21-6814.
Offender's criminal history; admission in court or determined by judge; burden of proof; notice of error by offender; challenge for first time on appeal, burden of proof and procedure.
(a) The offender's criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.
(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender's criminal history prepared for the court by the state shall satisfy the state's burden of proof regarding an offender's criminal history.
(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of proving the disputed portion of the offender's criminal history. The sentencing judge shall allow the state reasonable time to produce evidence to establish its burden of proof. If the offender later challenges such offender's criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender's criminal history by a preponderance of the evidence.
(d) If an offender raises a challenge to the offender's criminal history for the first time on appeal, the offender shall have the burden of designating a record that shows prejudicial error. If the offender fails to provide such record, the appellate court shall dismiss the claim. In designating a record that shows prejudicial error, the offender may provide the appellate court with journal entries of the challenged criminal history that were not originally attached to the criminal history worksheet, and the state may provide the appellate court with journal entries establishing a lack of prejudicial error. The court may take judicial notice of such journal entries, complaints, plea agreements, jury instructions and verdict forms for Kansas convictions when determining whether prejudicial error exists. The court may remand the case if there is a reasonable question as to whether prejudicial error exists.
History:
L. 2010, ch. 136, § 295; L. 2022, ch. 73, § 4; July 1.
Notes of Decisions
Cited in
110
cases (
88 in the last 5 years), 2014–2026 · leading case:
State v. Roberts, 498 P.3d 725 (Kan. 2021).
State v. Evans (Kan. 2026).
· cites it 13× “The decisive issue, then, was who bore the burden of proving which statutory alternative formed the basis of the conviction.”
State v. Dewey (Kan. Ct. App. 2026).
· cites it 12× “He argues that the procedure set forth in K.S.A. 21-6814 protects his due process rights and a failure to follow the procedure denied him process.”
State v. Garcia (Kan. Ct. App. 2026).
· cites it 8× “Garcia is also allowed to challenge his criminal history for the first time on appeal under K.S.A. 21-6814(d). As a result, we may consider Garcia's challenge to the classification of his prior criminal threat conviction for the first time on appeal.”
State v. Bosley (Kan. Ct. App. 2026).
· cites it 7× “Under K.S.A. 21-6814(a), a defendant shall either admit to criminal history in open court or the district court will determine it by a preponderance of the evidence at the sentencing hearing.”
State v. Vicknair (Kan. Ct. App. 2026).
· cites it 7× “Vicknair is also allowed to challenge his criminal history for the first time on appeal under K.S.A. 21-6814(d). Vicknair concedes that while he did not admit his score, he also did not object to the criminal history calculation during sentencing.”
State v. Herrera (Kan. Ct. App. 2026).
· cites it 7× “21-6814(b) establishes that the PSI is presumptive proof to a preponderance of the evidence of a criminal defendant's criminal history.”
State v. Collins (Kan. Ct. App. 2026).
· cites it 7× “Effective July 1, 2022, the Legislature amended K.S.A. 21-6814 to address appellate review of criminal history score challenges raised for the first time on appeal: "If an offender raises a challenge to the offender's criminal history for the first time on appeal, the offender…”
State v. Leach (Kan. Ct. App. 2026).
· cites it 6× “2 K.S.A. 21-6814(d) governs the procedures for when an offender challenges their criminal history score for the first time on appeal: "[T]he offender shall have the burden of designating a record that shows prejudicial error.”
— K.S.A. § 21-6814(a) — 49 cases
— K.S.A. § 21-6814(b) — 33 cases
— K.S.A. § 21-6814(c) — 61 cases
— K.S.A. § 21-6814(d) — 18 cases
State v. Garcia (Kan. Ct. App. 2026).
“Garcia is also allowed to challenge his criminal history for the first time on appeal under K.S.A. 21-6814(d). As a result, we may consider Garcia's challenge to the classification of his prior criminal threat conviction for the first time on appeal.”
State v. Vicknair (Kan. Ct. App. 2026).
“Vicknair is also allowed to challenge his criminal history for the first time on appeal under K.S.A. 21-6814(d). Vicknair concedes that while he did not admit his score, he also did not object to the criminal history calculation during sentencing.”
State v. Leach (Kan. Ct. App. 2026).
“2 K.S.A. 21-6814(d) governs the procedures for when an offender challenges their criminal history score for the first time on appeal: "[T]he offender shall have the burden of designating a record that shows prejudicial error.”
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