State v. Toliver

NOT DESIGNATED FOR PUBLICATION

No. 122,785

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TRACEY JEROME TOLIVER,
Appellant.

MEMORANDUM OPINION

Appeal from Riley District Court; KENDRA S. LEWISON, judge. Opinion filed December 23,
2021. Affirmed in part, vacated in part, and remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

David Lowden, deputy county district attorney, Barry R. Wilkerson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.

PER CURIAM: Tracey Jerome Toliver appeals following his convictions of stalking
and violating a protection order. Toliver argues that (1) the prosecutor committed
prosecutorial error during voir dire; (2) his convictions are multiplicitous; (3) the district
court erred in imposing the Board of Indigents' Defense Services (BIDS) attorney fees;
(4) his sentence is illegal because his criminal history score included two convictions for
criminal threat without stating which version of the offense he committed; and (5) the
revised Kansas Sentencing Guidelines Act's (KSGA) use of judicial findings of prior

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convictions is unconstitutional under section 5 of the Kansas Constitution Bill of Rights.
We affirm Toliver's convictions but remand on sentencing issues.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2018, L.P. was working in her front yard when Toliver—who she did
not know then—came up to her and said he ran out of gas, so L.P. gave him some gas
from her lawn mower. Toliver came back an hour later to return the gas can. For many
months, Toliver kept coming back to L.P.'s house. L.P. opened her door the first few
times but after that it became "irritating." After a while, L.P. put up motion lights, got
different locks, put a peephole on the door, spray painted the window on her door, and
bought a doorbell camera because of Toliver.

On June 1, 2019, L.P. called the police when she found a rose on her car and her
camera showed Toliver in the area. Riley County Police Officer Paul Terpstra responded
to this call. L.P. thought that Toliver's behavior was escalating, so on June 14, 2019, she
obtained a protection from stalking order. During this time, Toliver was involved in
another unrelated incident where an individual did not want Toliver at their house, and
that individual had called the police.

On June 14, 2019, at around 7 p.m., Riley County Police K9 Officer Andrew
Toolin personally served the protection from stalking order on Toliver. Toliver asked
Toolin if the order related to the incident the prior week involving the other person, and
Toolin said he did not know. He directed Toliver to read the papers. The stalking order
did not have L.P.'s address but did state her name.

About two hours after being served, Toliver rang L.P.'s doorbell and she called the
police. Riley County Police Officer Steven McDiffett responded to L.P.'s call. At the
same time, Terpstra found and talked with Toliver, who was still in the area. Toliver told

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Terpstra he remembered being served with the protection order but stated he thought it
was for a different woman, named Ashley, not for L.P. After confirming that Toolin had
served Toliver, Terpstra placed Toliver under arrest for violating a protection order.

On June 17, 2019, the State charged Toliver with stalking and violation of a
stalking order. The district court held a preliminary hearing and bound Toliver over for a
trial on the charges. On December 12, 2019, the district court held a jury trial. L.P,
Toolin, McDiffett, and Terpstra testified to the above events.

Toliver testified on his own behalf. Toliver claimed that he read the protection
order and did not recognize L.P.'s name. He also claimed that Toolin told him the order
probably involved the incident with the other girl. Toliver stated he was not stalking L.P.,
he was just trying to see if she wanted to hang out and he had no intention of harming
her. Toliver said L.P. never told him to stop coming to her house. After hearing the
evidence and receiving the instructions, the jury found Toliver guilty of both counts.

The district court ordered a presentence investigation (PSI) report. The PSI
reflected that Toliver had a criminal history score of A—based on four person felonies,
including two 2014 convictions for criminal threat—making the range for his
presumptive sentence for the stalking conviction 17-16-15 months' imprisonment.

On February 24, 2020, the district court sentenced Toliver to a controlling term of
16 months' imprisonment with 12 months' postrelease supervision. The district court
ordered Toliver to pay BIDS attorney fees of $2,250. Toliver timely appealed the district
court's judgment.

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 DID THE STATE COMMIT PROSECUTORIAL ERROR DURING VOIR DIRE?

Toliver first claims the prosecutor committed prosecutorial error during voir dire
by using it as a chance to argue her case and to elicit a pre-judged decision from the jury.
The State counters that the prosecutor's voir dire was proper as it probed for bias and
prejudice. The State points out that none of the questions touched on the central issue of
the case, which was whether Toliver violated a protection order.

A claim of prosecutorial error is reviewable for the first time on appeal. State v.
Haygood, 308 Kan. 1387, 1397, 430 P.3d 11 (2018). The appellate court's review of a
prosecutorial error claim involves a two-step process: consideration of error and
consideration of prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). In
considering whether error has occurred, "the appellate court must decide whether the
prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial." 305 Kan. at 109. In examining
the prosecutor's statements, the appellate court reads the statements in context rather than
in isolation. State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018).

Toliver first challenges the prosecutor's question: "[W]ho here has ever helped a
stranger, by a show of hands?" Several potential jurors raised their hand and the
prosecutor asked whether those who responded could "tell us about one of those
situations?" A few described helping the elderly with various tasks. One juror then stated
that they gave a stranger $5 when the stranger was $5 short at the checkout register. The
prosecutor asked, "[W]hat if you saw that person again? How would that make you feel?"
The juror responded that they probably would not recognize them, it would not bother
them if the person knew where they lived, and it was unlikely that they would be
bothered if they kept seeing that person.

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 The prosecutor then asked the rest of the jurors if they agreed with the previous
juror's statement that if "you saw someone you helped again and again, it wouldn't bother
you?" Another potential juror responded that she would be suspicious if they continued to
come to her house. Another two jurors agreed that it would be suspicious. The prosecutor
then addressed a potential juror and asked for his "opinion on someone doing a good
thing like that, but then feeling these repercussions?" The juror responded that he would
be worried about free hand outs and the person wanting more each time.

Another juror nodded her head and the prosecutor asked if after helping someone
there would be a point where she could feel uncomfortable, to which the juror responded
if the person kept returning to her house, she would feel uncomfortable. Another juror
agreed. Again, the prosecutor asked another two potential jurors about their thoughts "on
that type of a situation." The prosecutor asked another juror her thoughts on what the
other two said, to which the juror responded that it would depend on if the person came
up to her door or was just out in the neighborhood. The prosecutor said that was a good
distinction and that part of her job would be to present the circumstances at trial and their
job would be to consider it. Another juror agreed that she would want more details
because she normally gives people the benefit of the doubt.

The prosecutor turned to another juror and asked their thoughts and they said they
also gave everyone the benefit of the doubt, but if it continued they would have a
problem with it. Similarly, another juror said he would want more details before he could
say whether the person's actions made him uncomfortable. The prosecutor asked whether
he would feel fear, but the juror said not "fear, just concern." The prosecutor asked
another three potential jurors about their thoughts on the situation, and one stated that it
would be different if the person was hanging around an apartment versus a single-family
home. The prosecutor then asked another potential juror their thoughts, the juror agreed
with the previous juror's statement, and the prosecutor asked for a show of hands on who
thought their home was more private than their work.

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 The prosecutor asked another juror whether he thought there were situations that
would require law enforcement's help. The juror said it depended on how long the
situation went on for and another juror agreed. The prosecutor asked the remaining two
potential jurors their thoughts "about this hypothetical situation?" They both said they
agreed with the prior statements about how it would depend on the details, but generally
they agreed that there could be a point where it would become suspicious.

Toliver asserts that the prosecutor asked 23 potential jurors their thoughts on the
facts of this case and the questions did not go to bias, prejudice, or partiality. Toliver
argues that the prosecutor's questioning sought to exact a pledge from the jurors and led
them to "prematurely deliberate and form opinions as to important issues in this
case . . . ."

The purpose of voir dire is to enable the parties to select jurors who are competent
and who could serve without bias, prejudice, or partiality. State v. Woods, 301 Kan. 852,
870, 348 P.3d 583 (2015). Toliver is correct in asserting voir dire should not be used to
ask jurors specific opinions about the case. Kansas caselaw has recognized that "staking"
jurors—the practice of asking case-specific questions designed to commit prospective
jurors to a particular view or have them disclose how they would vote—is improper. See
State v. Robinson, 303 Kan. 11, 136, 140, 363 P.3d 875 (2015), disapproved of on other
grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017).

While Toliver correctly identifies the limits of voir dire, he incorrectly asserts that
the prosecutor's questions constituted case-specific questions and that those questions
exacted a pledge from the jurors as to the ultimate issues in the case. The prosecutor did
not give any case specific facts during her questioning beyond the general idea that the
case may involve someone helping a stranger. The prosecutor then asked each juror what
they thought about that type of situation and whether the situation could ever turn into
something that made them feel uncomfortable. The questions did not discuss the facts of

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the case, stalking, or a protection order. Instead, the questions were general and vague. So
vague that some of the potential jurors stated that it would depend on the details of the
situation, and they could not decide how they would feel about a situation without
knowing more facts. But instead of further detailing the situation, the prosecutor
acknowledged that the details would be important and reiterated that she would be
required during trial to present those details. The prosecutor's questions revealed that the
jurors were willing to hear the evidence and decide the case impartially, a proper inquiry
for voir dire. Further, her questions were proper to determine whether any juror had a
bias or prejudice based on some experience with helping a stranger.

In sum, the prosecutor's questioning of the potential jurors does not rise to the
level of case specific questions meant to influence or stake the jury. Nothing in the record
suggests that the jurors prematurely deliberated the case or formed opinions on the case.
As discussed above, it seems the opposite is true, the jurors conveyed that they could not
share how they would feel about any situation without knowing more information. Thus,
the prosecutor did not err. Finding no error, we need not address prejudice.

ARE TOLIVER'S CONVICTIONS MULTIPLICITOUS?

Next, Toliver claims, for the first time on appeal, that his convictions are
multiplicitous. Toliver asserts that because violation of a protection order is a lesser
included crime of stalking, he cannot be convicted of both crimes. The State first asserts
that a panel of this court has rejected an identical lesser included offense argument for
violating a protection order and stalking. The State then conducts a multiplicity analysis
and argues that the two crimes are separate offenses.

Generally, this court does not hear issues raised for the first time on appeal. State
v. Gonzalez, 311 Kan. 281, 295, 460 P.3d 348 (2020). But Toliver correctly asserts that
the Kansas Supreme Court has heard a multiplicity issue for the first time on appeal

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under the exception for preventing the denial of fundamental rights. 311 Kan. at 295
(applying the second exception on the interests of justice and preventing denial of
fundamental rights to address multiplicity issue for first time on appeal). An appellate
court applies unlimited review to multiplicity challenges. 311 Kan. at 295.

"The Double Jeopardy Clause prevents a defendant from being punished more
than once for the same crime." 311 Kan. at 296. Multiplicity occurs when a single offense
is charged as several offenses in a charging document. Multiplicity involves a two-part
test: determining first whether the convictions arise from the same conduct, and second
whether by statutory definition there is only one offense. Under the first prong, the court
determines whether "the conduct is discrete," meaning the convictions do not arise from
the same conduct. 311 Kan. at 296. But if the two convictions arise from the same act or
transaction then the conduct is unitary, and the court must consider the second prong.
Under the second prong, if the convictions are for violating different statutes, the court
applies "the same-elements test": determining "'whether each offense contains an
element not contained in the other; if not, they are the 'same offen[s]e' and double
jeopardy bars additional punishment and successive prosecution.'" 311 Kan. at 296.

Because both Toliver and the State agree that both convictions arose from the
same conduct—Toliver's going to L.P.'s house on June 14, 2019, after being served with
a protection order—the first prong of the multiplicity analysis is fulfilled. The remaining
question is whether, under the same elements test, the crimes are the same offense.

But Toliver does not engage in a same elements test for multiplicity. Toliver's
brief merely defines multiplicity, then focuses on whether his two convictions are lesser
included offenses of the other under the Kansas lesser included crimes statute. Thus, we
could choose to address this issue only as a lesser included offense challenge. See, e.g.,
State v. Sinzogan, 53 Kan. App. 2d 324, 388 P.3d 176 (2017) (finding that although
appellant framed issue as a multiplicity issue, he only argued that the two convictions

8
were prohibited under the lesser included offense statute, so the panel found that any
multiplicity challenge was incidentally briefed). That said, both the lesser include offense
challenge and the multiplicity challenge require the same analysis.

The lesser included offense statute states that "[u]pon prosecution for a crime, the
defendant may be convicted of either the crime charged or a lesser included crime, but
not both." K.S.A. 2020 Supp. 21-5109(b). The statute then defines a lesser included crime
as "a crime where all elements of the lesser crime are identical to some of the elements of
the crime charged." K.S.A. 2020 Supp. 21-5109(b)(2). While the multiplicity analysis
does not explicitly refer to lesser included offenses, the same elements test follows the
same analysis. Both tests require the elements of the two convictions to be examined to
determine whether they each contain an element the other does not.

Toliver was charged and convicted of stalking under K.S.A. 2020 Supp. 21-
5427(a)(3) and violation of a protection order under K.S.A. 2020 Supp. 21-5924(a)(6).
Under K.S.A. 2020 Supp. 21-5427(a)(3):

"(a) Stalking is:
....
(3) after being served with, or otherwise provided notice of, any protective order
included in K.S.A. 21-3843, prior to its repeal or K.S.A. 21-5924, and amendments
thereto, that prohibits contact with a targeted person, recklessly engaging in at least one
act listed in subsection (f)(1) that violates the provisions of the order and would cause a
reasonable person to fear for such person's safety, or the safety of a member of such
person's immediate family and the targeted person is actually placed in such fear . . . ."

Subsection (f)(1) includes, among other actions, "appearing in close proximity to,
or entering the targeted person's residence . . . ." K.S.A. 2020 Supp. 21-5427(f)(1)(C).
Violation of a protection order is defined as "knowingly violating . . . a protection from
stalking . . . order . . . ." K.S.A. 2020 Supp. 21-5924(a)(6).

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 Both the State and Toliver acknowledge that a panel of this court has found that
violation of a protection order is not a lesser included offense of stalking. In Sinzogan,
the appellant, like Toliver, argued that his convictions for violating a protection order and
stalking were mutliplicitous under the lesser included offense statute. The panel cited the
definitions of the two crimes and pointed out that the statutes required different mental
culpabilities. 53 Kan. App. 2d at 327. Violation of a protection order requires the
offender act knowingly while stalking requires the offender to act recklessly. 53 Kan.
App. 2d at 327; compare K.S.A. 2020 Supp. 21-5924(a)(6) with K.S.A. 2020 Supp. 21-
5427(a)(3). The panel concluded that because the mental state for violating a protection
order was higher than the mental state for stalking, violation of a protection order was not
a lesser included offense of stalking. 53 Kan. App. 2d at 329.

Toliver asserts that the Sinzogan panel's analysis is erroneous because it did not
consider K.S.A. 2020 Supp. 21-5427(c), part of the stalking statute, which states: "For
the purposes of this section, a person served with a protective order . . . shall be presumed
to have acted knowingly as to any like future act targeted at the specific person or persons
named in the order or as advised by the officer." Toliver argues that because of
subsection (c), the culpable mental state for stalking—after the person has been served
with a protective order—is knowingly, and thus violation of a protective order is a lesser
included offense of stalking.

Toliver is correct that subsection (c) provides a presumption that a person served
with a protective order acted knowingly as to future violations. See, e.g., State v. Chavez,
310 Kan. 421, 427, 447 P.3d 364 (2019) (stating that the State could prove stalking after
the offender was served with a protective order by showing he acted recklessly or that he
met the conditions to invoke the presumption in subsection [c]). But Toliver is incorrect
in asserting that the presumption in subsection (c) would change the analysis. Both the
lesser included offense challenge and the multiplicity challenge focus on the elements of
the charged crime. See Gonzalez, 311 Kan. at 298 ("The same-elements test 'is concerned

10
solely with the statutory elements of the offenses . . . .'"); K.S.A. 2020 Supp. 21-
5109(b)(2) (stating lesser included offense is "a crime where all elements of the lesser
crime are identical to some of the elements of the crime charged"). Subsection (c) does
not change the mental culpability element of the crime. Instead, it merely provides a
presumption that the State could use to prove the mental culpability element.

More importantly, the State did not rely on the presumption in subsection (c) to
secure Toliver's stalking conviction. The district court instructed the jury that stalking
requires reckless conduct and violating a protection order requires knowing conduct. The
two crimes as submitted to the jury did not require the same mental culpability.

We find the Sinzogan panel's analysis to be persuasive. Toliver's conviction for
violating a protection order is not a lesser included offense of his stalking conviction
because violation of a protection order requires a higher mental culpability than stalking.
As a result, Toliver was properly convicted of both offenses.

DID THE DISTRICT COURT ERR IN ASSESSING BIDS ATTORNEY FEES?

Next, Toliver claims the district court erred in assessing BIDS attorney fees
without considering his financial resources. The State concedes that the district court
erred in awarding attorney fees without inquiring into Toliver's financial resources.

Toliver correctly asserts that this court can address this issue for the first time on
appeal. See State v. Robinson, 281 Kan. 538, 541, 132 P.3d 934 (2006) (addressing a
BIDS fee challenge for the first time on appeal because the issue involves a question of
law on admitted facts and is finally determinative of the case). This court has unlimited
review of whether a district court complied with the statutes regarding imposing attorney
fees. State v. Buck-Schrag, 312 Kan. 540, 555, 477 P.3d 1013 (2020).

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 K.S.A. 22-4513 governs imposing attorney fees:

"(a) If the defendant is convicted, all expenditures made by the state board of
indigents' defense services to provide counsel and other defense services to such
defendant or the amount allowed by the board of indigents' defense reimbursement tables
as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed
against the defendant and shall be enforced as judgments for payment of money in civil
cases.
"(b) In determining the amount and method of payment of such sum, the court
shall take account of the financial resources of the defendant and the nature of the burden
that payment of such sum will impose."

The Kansas Supreme Court has held that under the statute, the district court "'at
the time of initial assessment, must consider the financial resources of the defendant and
the nature of the burden that payment will impose explicitly, stating on the record how
those factors have been weighed in the court's decision.'" Buck-Schrag, 312 Kan. at 555
(quoting Robinson, 281 Kan. at 546). As both parties assert, the district court did not
consider Toliver's financial resources before assessing the BIDS fee. In fact, the district
court engaged in no analysis on the record when assessed the fee, merely stating, "There
is a BIDS fee of $2,250 . . . ." The proper remedy is for this court to vacate the
assessment of the BIDS attorney fees and remand for the district court to comply with
K.S.A. 22-4513. State v. Smyser, 297 Kan. 199, 207, 299 P.3d 309 (2013).

DID THE DISTRICT COURT IMPOSE AN ILLEGAL SENTENCE?

Next, Toliver claims his sentence is illegal because his criminal history score
included prior convictions of criminal threat without clarifying which version of the
offense he committed. Under the KSGA, a defendant's sentence depends on the crime of
conviction and the defendant's criminal history score. K.S.A. 2020 Supp. 21-6804(d).
"Prior convictions of a crime defined by a statute that has since been determined

12
unconstitutional by an appellate court shall not be used for criminal history scoring
purposes." K.S.A. 2020 Supp. 21-6810(d)(9). In October 2019, the Kansas Supreme
Court held "the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a
threat of violence is made in reckless disregard for causing fear causes the statute to be
unconstitutionally overbroad because it can apply to statements made without the intent
to cause fear of violence." State v. Boettger, 310 Kan. 800, 822, 450 P.3d 805 (2019),
cert. denied, 140 S. Ct. 1956 (2020).

Toliver correctly asserts that he can challenge his criminal history score for the
first time on appeal. See State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) (stating
the misclassification of a prior conviction creates an illegal sentence that can be corrected
at any time). Classification of prior convictions for criminal history purposes involves
statutory interpretation of the KSGA. Statutory interpretation is a question of law subject
to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

The PSI here reflected that Toliver had a criminal history score of A—based on
four person felonies, including two 2014 convictions for criminal threat—making his
presumptive sentence 17-16-15 months' imprisonment. See K.S.A. 2020 Supp. 21-
6804(a). The PSI does not reveal whether Toliver was convicted of the unconstitutional
reckless version of the offense or the intentional version of the offense. If he was
convicted of the reckless version of the offense on both convictions, then his criminal
history score would be B, lowering his presumptive sentence range to 15-14-13 months'
imprisonment. See K.S.A. 2020 Supp. 21-6804(a).

It is the State's burden to prove a defendant's criminal history. State v. Obregon,
309 Kan. 1267, 1275, 444 P.3d 331 (2019). Because the PSI does not provide the answer
of which version of the offense Toliver committed, this court would generally remand the
matter for resentencing, directing the district court to apply the "'modified categorical
approach'"—which allows the examination of "'charging documents, plea agreements,

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transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial,
and jury instructions and verdict forms'"—to determine which statutory alternative was
the basis for conviction. 309 Kan. at 1274 (discussing the modified categorical approach
in relation to alternative means out-of-state crimes).

The State concedes that under Boettger and Obregon, remand generally would be
necessary here because the PSI does not reflect which version of the offense Toliver
committed. But the State argues that this claim is moot because Toliver has served his
sentence and thus imposition of a shorter sentence would not affect him.

Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). The
mootness doctrine is one of court policy, under which the court is to "'determine real
controversies relative to the legal rights of persons and properties which are actually
involved in the particular case properly brought before it and to adjudicate those rights in
such manner that the determination will be operative, final, and conclusive.'" 295 Kan. at
840. An issue is moot if "'it is clearly and convincingly shown the actual controversy has
ended, the only judgment that could be entered would be ineffectual for any purpose, and
it would not impact any of the parties' rights.'" 295 Kan. at 840-41.

The party asserting mootness bears the initial burden of showing that a case is
moot. State v. Roat, 311 Kan. 581, 593, 466 P.3d 439 (2020). To support its claim that
this issue is moot, the State points to the sentence imposed by the district court. The
district court imposed 16 months' imprisonment to begin on February 18, 2020. And the
journal entry showed no prior cases for which the sentence was to run consecutive. Based
on the sentence imposed by the district court, perhaps Toliver has served his sentence and
is on postrelease supervision—assuming the journal entry is correct.

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 But when a party alleges a change in circumstances since the district court
proceedings has rendered the action moot, an appellate court must confirm the change in
circumstances before it can consider mootness. And an appellate court must scrutinize the
reliability of evidence before considering it a basis for appellate fact-finding. State v.
Castle, 59 Kan. App. 2d 39, 46, 477 P.3d 266 (2020). In Castle, this court held the State
met its initial burden of showing a sentencing appeal was moot by filing a notice of
change in custodial status under Kansas Supreme Court Rule 2.042 (2020 Kan. S. Ct. R.
18) stating the defendant had been released from prison with an attached "Certification of
Time Served" from the Kansas Department of Corrections. 59 Kan. App. 2d at 42.

The State ignored Supreme Court Rule 2.042 and has offered no direct evidence
that Toliver has served his sentence, although following the approved procedure would
have been an easy step for the State to complete. As a result, we find the State has failed
to meet its initial burden of showing that Toliver's sentencing issue is moot. Thus, we
must address the merits of Toliver's illegal sentence claim, and we agree the claim has
merit because of a possible error in his criminal history.

We need not vacate Toliver's sentence (except the BIDS attorney fees order that
we have already vacated) because his current sentence may be legal. But we remand this
matter to the district court to determine whether Toliver's prior convictions of criminal
threat stemmed from the intentional or reckless version of the statute. Unless the State
can show that at least one of Toliver's prior criminal threat convictions stemmed from
intentional conduct, keeping Toliver's criminal history score of A, then the district court
must vacate Toliver's sentence and resentence him using the correct criminal history
score. On remand, the State is not precluded from arguing to the district court that
resentencing is moot and providing proof for its assertion.

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 DOES TOLIVER'S SENTENCE VIOLATE THE KANSAS CONSTITUTION?

Finally, Toliver claims for the first time on appeal that the KSGA's use of judicial
findings of prior convictions for criminal history purposes is unconstitutional under
section 5 of the Kansas Constitution. But Toliver raises the same argument recently
rejected by the Kansas Supreme Court in State v. Albano, 313 Kan. 638, 487 P.3d 750
(2021). In Albano, our Supreme Court 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. The Kansas Court of Appeals
is duty bound to follow Kansas Supreme Court precedent unless there is some indication
our Supreme Court is departing from its previous position. State v. Rodriguez, 305 Kan.
1139, 1144, 390 P.3d 903 (2017). We have no indication that our Supreme Court is
departing from its recent unanimous decision in Albano.

Affirmed in part, vacated in part, and remanded with directions.

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