State v. Brown

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,590

STATE OF KANSAS,
Appellee,

v.

MAURICE A. BROWN,
Appellant.

SYLLABUS BY THE COURT

1.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits the State from using peremptory strikes to remove prospective
jurors based on their race.

2.
When a defendant challenges the State's exercise of peremptory strikes under the
Equal Protection Clause, the issue is analyzed under the three-step process set forth in
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). At the first
step of the Batson analysis, the defendant must make a prima facie showing that the State
has exercised its peremptory challenges in a discriminatory fashion, e.g., based on race.
An appellate court has unlimited review of the district court's finding on this step. If the
defendant makes a prima facie showing, the burden of production shifts to the State to
provide a non-discriminatory reason for the challenged strike. An appellate court reviews
a district court's ruling on this step for an abuse of discretion. Once the State has
proffered non-discriminatory reasons for its strikes, the defendant bears the burden of
showing purposeful discrimination. An appellate court also reviews the district court's
ruling on this step for an abuse of discretion.

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3.
The burden is on the party alleging discriminatory selection of the jurors from the
venire to prove the existence of purposeful discrimination.

4.
The prohibition against racial discrimination in jury selection precludes the State
from striking jurors sharing the racial identity of the defendant based on an assumption
that those jurors will be partial to the defendant based on their shared race.

5.
If the defendant or the district court do not correct errors in the prosecutor's
statements of fact supporting his or her reasons for exercising peremptory challenges,
these facts are considered to be true for purposes of determining whether the prosecutor
set forth a race-neutral reason for the strike.

6.
The prosecution cannot purposefully discriminate where it honestly but mistakenly
believes the nondiscriminatory reasons given for its peremptory strike.

7.
In determining whether the State exercised its peremptory strikes based on race, a
district court may consider numerous factors, including statistical evidence, side-by-side
comparisons of jurors, and the prosecutor's misrepresentation of the record. But it is not
the district court's duty to investigate these factors sua sponte. Rather, the defendant has
the burden to create the record of relevant facts and to prove his or her case to the district
court.

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8.
The provisions of the revised Kansas Sentencing Guidelines Act, K.S.A. 2020
Supp. 21-6801 et seq., that authorize the district court to make criminal history findings
for purposes of imposing a sentence do not violate section 5 of the Kansas Constitution
Bill of Rights because such judicial fact-findings do not impair the traditional functions
of the jury in Kansas criminal proceedings.

9.
Kansas' criminal restitution statutes do not trigger the Sixth Amendment
protections identified in Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000), and its progeny.

10.
Kansas' criminal restitution scheme implicates a defendant's right to trial by jury
under section 5 of the Kansas Constitution Bill of Rights by converting restitution orders,
in which a judge determines the damages proximately caused by the criminal act, into
civil judgments, thus bypassing the traditional function of juries to determine civil
damages. However, the proper remedy for this constitutional impropriety is to sever the
offending portions of the statutory scheme rather than vacate every judicially determined
restitution order. Once the unconstitutional provisions of that scheme are severed, the
original restitution order is constitutionally firm. Therefore, a criminal defendant will not
be faced with a civil judgment for criminal restitution unless it has been obtained
separately through a civil cause of action.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 17, 2020.
Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed November 12, 2021.
Judgment of the Court of Appeals affirming in part and vacating in part the judgment of the district court
is affirmed. Judgment of the district court is affirmed in part and vacated in part, and the case is remanded
with directions.

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 Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, argued the cause, and Jennifer
C. Bates and Sam Schirer, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: A jury convicted Maurice A. Brown of two counts of aggravated
robbery and eight counts of kidnapping in connection with the robbery of two Red Skye
Wireless phone stores in Wichita. The district court imposed a presumptive 200-month
prison sentence and ordered Brown to pay restitution. The Court of Appeals affirmed
Brown's convictions and his restitution order, but it vacated the sentence after concluding
that the district court had erroneously classified Brown's prior Michigan juvenile
adjudication for armed robbery as a person felony. State v. Brown, No. 120,590, 2020
WL 1897361, at *7, 10 (Kan. App. 2020) (unpublished opinion).

Brown petitioned for our review, arguing the Court of Appeals erred in affirming
his convictions and rejecting other constitutional challenges to his sentence and
restitution order. More specifically, Brown contends the Court of Appeals erred in
affirming his convictions because the State exercised peremptory challenges based on the
race of prospective jurors, violating his equal protection rights guaranteed under the
Fourteenth Amendment to the United States Constitution. Brown also claims that his
sentence, imposed under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A.
2020 Supp. 21-6801 et seq., violates section 5 of the Kansas Constitution Bill of Rights
because the KSGA permits a district court judge (rather than a jury) to make criminal
history findings for purposes of sentencing. Finally, Brown argues Kansas' criminal
restitution scheme violates his jury trial rights under section 5 and the Sixth Amendment
to the United States Constitution because the scheme authorizes a district court judge to
determine restitution damages.

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 After a thorough review of these issues, we conclude that Brown failed to carry his
burden to prove intentional discrimination in the State's exercise of peremptory
challenges, as required under the burden-shifting framework established in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Moreover, Brown's
constitutional challenges to his sentence and restitution order are resolved by our recent
opinions addressing identical claims. Specifically, in State v. Albano, 313 Kan. 638, 657,
487 P.3d 750 (2021), we held the KSGA does not violate section 5. Moreover, in State v.
Arnett, 314 Kan. ___, 2021 WL 4806611, at *3 (No. 112,572, filed October 15, 2021),
we held that Kansas' criminal restitution scheme does not violate the Sixth Amendment.
Though the restitution scheme does implicate section 5, we concluded that the offending
provisions are severable. 314 Kan. at ___, 2021 WL 4806611, at *7-8. And once the
unconstitutional provisions are severed, the original restitution order satisfies
constitutional scrutiny. 314 Kan. at ___, 2021 WL 4806611, at *8.

Accordingly, we affirm the decision of the Court of Appeals and remand the case
to the district court for resentencing consistent with that opinion.

FACTS AND PROCEDURAL BACKGROUND

The Court of Appeals outlined the facts related to Brown's crimes of conviction.
Brown, 2020 WL 1897361, at *1. We need only briefly highlight those facts relevant to
the procedural development of Brown's Batson challenge, given the nature of the issues
Brown raised in his petition for review.

Jury selection for Brown's trial began in late October 2018. After two days of voir
dire, the State used five of its eight peremptory challenges to strike four African-
American prospective jurors and one mixed-race prospective juror from the jury panel. In
response, Brown (who is African-American) raised a Batson challenge, arguing the

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State's racially motivated intent was evident from the sheer number of minority jurors the
State had excluded. In response, the State offered several race-neutral reasons for these
strikes. The district court found that the statements and actions of the prospective jurors
supported the State's race-neutral explanations and concluded that Brown had failed to
prove intentional discrimination.

Brown renewed the Batson challenge in his motion for new trial, which the district
court took up at sentencing. Brown reiterated his claim that the number of minority jurors
excluded demonstrated that the State exercised its peremptory challenges based on race.
The State advanced the same race-neutral explanations for striking these prospective
jurors (four African-American prospective jurors and one mixed-race prospective juror)
and further observed that three Hispanic jurors served on the jury and one African-
American had served as an alternate juror. The district court upheld its previous ruling on
the Batson challenge.

In imposing sentence, the district court determined that Brown had a criminal
history score of D based on his prior convictions, which included a prior Michigan
juvenile adjudication for armed robbery that the district court classified as a person
felony for sentencing purposes. The district court sentenced Brown to 200 months in
prison and ordered him to pay over $83,000 in criminal restitution.

Before the Court of Appeals, Brown argued that the district court had erred in
denying his Batson challenge, and for the first time on appeal, he challenged the
constitutionality of his sentence and restitution order. Brown also argued that the district
court had incorrectly calculated his criminal history score, rendering his sentence illegal.

The Court of Appeals concluded that Brown's illegal sentence claim was
meritorious and thus vacated the sentence and remanded the matter for resentencing.
2020 WL 1897361, at *7, 10. But the panel rejected Brown's arguments regarding his

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Batson challenge and the constitutionality of his sentence and restitution order. 2020 WL
1897361, at *4, 8-10.

Brown timely petitioned for review, and we granted review of all three claims the
Court of Appeals rejected. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for
petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court
has jurisdiction to review Court of Appeals decisions upon petition for review.).

ANALYSIS

I. Brown Failed to Demonstrate that the District Court Erred in Denying the Batson
Challenge

Brown contends the district court and Court of Appeals erred in denying his
Batson challenge because the State exercised its peremptory strikes to remove all
African-American prospective jurors and one mixed-race prospective juror. Brown also
claims the State offered an inherently discriminatory reason for striking one of those
jurors. He contends these facts, along with other statistical data, demonstrate that the
State exercised its peremptory strikes with discriminatory intent. The State contends the
district court did not abuse its discretion in determining that the challenged peremptory
strikes were constitutionally permissible because Brown failed to meet his burden to
show purposeful discrimination.

A. Legal Framework and Standard of Review

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits the State from using peremptory strikes to remove prospective
jurors based on their race. Batson, 476 U.S. at 89. If a defendant suspects the State has

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used its peremptory strikes in a racially discriminatory manner, he or she may challenge
those strikes under Batson.

When a Batson challenge is asserted, the issue is analyzed under a three-step
process. First, a defendant objecting to the State's exercise of peremptory challenges
"must first establish a prima facie case of purposeful discrimination during jury selection
by demonstrating that relevant circumstances raise an inference that the State exercised
peremptory challenges based upon the prospective juror's race." State v. Bolton, 271 Kan.
538, 540, 23 P.3d 824 (2001).

Second, if such a showing is made, the burden then shifts to the State to articulate
a non-discriminatory reason for the challenged strike. State v. Angelo, 287 Kan. 262, 271,
197 P.3d 337 (2008). This step

"does not demand a prosecutor's explanation that is persuasive, or even plausible, but
merely facially valid. Further, unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race neutral. Accordingly, the
ultimate burden of persuasion rests with, and never shifts from, the opponent of the
strike. [Citations omitted.]" State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).

Finally, "'[i]n the third step, the district court determines whether the opponent has
carried the burden of proving purposeful discrimination.'" State v. Gonzalez, 311 Kan.
281, 302, 460 P.3d 348 (2020). In other words, "once the prosecution offers a race-
neutral explanation, the defendant bears the burden of showing pretext, which 'requires
the judge to assess the plausibility of that reason in light of all evidence with a bearing on
it.' [Citation omitted.]" State v. Gonzalez-Sandoval, 309 Kan. 113, 126, 431 P.3d 850
(2018). As with any equal protection claim, a defendant who lodges a Batson challenge
has the burden to prove the existence of purposeful discrimination. 309 Kan. at 121
(quoting Batson, 476 U.S. at 93).

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 On review, each of these steps is subject to its own standard of review. State v.
Hill, 290 Kan. 339, 358, 228 P.3d 1027 (2010). "The standard of review of the first
step—the prima facie showing on the basis of race—is a question of legal sufficiency
subject to plenary review." Pham, 281 Kan. at 1237.

For the second step—whether the State offered a neutral explanation for its
strikes—we review the district court's ruling for an abuse of discretion. State v. Sledd,
250 Kan. 15, 21, 825 P.2d 114 (1992).

For the third step—the district court's decision on the ultimate question of whether
the defendant has carried the burden of proving purposeful discrimination—our review is
"greatly deferential because the determination is factual." Pham, 281 Kan. at 1237.

"Deference to trial court findings on the issue of discriminatory intent makes
particular sense in this context because, as we noted in Batson, the finding 'largely will
turn on evaluation of credibility.' In the typical peremptory challenge inquiry, the
decisive question will be whether counsel's race-neutral explanation for a peremptory
challenge should be believed. There will seldom be much evidence bearing on that issue,
and the best evidence often will be the demeanor of the attorney who exercises the
challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of
mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.'
[Citations omitted.]" Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 114 L.
Ed. 2d 395 (1991).

On appeal, "we review the decision under an abuse of discretion standard—that is, to
determine if the trial court made an error of law, made an error of fact, or was otherwise
arbitrary, fanciful, or unreasonable." Gonzalez-Sandoval, 309 Kan. at 126-27; see also
State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012) ("This step hinges on
credibility determinations because usually there is limited evidence on the issue, and the
best evidence is often the demeanor of the party exercising the challenge. As such, it falls

9
within the trial court's province to decide, and that decision is reviewed under an abuse of
discretion standard.").

B. Brown Made a Prima Facie Showing of Purposeful Discrimination

Under the first step of the Batson analysis, Brown was required to make a prima
facie showing that the State's peremptory challenges were based on race. The record
confirms the State used four of its eight peremptory strikes on African-American
prospective jurors, leaving one African-American to serve as the alternate juror. The
State also used a fifth peremptory strike on a mixed-race prospective juror. We agree
with the district court that the number of minority prospective jurors struck from the final
jury panel supports a prima facie case of purposeful discrimination on the part of the
State. Pham, 281 Kan. at 1238 (concluding that removal of two Hispanic jurors
established prima facie case).

Moreover, here the State offered race-neutral explanations for the challenged
strikes and the district court ruled on whether the State had intentionally discriminated. In
such circumstances, "the first prong of the Batson analysis is moot." Gonzalez, 311 Kan.
at 302-03.

C. The State Provided Race-Neutral Reasons for Its Peremptory Strikes

Once Brown made his prima facie showing, the burden of production shifted to the
State to provide race-neutral reasons for its peremptory strikes. The State proffered
several race-neutral reasons for striking each of the African-American and mixed-race
prospective jurors. Brown challenges only the State's explanation for exercising a
peremptory challenge against one juror, J.N. See Flowers v. Mississippi, 588 U.S. __, 139
S. Ct. 2228, 2244, 204 L. Ed. 2d 638 (2019) ("The Constitution forbids striking even a
single prospective juror for a discriminatory purpose."). Accordingly, our analysis

10
focuses on the State's explanation for exercising a peremptory challenge against this
juror.

In response to Brown's Batson challenge, the State proffered several reasons for
striking J.N., including that she expressed concerns about convicting and imprisoning
innocent people, and she had a "microscopic view" of the criminal justice system. The
State also asserted that J.N. constantly smiled while defense counsel was talking, she did
not fully disclose the nature of her employment on her jury information card, and she
watched procedural crime dramas. Finally, the State claimed J.N. had a "bias" or a
"preference" in favor of African-Americans.

On appeal, Brown takes issue only with this last reason, arguing J.N. never
expressed a bias toward African-Americans, and the State simply assumed she would be
biased because she was mixed race. As Brown correctly notes, the prohibition against
racial discrimination in jury selection precludes the State from striking jurors sharing the
racial identity of the defendant based on an assumption that those jurors will be partial to
the defendant based on their shared race. Flowers, 139 S. Ct. at 2241-42. Such an
assumption is inherently discriminatory because it "arise[s] solely from the jurors' race."
Batson, 476 U.S. at 98. Thus, if the State merely assumed J.N. would be racially biased
because of her racial identity, that rationale would not be race neutral.

The State argues that its reason for striking J.N. derived not from an assumption
based on her race but from J.N.'s own comments. Specifically, the State points to an
answer J.N. gave during voir dire. When defense counsel asked the prospective jurors if
they had any concerns about wrongfully convicting an innocent person, J.N. responded:

"With the way we are in America right now, I have a great fear of that. You hear
about people, you know what we all hear about, people being in prison and then it was a
case of mistaken identity. It was a coincidence, the wrong place at the wrong time, maybe

11
 not following up with all of the evidence or whatever it was. At this time it is so
important to do follow-up and look at all of the evidence. And we as our responsibility to
look at everything. That's why I am in fear of putting an innocent person away for— it is
a great fear because especially right now, no offense or whatever, but putting people of
color especially right now. And my mom is—I am of mixed race and so that is so
important to me that we get everything right.

"Do it right because we want to follow the steps and do everything by the book
as we should. And if that is what it takes, then that's how we should do it because putting
an innocent person away is the worst thing that can happen to that person. Think of the
time they spend in jail, the years they have. It is like it will make them seek revenge if
they want to and it will be a vicious cycle. So in doing the right thing and doing it like we
should, look at all of the evidence and . . . there is nothing else involved other than the
evidence, that's how we should do it."

The State argues this response supported the prosecutor's belief that J.N. expressed bias
or preference based on race because her fear of convicting innocent people was
particularly heightened with regard to people of color and that her mixed-race
background factored into this fear.

Based on the record before us, the prosecutor's claim regarding J.N.'s racial bias
appears to have resulted not from assumptions based on J.N.'s race, but rather from the
prosecutor's interpretation of J.N.'s own testimony and inferences the State drew from it.
In his briefing, Brown seemingly concedes that the State's explanation for striking J.N.
was founded on her testimony, rather than unconstitutional assumptions and stereotypes
based on her race or racial identity, but he suggests the State intentionally misrepresented
J.N.'s testimony in crafting this race-neutral explanation.

But Brown did not raise such an argument before the district court. See State v.
Trotter, 280 Kan. 800, 818-19, 127 P.3d 972 (2006) (party bringing Batson challenge
bears burden to develop factual record). And even if he had, "dissonance between a

12
prosecutor's race-neutral explanation and the transcript of voir dire does not prove that
the prosecutor lied to conceal racial discrimination." People v. Wilson, 351 P.3d 1126,
1132, (Colo. 2015).

Because Brown did not develop a factual record on this argument, we are left with
only J.N.'s actual testimony, as reflected in the cold transcript. And this record suggests
the prosecutor did not intentionally mischaracterize J.N.'s testimony. Instead, the State
crafted a race-neutral explanation founded on inferences it drew from her testimony. On
their face, J.N.'s remarks demonstrate her heightened concern about wrongfully
convicting people of color, in part, because she herself is "of mixed race." From these
statements, the prosecutor inferred J.N.'s bias or preference.

In hindsight, one could certainly question the reasonableness of the State's
inference and argue this race-neutral explanation overstates J.N.'s actual testimony.
However, it is legally significant that neither Brown nor the district court did so
contemporaneously. "If the defendant or the trial court do not correct errors in the
prosecutor's statements of fact supporting his or her reasons for exercising peremptory
challenges, these facts are considered to be true for purposes of determining whether the
prosecutor set forth a race-neutral reason for the strike." See Trotter, 280 Kan. at 815.

Given that neither Brown nor the district court corrected the prosecutor, we
presume for the purposes of our analysis that J.N. expressed a bias toward African-
Americans or, at the very least, that the prosecutor honestly believed that such an
inference was supported by J.N.'s testimony. Either way, the result is the same—the
State's reason for striking J.N. was founded on her own testimony, not her race. See
Hernandez, 500 U.S. at 360 ("A neutral explanation in the context of our analysis here
means an explanation based on something other than the race of the juror.").
Accordingly, we agree with the Court of Appeals and conclude that the district court did
not abuse its discretion in finding that the State met its burden to provide a race-neutral

13
reason for striking J.N. See Gonzalez-Sandoval, 309 Kan. at 125 ("The prosecution
cannot purposefully discriminate where it honestly but mistakenly believes the
nondiscriminatory reasons given for its peremptory strike.").

D. Brown Failed to Meet His Burden to Show Purposeful Discrimination

Once the State proffered race-neutral reasons for the challenged strikes, Brown
bore the burden of showing those reasons were pretext to conceal a discriminatory intent.
Gonzalez-Sandoval, 309 Kan. at 126. In determining whether the State's proffered
reasons are pretextual, the district court must "'assess the plausibility of that reason in
light of all evidence with a bearing on it.'" 309 Kan. at 126 (quoting Miller-El v. Dretke,
545 U.S. 231, 252, 125 S. Ct. 2317, 162 L. Ed. 2d 196 [2005]). And we remain mindful
that the district court's determination on this step is factual in nature and will often turn
on an evaluation of the prosecutor's credibility. Because district courts are in a better
position to determine credibility, appellate courts are highly deferential when reviewing
the district court's findings on this step. Pham, 281 Kan. at 1237.

Here, the district court found that the actions and statements of the prospective
jurors supported the State's race-neutral explanations for the strikes and that Brown had
failed to show purposeful discrimination. On appeal, Brown argues that several factors
undermine the district court's finding on this step. Brown asserts that a side-by-side
comparison reveals two of the nonwhite jurors the State excluded had similarities to
white jurors who were not removed, and that the prosecutor intentionally misrepresented
the record when he said J.N. had a bias toward African-Americans. Brown contends that
these two factors, along with statistical evidence regarding the number of minority jurors
struck, demonstrates that the district court's finding was erroneous.

In determining whether the State exercised its peremptory strikes based on race, a
district court may consider numerous factors, including statistical evidence, side-by-side

14
comparisons of jurors, and the prosecutor's purported misrepresentation of the record. See
Flowers, 139 S. Ct. at 2243. But it is not the district court's duty to investigate these
factors sua sponte. See State v. Campbell, 268 Kan. 529, 535, 997 P.2d 726 (2000)
(district court does not have duty to sua sponte conduct side-by-side comparison of
jurors). Rather, the "defendant has the burden to create the record of relevant facts and to
prove his or her case to the trial court." Trotter, 280 Kan. at 818-19. Thus, the onus was
on Brown to draw the district court's attention to any relevant evidence of pretext and
purposeful racial discrimination.

Here, the only evidence Brown presented to the district court was that the State
used four of its eight peremptory strikes to remove all the prospective African-American
jurors from the final jury panel, and the State exercised a fifth peremptory challenge to
remove a mixed-race juror, i.e., the same evidence Brown relied on to establish his prima
facie case. In challenging the State's peremptory challenges, Brown did not offer a
comparative analysis of jurors to the district court or argue that some of the nonwhite
jurors the State removed also shared characteristics with unchallenged white jurors.
Brown did not challenge the State's characterization of J.N.'s testimony or the inferences
the State drew from it. And while Brown provides us with a statistical analysis suggesting
a low probability that all African-American and mixed-race jurors could have been
removed by chance, he did not present this same analysis to the district court. Nor did
Brown advance any of these arguments when he renewed the Batson challenge as part of
his motion for new trial.

We addressed a similar circumstance in Gonzalez-Sandoval. There, the Court of
Appeals majority pointed to numerous factors and circumstances that might have
suggested the State's race-neutral reasons for removing a prospective juror were pretext
for discrimination. However, we concluded that the defendant's failure to raise these
issues in the district court precluded the appellate court from considering them for the
first time on appeal:

15
 "Gonzalez-Sandoval did not raise any of these matters when making his Batson
challenge, when arguing the issue the second day of the trial, or when arguing his motion
for new trial. During the initial argument, for example, Gonzalez-Sandoval did not ask to
inquire of [the prospective juror] about the basis for the State's proffer. Nor did he
challenge the accuracy of the reasons given by the State in any other way. He presented
nothing—either through evidence or argument—to suggest pretext. In other words,
Gonzalez-Sandoval did nothing to challenge the efficacy of the State's reason or to bring
the State's motive into question. If Gonzalez-Sandoval had a concern about how the State
gathered information about prospective jurors or the factual accuracy of the State's
proffered reason for the strike, he needed to present those arguments to the trial court.
[Citation omitted.]" Gonzalez-Sandoval, 309 Kan. at 128.

Because Brown failed to raise these arguments before the district court, we do not
consider them in determining whether the district court abused its discretion. See, e.g.,
Pham, 281 Kan. at 1239 (declining to hear defendant's argument comparing excluded
jurors to retained white jurors because it was not raised before the district court).

Thus, in reviewing the third step of Brown's Batson challenge, we are limited to
considering whether the State's exercise of five of its eight peremptory strikes to remove
nonwhite prospective jurors conclusively demonstrates the State acted with
discriminatory intent. Of course, these numbers could be evidence of such intent. But this
court has cautioned against placing determinative significance on any one factor, even
when the State removes all members of a minority group from a jury panel. Trotter, 280
Kan. at 812-14.

Furthermore, when ruling on a Batson challenge, district courts may objectively
compare numbers and other facts raised by defendants, but they must also evaluate the
prosecutor's credibility. 280 Kan. at 813. After Brown directed the district court's
attention to the number of minority jurors struck, the prosecutor provided race-neutral

16
reasons for those strikes, and the district court accepted those reasons as supported by the
actions and statements of the jurors. Given that Brown presented no further evidence of
purposeful discrimination to the district court, under our deferential standard of review
we hold the district court did not abuse its discretion in denying Brown's Batson
challenge. See Gonzalez-Sandoval, 309 Kan. at 129 (concluding that defendant failed to
meet his burden under the third Batson step where no argument or evidence offered to
demonstrate State's race-neutral reason was pretext for discrimination).

II. The KSGA's Use of Judicial Fact-Finding to Determine a Defendant's Criminal
History Does Not Implicate Section 5 of the Kansas Constitution Bill of Rights

Next, Brown argues the KSGA, under which he was sentenced, violates our state
Constitution because it allows judicial fact-finding of a defendant's criminal history for
sentencing purposes.

Determining a statute's constitutionality is a question of law over which we have
unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).

Brown brings his challenge under section 5 of the Kansas Constitution Bill of
Rights, which provides: "The right of trial by jury shall be inviolate." He argues the
KSGA violates section 5 because it allows the sentencing court, rather than a jury, to find
the existence of prior convictions for the purpose of determining a defendant's criminal
history. See K.S.A. 2020 Supp. 21-6814(a). He 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. He
claims this common-law right would have been preserved under section 5, and the
KSGA's use of judicial fact-finding to determine a defendant's criminal history would
implicate this right.

17
 The Court of Appeals rejected Brown's claim. The panel acknowledged this court
has rejected a similar argument in analyzing the jury trial guarantee provided under the
Sixth Amendment to the United States Constitution. Brown, 2020 WL 1897361, at *8
(citing State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 [2002]). And the panel held that
Brown failed to establish that we would interpret section 5 to require greater protections
than the Sixth Amendment. Brown, 2020 WL 1897361, at *8.

On review, Brown argues the Court of Appeals erred in finding that no authority
supported his claim. He asserts textual and structural differences between the state and
federal Constitutions indicate section 5 provides greater protections than the Sixth
Amendment. He also contends that United States Supreme Court jurisprudence and legal
scholarship establish the existence of a common-law rule requiring prior convictions be
proven to a jury in 1859.

In Albano, we addressed an identical section 5 challenge. We determined that the
defendant's section 5 claim should be analyzed independent of the Sixth Amendment. 313
Kan. at 644-45. However, we held that "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." 313 Kan. at 657. Albano disposes of Brown's section 5
challenge. Accordingly, we affirm the Court of Appeals decision as right for the wrong
reason. See State v. Bacon, 309 Kan. 1235, 1239, 443 P.3d 1049 (2019) (affirming Court
of Appeals as right for the wrong reason).

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III. Kansas' Criminal Restitution Scheme Implicates Section 5 of the Kansas Constitution
Bill of Rights

Finally, Brown argues that Kansas' criminal restitution scheme is unconstitutional
under section 5 of the Kansas Constitution Bill of Rights or, alternatively, under the Sixth
Amendment to the United States Constitution.

As with the previous issue, we have unlimited review over Brown's challenge to
the constitutionality of Kansas' criminal restitution statutes. Soto, 299 Kan. at 121.

The statutory scheme governing criminal restitution in Kansas is composed of a
variety of statutes spread amongst our criminal code and our civil procedure code. That
statutory scheme authorizes judges to order criminal defendants to pay restitution as a
part of sentencing. Judges are responsible for determining the amount of restitution,
which includes, but is not limited to, damage or loss caused by the defendant's crime. See
K.S.A. 2014 Supp. 21-6604(b)(1); K.S.A. 2014 Supp. 21-6607(c)(2). Once that judicial
determination is made, the award becomes a civil judgment, which may be enforced the
same as any other civil judgment. K.S.A. 2014 Supp. 21-6604(b)(2); K.S.A. 60-4301.

Brown argues that allowing a district court judge to determine the amount of
restitution in a criminal case violates section 5. He contends that restitution, which
compensates victims for the damages caused by a crime, is fundamentally a civil remedy.
Because there was a common-law right to have juries determine civil damages, he asserts
this common-law right was preserved under section 5. He thus reasons that Kansas'
criminal restitution scheme implicates section 5 because it effectively allows a judge,
rather than a jury, to determine civil damages.

In the alternative, Brown argues that criminal restitution constitutes punishment
and thus he has a right to have a jury determine the amount of restitution under the Sixth

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Amendment to the United States Constitution. Under that amendment, any fact, other
than the fact of a prior conviction, which increases the statutory maximum penalty for a
crime must be found by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Brown claims that the criminal
restitution statutes impermissibly allow judicial fact-findings to increase the statutory
maximum penalty for a crime because the maximum restitution value would be zero in
the absence of those fact-findings.

The Court of Appeals rejected both of Brown's arguments. The panel noted that
this court had previously held that criminal restitution and civil damages are separate and
independent remedies, thus criminal restitution is not subject to the right to a jury trial
under section 5. Brown, 2020 WL 1897361, at *8 (quoting State v. Applegate, 266 Kan.
1072, 1078, 976 P.2d 936 [1999]). The panel also held that criminal restitution does not
constitute punishment, and even if it did, it does not increase a defendant's maximum
penalty for a crime, thus Sixth Amendment protections do not apply. Brown, 2020 WL
1897361, at *9.

Much like the previous issue, we recently addressed an identical constitutional
challenge in Arnett, 314 Kan. at ___, 2021WL 4806611, at *3-8. There, we held that
Kansas' criminal restitution statutes do not trigger the Sixth Amendment protections
identified in Apprendi and its progeny. 314 Kan. at ___, 2021 WL 4806611, at *3.
However, we held that our current statutory restitution scheme violates section 5 by
converting restitution orders, in which a judge determines the damages proximately
caused by the criminal act, into civil judgments, thus bypassing the traditional function of
juries to determine civil damages. 314 Kan. at ___, 2021 WL 4806611, at *7. Even so,
we held that the proper remedy was to sever the offending portions of the statutory
scheme rather than vacate every judicially determined restitution order. 314 Kan. at ___,
2021 WL 4806611, at *7-8.

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 Brown is thus correct that the statutory scheme governing criminal restitution
implicates section 5. However, once the unconstitutional provisions of that scheme are
severed, Brown's original restitution order is constitutionally firm. He will not be subject
to a civil judgment for his criminal restitution unless it is obtained separately through a
civil cause of action. 314 Kan. at ___, 2021 WL 4806611, at *8. Thus, we affirm the
district court's restitution order.

In conclusion, we hold that the Court of Appeals properly affirmed the district
court's order denying Brown's Batson challenge. We also hold that the Court of Appeals
properly rejected Brown's constitutional challenges to the KSGA and the district court's
restitution order, albeit on different grounds than the panel relied upon. However, the
Court of Appeals also vacated Brown's sentence after concluding it is illegal, and the
State did not cross-petition for review of that holding. Thus, we remand the case to the
district court for resentencing consistent with the panel's decision that Brown's prior
Michigan juvenile adjudication for armed robbery was erroneously classified as a person
felony.

The judgment of the Court of Appeals is affirmed; the judgment of the district
court is affirmed in part and vacated in part, and the case is remanded with directions.

***

STANDRIDGE, J., concurring in part and dissenting in part: For the reasons stated
in my dissenting opinion in State v. Arnett, 314 Kan. __, No. 112,572, 2021 WL 4806611
(Kan. 2021), I respectfully dissent from the majority's analysis and conclusion on the
issue of restitution.

ROSEN, J., joins the foregoing concurring and dissenting opinion.

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