March 27th. The Kansas Supreme Court has issued its opinion in State v. Fischer (No. 100,334), a criminal law sentencing appeal regarding the use of juvenile convictions in criminal history score calculations for the Kansas Sentencing Guidelines. In a unanimous opinion, written by Justice Johnson, the court held that while its decision in In re L.M. required the abandonment of the previous jury-trial free juvenile court system, any convictions which were final at the time it was decided remain valid for calculating criminal history scores. Note: This case was argued in the January sitting of the Court, after former Chief Justice Kay McFarland’s retirement. District Judge David King served as the seventh member of the court hearing the case.
Sarah Fischer pled guilty to two felony charges (the Court’s opinion does not detail what they were) in Sedgwick County District Court. Her criminal history score was calculated and she was sentenced to 40 months imprisonment. Subsequently she appealed her sentence on the grounds that her criminal history score was driven by juvenile convictions under the old system, and therefore since those convictions did not stem from a jury trial, the exception under Apprendi for prior convictions should not apply. [Under Apprendi v. New Jersey the United States Supreme Court held that factors increasing a defendants sentence must be proven to a jury beyond a reasonable doubt, but it excepted past criminal convictions from this rule].
The State argued that the Court lacked jurisdiction to hear the appeal since a presumptive sentence under the Sentencing Guidelines (such as the one Fischer received) cannot be appealed. The Court rejected this argument on the grounds that since the appeal was based on a constitutional claim that the criminal history was inadmissable, if it found for Fischer the criminal history score would have been wrongly calculated and therefore the sentence she received would not have been a presumptive sentence.
Moving to the merits, the Court rejected Fischer’s argument. It briefly recapped its In Re L.M. decision which held that since the juvenile justice system now mirrored the adult one, the right to a jury trial also attached and old precedents holding otherwise (dating from before the changes to the system) were no longer valid. It then went on to note that In Re L.M. created a new rule of procedure, but did so only for future and pending cases. It explicitly stated that its effect was not retroactive. Therefore Fischer has had the due process she was entitled to, even if today it would happen under a different set of rules, and her past convictions still count.