejected Albano's section 5 claim for two reasons. First, the
panel found that our court had rejected a similar argument in analyzing the jury trial
guarantee provided under the Sixth Amendment to the United States Constitution. The
panel predicted we would interpret the rights guaranteed in section 5 to be coextensive
with those provided under the Sixth Amendment. Albano, 58 Kan. App. 2d at 127-29.
Second, the panel found that no authority established the existence of a common-law
right to have sentence-enhancing prior convictions proven to a jury in Kansas at the time
of statehood. 58 Kan. App. 2d at 129-34. Albano challenges both rationales. We examine
each in turn.

6
Albano's Section 5 Claim Should Be Examined Independent of the Sixth Amendment

We first consider the Court of Appeals' conclusion that the rights provided under
section 5 of the Kansas Constitution Bill of Rights are coextensive with those guaranteed
by the Sixth Amendment to the United States Constitution. As the State points out, if
section 5 is merely coextensive with the Sixth Amendment, established precedent
interpreting the Sixth Amendment would foreclose Albano's challenge. In Almendarez-
Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998),
the United States Supreme Court held the Sixth Amendment does not require a jury to
find the fact of a prior conviction that increases the statutory maximum punishment for a
crime. Later, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000), the Court held that any fact that increases punishment beyond the
statutory maximum must be proven to a jury beyond a reasonable doubt, but the Court
declined to overrule Almendarez-Torres, instead carving out an exception for prior
convictions. Likewise, we have held that the KSGA does not violate the Sixth and
Fourteenth Amendments to the United States Constitution. See State v. Ivory, 273 Kan.
44, 44, 41 P.3d 781 (2002).

The Court of Appeals relied on a syllogism to conclude section 5 rights are
coextensive with those provided under the Sixth Amendment. The panel observed that we
have previously held that section 10 of the Kansas Constitution Bill of Rights, which
provides specific protections for criminal defendants, encompasses the jury trial right of
section 5. Albano, 58 Kan. App. 2d at 128 (citing In re Clancy, Petitioner, 112 Kan. 247,
249, 210 P. 487 [1922] [holding section 10 includes the section 5 jury trial right and adds
the right to have a speedy public trial in the county where the offense was committed in
criminal proceedings]). The panel also noted that we have analyzed section 10's jury trial
right as coextensive with the Sixth Amendment's jury trial right. Albano, 58 Kan. App. 2d
at 129 (citing State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 [2014] [recognizing that this
court has not previously analyzed section 10's language differently from the Sixth

7
Amendment], rev'd and remanded on other grounds 577 U.S. 108, 136 S. Ct. 633, 193 L.
Ed. 2d 535 [2016]). Therefore, the panel concluded that "since section 10 encompasses
section 5's jury trial right and section 10 provides the same protection as the Sixth
Amendment, it is a reasonable inference that section 5's jury trial right is also interpreted
the same as the Sixth Amendment to the United States Constitution." Albano, 58 Kan.
App. 2d at 129.

Albano claims the Court of Appeals' analysis fails to account for the textual and
structural differences between the state and federal constitutional provisions. As she
points out, the Sixth Amendment does not contain section 5's "inviolate" language.
Instead, it guarantees that criminal defendants "shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have
been committed." U.S. Const. amend. VI. Albano argues that by including the word
"inviolate" in section 5, the framers offered protections greater than those guaranteed by
the Sixth Amendment. She also contends that by including jury trial rights in both section
5 and section 10, the framers of the Kansas Constitution intended section 5 to provide
protections distinct from those within section 10. Since section 10 loosely tracks the
language of the Sixth Amendment, Albano reasons that section 5 must provide different
protections than the Sixth Amendment. See Kan. Const. Bill of Rights, § 10 (providing
that criminal defendants have a right to "a speedy public trial by an impartial jury of the
county or district in which the offense is alleged to have been committed").

We agree with Albano only to the extent that section 5 may not provide the same
protections or guarantees as the Sixth Amendment in all cases. When interpreting the
meaning of our state Constitution, this court has frequently adopted the United States
Supreme Court's interpretation of the corresponding federal constitutional provision,
notwithstanding any textual, historical, or jurisprudential differences. State v. Lawson,
296 Kan. 1084, 1091, 297 P.3d 1164 (2013). But "allowing the federal courts to interpret
the Kansas Constitution seems inconsistent with the notion of state sovereignty." 296

8
Kan. at 1091-92. Thus, we retain authority to interpret the Kansas Constitution
independently of the manner in which federal courts interpret corresponding provisions
of the United States Constitution, which may result in our state Constitution providing
greater or different protections. 296 Kan. at 1090-91. And our court has exercised this
sovereign power to interpret certain provisions of the Kansas Constitution in a manner
different from parallel provisions of the United States Constitution. See, e.g., Hodes &
Nauser, MDs v. Schmidt, 309 Kan. 610, 624, 440 P.3d 461 (2019) (independently
interpreting section 1 of the Kansas Constitution Bill of Rights in manner different from
the Fourteenth Amendment to the United States Constitution); State v. McDaniel &
Owens, 228 Kan. 172, 184-85, 612 P.2d 1231 (1980) (independently interpreting section
9 of the Kansas Constitution Bill of Rights in manner different from the Eighth
Amendment to the United States Constitution).

In interpreting provisions of the Kansas Constitution, we have long adhered to the
following rule of construction:

"'[T]he best and only safe rule for ascertaining the intention of the makers of any written
law, is to abide by the language they have used; and this is especially true of written
constitutions, for in preparing such instruments it is but reasonable to presume that every
word has been carefully weighed, and that none are inserted, and none omitted without a
design for so doing.'" Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876).

When the words themselves do not make the drafters' intent clear, courts look to the
historical record, remembering "'the polestar . . . is the intention of the makers and
adopters.'" Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939); see State ex rel. Stephan v.
Finney, 254 Kan. 632, 655, 867 P.2d 1034 (1994).

Here, of course, the language of section 5 does not directly correspond to the
language of the Sixth Amendment. And to construe the jury trial rights in section 5 to be
duplicative of those in section 10 appears inconsistent with the presumption that the

9
framers of the Kansas Constitution carefully weighed every word and neither inserted nor
omitted any "'without a design for so doing.'" Wright, 16 Kan. at 607. More importantly,
in determining whether section 5 is implicated, we look to the common-law rights as they
existed in our state at the time the Kansas Constitution was adopted. See State v. Love,
305 Kan. 716, 734, 387 P.3d 820 (2017). The state-centric focus of this analysis leaves
room for variance or divergence between the rights guaranteed under section 5 and those
provided by the Sixth Amendment.

While we have previously declined to find section 5 provides greater protection
than the Sixth Amendment, see State v. Conley, 270 Kan. 18, 35, 11 P.3d 1147 (2000),
we have more recently analyzed a defendant's section 5 and Sixth Amendment claims
separately. See, e.g., Love, 305 Kan. at 730-37. This practice is consistent with other
states that have similar state constitutional provisions that characterize the right to trial by
jury as inviolate. See, e.g., Newkirk v. Nothwehr, 210 Ariz. 601, 604, 115 P.3d 1264
(2005); People v. Wiley, 9 Cal. 4th 580, 586-87, 889 P.2d 541 (1995); State v. Smith, 150
Wash. 2d 135, 149-56, 75 P.3d 934 (2003).

That said, in this case we cannot determine whether section 5 provides greater or
different protections than the Sixth Amendment by looking solely to the language or
structure of the Kansas Constitution. We have interpreted the word "inviolate" as used in
section 5 to mean "not disturbed or limited." In re Rolfs, Petitioner, 30 Kan. 758, 762,
1 P. 523 (1883). So, while section 5's language makes clear that the jury trial right may
not be infringed upon, it says little about the scope of that right. And while section 5 and
section 10 may provide different protections, this again tells us little about the scope of
those protections, at least as it pertains to the issue before the court. Ultimately, we can
only answer this question by looking to the historical record to determine if the common
law recognized the right to have sentence-enhancing prior convictions proven to a jury
when our state Constitution was adopted. See Albano, 58 Kan. App. 2d at 129
(defendant's section 5 challenge can be "more definitively resolved by applying a section

10
5 analysis"). As such, it is appropriate to analyze this section 5 challenge separately from
the Sixth Amendment. And established precedent foreclosing Albano's challenge under
the Sixth Amendment does not categorically dispose of her challenge under section 5.

The Historical Record Confirms Judicial Fact-finding of Prior Convictions for
Sentencing Purposes Does Not Implicate Section 5

While we have not definitively established a framework for analyzing section 5
claims, we have asked two basic questions when conducting such an analysis: (1) "In
what types of cases is a party entitled to a jury trial as a matter of right?"; and (2)
"[W]hen such a right exists, what does the right protect?" Love, 305 Kan. at 735.
Criminal prosecutions undoubtedly implicate section 5's jury trial right. 305 Kan. at 736.
Thus, the controlling question here is whether the scope of section 5 encompasses the
right to have prior convictions proven to a jury for the purposes of determining the
defendant's sentence.

Kansas' Traditional Division of Functions Between the Jury and the Court
Confirms the KSGA Does Not Implicate Section 5

In determining the scope of protection afforded under section 5, our court has
frequently looked to the traditional functions performed by the jury. For example, in
Love, this court addressed whether the Legislature's statutory elimination of the lesser
included offenses of felony murder violated a defendant's section 5 jury trial right. There,
defendant argued section 5 guaranteed a right to have the jury determine whether he was
guilty of a lesser included offense, in lieu of the charged offense, because juries were
instructed on lesser included offenses at common law. In analyzing this issue, Love
determined that the scope of section 5's protection is limited to those functions
traditionally performed by juries. The court recognized that in the guilt phase of criminal
proceedings issues of fact historically fall within the province of the jury, but "[t]he right
to have the jury determine issues of fact is in contrast to the determination of issues of

11
law, which has always been the province of the court." 305 Kan. at 735. Thus, Love
determined that the section 5 jury trial right extends "'no further than to give the right of
such trial upon issues of fact so tried at common law.'" 305 Kan. at 735 (quoting Hasty v.
Pierpont, 146 Kan. 517, 519, 72 P.2d 69 [1937]). Because the decision to instruct a jury
on lesser included offenses is generally a question of law for the court to decide, Love
held that the Legislature's statutory elimination of the lesser included offenses of felony
murder did not violate defendant's section 5 right to trial by jury. 305 Kan. at 736-37. In
other words, the legislative action did not affect a traditional function performed by the
jury.

Like the role-defining boundary between issues of fact and issues of law, Kansas
courts have also long recognized a similar boundary between the guilt phase and the
sentencing phase of criminal proceedings. In State v. O'Keefe, 125 Kan. 142, 145, 263 P.
1052 (1928), this court acknowledged that "fixing the extent of the punishment is not a
function of the jury. The function of the jury is to determine whether the defendant was
guilty of the offense charged. The punishment is fixed by the court in accordance with the
statute." See also Love, 305 Kan. at 735-36 ("Issues of fact for the jury to determine
include . . . guilt in criminal cases."); 1 Bishop, Bishop on Criminal Law, § 934 (9th ed.
1923) ("Under the common law procedure, the court determines in each case what within
the limits of the law shall be the punishment—the question being one of discretion.").

In State v. Hathaway, 143 Kan. 605, 56 P.2d 89 (1936), our court reversed
defendant's conviction after the district court, in response to a jury question, instructed
jurors on the sentence defendant would likely receive if convicted. In reaching this
holding, the majority explained "[t]his court has repeatedly held that the statutory penalty
for crime is no concern of the jury." 143 Kan. at 608 (citing State v. O'Keefe, 125 Kan.
142, 145, 263 P. 1052 [1928]; State v. Reuter, 126 Kan. 565, 566, 268 P. 845 [1928];
Levell v. Simpson, 142 Kan. 892, 896, 52 P.2d 372 [1935]). Disagreeing only with the
majority's conclusion that this error compelled reversal of the conviction, Justice William

12
West Harvey, in his dissenting opinion, offered a more descriptive explanation of the
traditional assignment of duties and responsibilities between the jury and the court that
arise from this boundary separating the guilt and sentencing phases of a criminal
proceeding:

"[I]n the division of duties and responsibilities between the court and the jury in the trial
of a criminal case it is the function and duty of the jury to pass upon the facts shown by
the evidence and to determine whether such evidence shows the defendant to be guilty or
innocent of the crime charged, while it is the function and duty of the court to determine
all questions of law which arise in the progress of the case, to approve or disapprove a
verdict of guilty returned by the jury, and if it be approved, to determine what
punishment under the law should be imposed, and to render a judgment in accordance
therewith. For some offenses the court is authorized to grant paroles; for others it is not.
For some offenses the court, within prescribed limits, must fix the specific punishment;
for others the statutes fix the extent of the punishment without power of the court to
change. If defendant previously had been convicted of a felony, that fact, when
established, must be taken into account by the court in adjudging the punishment. All
these matters respecting the punishment are for the court to determine and adjudge—they
are not to be determined by the jury." 143 Kan. at 610-11 (Harvey, J., dissenting).

O'Keefe and Hathaway illustrate that this role-defining boundary between the guilt
phase and sentencing phase of a criminal proceeding has been a firmly entrenched rule in
our state's jurisprudence. That is, juries determine guilt while courts determine
punishment, and the court's duty to impose punishment includes the duty to consider a
defendant's prior convictions, if any.

Kansas courts have also relied on these role-defining boundaries to resolve legal
challenges brought under our state's recidivist sentencing statutes. For instance, in State v.
Woodman, 127 Kan. 166, 272 P. 132 (1928), this court addressed whether a charging
document must allege the existence of a prior conviction before a defendant may be
sentenced as a recidivist. There, the district court, in accordance with a 1927 habitual

13
offender statute, found that the defendant had been previously convicted of a felony and
imposed a sentence twice the length of the authorized sentence for a first-time offense.
On appeal, the defendant argued the charging document should have alleged that he had
formerly been convicted of a felony. This court rejected the defendant's argument
because the 1927 statute merely prescribed a greater punishment based on a prior
conviction. Therefore, the fact of a prior conviction fell within the province of the court
to decide punishment and did not have to be proven to the jury:

"Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty
for one who is convicted a second time of the commission of a felony and a still greater
penalty for one who is convicted of a felony for the third time. . . . In this state it is no
concern of the jury what the penalty for a crime may be, and it is just as well that the
jurors' minds should not be diverted from the question of defendant's innocence or guilt
by facts concerning defendant's prior convictions of other felonies." 127 Kan. at 172.

Later, in Levell v. Simpson, 142 Kan. 892, 52 P.2d 372 (1935), our court directly
addressed whether defendants have a constitutional right to have prior convictions proven
to a jury for purposes of sentencing under a recidivist sentencing statute. There, the
district court found the defendant had been convicted of two prior felonies and sentenced
him to life imprisonment under a habitual offender statute. The defendant challenged his
sentence, arguing he had a right under the state and federal Constitutions to have his prior
convictions proven to a jury. Citing Woodman, this court held the defendant "had no such
privilege under Kansas law." Levell, 142 Kan. at 894. The court reiterated that "'[i]n this
state it is no concern of the jury what the penalty for a crime may be.'" 142 Kan. at 894.

Moreover, Levell recognized a distinction of legal significance when the fact of a
prior conviction is used to sentence a defendant as a habitual offender, rather than to
support an element of a distinct crime for purposes of conviction. Levell concluded the
right to trial by jury is implicated only in the latter instance:

14
 "The circumspection which our procedure exerts to keep the fact of any former
convictions for felonies away from the jury is to protect the accused from the possibility
that in his pending trial the jury might conceive a prejudice against him as a habitual
criminal. But where a second offense is a separate and distinct crime it must necessarily
be so charged in the information, and the proof to support the charge in all its details
would have to be submitted to the jury. We have one such crime in this state—the
persistent violation of the prohibitory law. A first offense against the prohibitory law
(with exceptions not here pertinent) is a misdemeanor punishable by a moderate fine and
jail sentence. But a subsequent infraction of the prohibitory law is quite a different and a
more serious crime. It is a distinct felony. In such a case, all the formalities of a felonious
charge should be pleaded in the information. Of necessity, too, every material allegation
in such an information would have to be proved to the satisfaction of a jury. [Citations
omitted.]" 142 Kan. at 895.

Woodman and Levell suggest Kansas has never recognized a general rule that
sentence-enhancing prior convictions must be proven to a jury. Rather, the necessity of a
jury finding depends on whether the prior conviction defines a separate offense. If it does,
then the issue must go to the jury as it falls within the jury's traditional role to determine
guilt or innocence of the crime charged. If, however, the prior conviction goes to the
punishment only, the court may determine its existence as part of its traditional role to
impose a legally appropriate sentence. And this division of duties exists for good
reason—informing the jury that the defendant has a prior conviction when such
conviction is not an element of the charged offense may unnecessarily prejudice the
defendant.

Albano argues that reliance on these decisions is misplaced. She notes that
Woodman did not directly address the constitutionality of the 1927 habitual offender
statute and the defendant in that case was effectively challenging his charging document
on due process grounds. As for Levell, she notes that that decision does not explicitly
state that section 5 was the basis for the defendant's state constitutional challenge, and the

15
Levell court did not explicitly consider the common law in Kansas in 1859 in reaching its
decision.

But Albano's criticism misses the mark. Woodman and Levell, along with O'Keefe
and Hathaway, define the traditional functions of the jury in Kansas criminal
proceedings, apart from those functions that fall within the exclusive purview of the
court. These holdings confirm that the traditional role of a Kansas jury is to determine
guilt, and the role of the court is to decide punishment and facts relevant to it, including
prior criminal history. In turn, Love instructs that these well-established, traditional
functions of the jury also define the scope of the jury trial right in Kansas, and legislative
action that does not impair a traditional function of the jury does not violate section 5.
Barring some evidence that these early twentieth century decisions reflected a departure
from common law, they are reliable measures of the intended scope of rights guaranteed
under section 5.

No Authority Substantiates Albano's Claim that Woodman and Levell Reflect a
Departure from Common Law at the Time the Kansas Constitution Was Adopted

We recognize that Woodman and Levell were decided over 65 years after our state
Constitution was adopted. Nevertheless, they appear to be the earliest decisions following
statehood to address the issue. And no authority suggests their holdings marked a
departure from the common law in our state at the time of ratification. Albano directs us
to several sources to support the existence of a contrary rule. However, these sources fail
to substantiate Albano's argument.

United States Supreme Court Jurisprudence Does Not Substantiate
Albano's Proposed Common-law Rule

To support her argument, Albano primarily relies on Justice Thomas' concurring
opinion in Apprendi. There, Justice Thomas advocated for a broader rule than the one

16
adopted by the Apprendi majority—he would find that prior convictions fall within the
broader rule that any fact that would increase the punishment for a crime beyond the
statutory maximum must be proven to a jury. 530 U.S. at 501, 519-21 (Thomas, J.,
concurring). For support, Justice Thomas cited state court decisions from the 1800s for
the proposition that "the common-law understanding that a fact that is by law the basis
for imposing or increasing punishment is an element." 530 U.S. at 502-06 (Thomas, J.,
concurring). He also argued that state court decisions from this same period demonstrate
that "there was a tradition of treating recidivism as an element." 530 U.S. at 506
(Thomas, J., concurring).

Albano specifically relies on two of the state court decisions cited in Justice
Thomas' concurrence. Albano quotes an excerpt from Tuttle v. Commonwealth, 68 Mass.
505, 506, 1854 WL 5131 (1854), in which the Massachusetts Supreme Judicial Court
held that if a statute imposes a higher sentence for a subsequent conviction, then the prior
conviction must be included in the indictment:

"When the statute imposes a higher penalty upon a second and a third conviction,
respectively, it makes the prior conviction of a similar offence a part of the description
and character of the offence intended to be punished; and therefore the fact of such prior
conviction must be charged, as well as proved. It is essential to an indictment, that the
facts constituting the offence intended to be punished should be averred. This is required
by a rule of the common law, and by our own Declaration of Rights, art. 12." 68 Mass. at
506.

The Court of Appeals found Tuttle provided little support for Albano's proposed
common-law rule. The panel noted "the case was not necessarily challenging findings of
previous criminal history at sentencing." Albano, 58 Kan. App. 2d at 130. Instead, the
issue in Tuttle was whether a defendant could be ordered to serve a second offense or
third offense violation penalty under a statute when the indictment had not charged him
with a second or third offense. Albano, 58 Kan. App. 2d at 131. And the common-law

17
rule referred to in the opinion appeared to be the rule that the indictment must include
"'the facts constituting the offence intended to be punished.'" Albano, 58 Kan. App. 2d at
131 (quoting Tuttle, 68 Mass. at 506).

Albano also cites Hines v. The State, 26 Ga. 614, 1859 WL 2341 (1859). There,
the jury found a defendant guilty of a second offense after the district court instructed the
jury that "'no proof of a former conviction was necessary.'" 26 Ga. at 616. The Georgia
Supreme Court held that the district court erred because whether the defendant was
previously convicted of the same offense was a question for the jury. 26 Ga. at 616. But
the Albano panel noted that Hines does not rely on a common-law principle to reach its
holding, so that decision does not establish the existence of a common-law rule requiring
juries to find prior convictions. Albano, 58 Kan. App. 2d at 131.

On review, Albano does not challenge the Court of Appeals' assessment of Tuttle
or Hines. Instead, she argues that "Justice Thomas' scholarship cannot be dismissed as
easily as the Court of Appeals suggests." Albano notes that Justice Scalia authored a four-
justice dissent in Almendarez-Torres in which he stated that at common law prior
convictions had to be alleged in the indictment and proven to the jury at trial. 523 U.S. at
261 (Scalia, J., dissenting). Albano argues that if Justice Thomas is added to the four
justices who dissented in Almendarez-Torres then, at one point in time, five United States
Supreme Court Justices seemingly agreed, albeit in different decisions, there was a
common-law rule that sentence-enhancing prior convictions had to be proven to a jury.

However, despite Albano's creative analysis, the Unites States Supreme Court has
never reached such a holding in any decision. And the existence of such a common-law
rule is vigorously contested. Indeed, Justice O'Connor authored a four-justice dissent in
Apprendi that expressly criticized Justice Thomas' concurrence. She stated that while the
decisions Justice Thomas relied on

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 "might reveal . . . the way American state courts resolved questions regarding the
distinction between a crime and its punishment under general rules of criminal pleading
or their own state constitutions, the decisions fail to demonstrate any settled
understanding with respect to the definition of a crime under the relevant, pre-existing
common law. . . .

"An examination of the decisions cited by JUSTICE THOMAS makes clear that
they did not involve a simple application of a long-settled common-law rule that any fact
that increases punishment must constitute an offense element. That would have been
unlikely, for there does not appear to have been any such common-law rule. The most
relevant common-law principles in this area were that an indictment must charge the
elements of the relevant offense and must do so with certainty. Those principles, of
course, say little about when a specific fact constitutes an element of the offense.

"JUSTICE THOMAS is correct to note that American courts in the 19th century
came to confront this question in their cases, and often treated facts that served to
increase punishment as elements of the relevant statutory offenses. To the extent
JUSTICE THOMAS' broader rule can be drawn from those decisions, the rule was one of
those courts' own invention, and not a previously existing rule that would have been
'codified' by the ratification of the Fifth and Sixth Amendments. Few of the decisions
cited by Justice THOMAS indicate a reliance on pre-existing common-law principles.
[Citations omitted.]" 530 U.S. at 528-29 (O'Connor, J., dissenting).

In sum, decisions such as Tuttle and Hines held that the fact of a prior conviction
needed to be proven to a jury in those instances. But they did not indicate this holding
rested on a pre-existing common-law rule. And to the extent that these decisions could be
said to support the existence of a such a rule, none of these decisions indicate Kansas
followed this rule when our state Constitution came into existence.

Moreover, the United States Supreme Court's historical treatment of recidivist
sentencing statutes casts further doubt on the existence of Albano's proposed common-
law rule. The Court has recognized that recidivism "is a traditional, if not the most

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traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-
Torres, 523 U.S. at 243; see Parke v. Raley, 506 U.S. 20, 26, 113 S. Ct. 517, 121 L. Ed.
2d 391 (1992) (stating that recidivist sentencing statutes "have a long tradition in this
country that dates back to colonial times"). And the Court has stated in several opinions
that "a charge under a recidivism statute does not state a separate offense, but goes to
punishment only." 506 U.S. at 27; see Oyler v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501, 7
L. Ed. 2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 629, 32 S. Ct. 583, 56 L.
Ed. 917 (1912); McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S. Ct. 389, 45 L. Ed.
542 (1901). These decisions suggest courts have traditionally determined the existence of
prior convictions because such findings related only to the punishment for a crime—a
function within the exclusive purview of the court.

Ultimately, we find the United States Supreme Court's jurisprudence does little to
advance Albano's position. Rather than establishing that common-law juries had to find
the existence of sentence-enhancing prior convictions, these decisions demonstrate only
that the members of our nation's highest court disagree on whether such a rule ever
existed. Moreover, these decisions confirm a long-standing tradition of treating
recidivism as "going to punishment only," which echoes the distinction recognized by our
court in Woodman and Levell.

Other Sources Do Not Substantiate Albano's Proposed Common-Law Rule

Albano also directs us to legal scholarship in support of her position. However,
these sources do not establish that her proposed common-law rule existed in Kansas in
1859. Albano cites a law review article which states that "[a]t the end of the eighteenth
century, every state followed the established common law rule: any prior conviction that
would boost the sentence had to be alleged in the indictment and proven to a jury beyond
a reasonable doubt." King, Sentencing and Prior Convictions: The Past, the Future, and
the End of the Prior-Conviction Exception to Apprendi, 97 Marq. L. Rev. 523, 530

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(2014). Of course, Kansas was not a state at that time. More importantly, the same article
acknowledges that not only did several states depart from this rule in the nineteenth
century, but that Kansas departed from this rule before it became a state. 97 Marq. L.
Rev. at 552 n.140, 574.

Albano cites another article which states that under the "common law procedure
[for applying recidivist statutes] once used by a majority of the states" prior convictions
had to be included in the charging document and proven to a jury. Radice¸ Recidivist
Procedures Prejudice and Due Process, 53 Cornell L. Rev. 337, 341 n.19 (1968). But
nothing in this article suggests Kansas was one of the states to adopt this procedure. And
our prior decisions indicate just the opposite. See, e.g., Chance v. State, 195 Kan. 711,
715, 408 P.2d 677 (1965) ("It has never been the rule in Kansas that a defendant in a
criminal action must be apprised by the State prior to conviction that the State intends to
invoke the habitual criminal act.").

Finally, Albano argues that "[i]f American common law had abandoned the
traditional rule requiring that prior convictions be proven to a jury before our
Constitution was adopted in 1859, the best place to look for evidence of that shift would
be in our State's earliest criminal procedure statutes." She cites several statutes governing
punishment for criminal offenses from the General Laws of 1862 and argues that these
statutes show "no evidence of abandoning the traditional rule" that prior convictions must
be proven to a jury. Of course, this argument presupposes the existence of Albano's
supposed "traditional rule," which has not been substantiated. Moreover, none of the
statutes she directs us to clarify whether the jury or the court must find the existence of
prior convictions for sentencing purposes. See G.L. 1862, ch. 32, sec. 220-24; G.L. 1862,
ch. 33, sec. 278. These statutes tell us little, if anything, about whether her proposed
common-law rule existed in Kansas at the time of statehood.

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 Our review of the above sources leads us to conclude that "at best there was a
historical split on whether prior convictions must be proven to a jury" at common law.
Albano, 58 Kan. App. 2d at 133; see also Woodman, 127 Kan. at 172 (acknowledging "a
contrariety of judicial opinion" on whether a prior conviction must be alleged in the
indictment to sentence defendant under recidivist statute). Some sources indicate that
state courts required sentence-enhancing prior convictions be proven to a jury. But other
sources indicate this was traditionally an issue for the court. This historical split of
authority suggests there was no settled common-law rule on this issue. See Bibas,
Judicial Fact-finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale
L.J. 1097, 1129 (2001) (arguing that precedent shows "there was no uniform rule of
charging and proving all sentence enhancements at common law" and concluding that
"[i]n short, the nineteenth-century tradition was not uniform, suggesting that the common
law had no fixed rule on the subject").

Furthermore, even if some states did require juries to find the fact of sentence-
enhancing prior convictions, these sources suggest Kansas did not follow this rule at the
time of statehood. The historical record indicates Kansas either never followed such a
common-law rule or abandoned the rule before our state Constitution came into
existence.

CONCLUSION

There is no evidence to suggest the common law required sentence-enhancing
prior convictions to be proven to a jury in Kansas criminal proceedings at the time the
Kansas Constitution was adopted. To the contrary, our earliest decisions addressing this
issue recognize the traditional function of the jury is to decide issues of fact relevant to
guilt or innocence, and the traditional function of the court is to determine punishment
and to make findings relevant thereto, including a defendant's criminal history.
Woodman, Levell, and Love illustrate that these traditional functions provide an accurate

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measure of the scope of protection afforded under section 5 of the Kansas Constitution
Bill of Rights. Accordingly, we hold the KSGA provisions authorizing the court to make
criminal history findings for purposes of imposing a sentence do not violate section 5
because such judicial findings do not impair the traditional functions of the jury in
Kansas criminal proceedings. Albano's constitutional challenge necessarily fails.

The judgment of Court of Appeals is affirmed, and the judgment of the district
court is affirmed.

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