State v. Hughes

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,716

STATE OF KANSAS,
Appellee,

v.

MICHAEL HUGHES,
Appellant.


SYLLABUS BY THE COURT

1.
The State must prove a defendant's criminal history score by a preponderance of
the evidence. Review is limited to determining whether substantial competent evidence
supports the district court's finding that the State has met this burden.

2.
When an appellate court reviews the effect of a previous holding, it is a question
of law subject to de novo review.

3.
In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985),
did not mandate that waivers of counsel obtained in municipal courts contain the exact
language of its sample. As long as the written waiver shows that the accused was
properly advised of his or her rights and that he or she knowingly and intelligently
waived those rights, the waiver, regardless of the specific language used, is sufficient for
purposes of showing that the defendant's right to counsel under the Sixth Amendment to
the United States Constitution was not violated.



2

4.
The evidence in the record must answer two critical questions in order to establish
an effective knowing and voluntary waiver of counsel; first, whether the defendant was
fully advised and properly informed of his or her right to counsel and second, whether,
upon having been fully advised and properly informed, the defendant made a clear
determination not to have counsel represent him or her before the court.

5.
The burden to prove the truth of a defendant's criminal history score is on the
State. Once a defendant files a written objection to their criminal history, it is only after
the State has met its burden to produce such evidence that the burden to produce evidence
may shift to the defendant. The burden of proof, however, never shifts.

6.
This court has previously concluded that the State does not have to prove criminal
history to a jury beyond a reasonable doubt. This rule applies to prior juvenile
adjudications as well.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 7, 2008.
Appeal from Sedgwick district court; JEFF GOERING, judge. Judgment of the Court of Appeals affirming the district
court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and
remanded with directions. Opinion filed February 12, 2010.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and
Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

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ROSEN, J.: Michael Hughes seeks review of the Court of Appeals decision
affirming the 19-month prison sentence he received for his aggravated escape from
custody conviction. Specifically, he challenges the aggregation of the three uncounseled
misdemeanor convictions used to enhance his sentence. He argues that the State failed to
meet its burden to prove that he made a knowing and intelligent waiver of the right to
counsel because the waiver form he signed in two of those actions did not comply with
the standards established by this court in In re Habeas Corpus Application of Gilchrist,
238 Kan. 202, 708 P.2d 977 (1985).

Hughes pleaded guilty to aggravated escape from custody. His presentence
investigation (PSI) report listed three prior uncounseled misdemeanor convictions that
were converted to a felony for criminal history purposes pursuant to K.S.A. 21-4711(a).
Prior to sentencing, he filed a motion challenging his criminal history score. Hughes
complained that it was improper to aggregate the misdemeanor convictions because the
waiver of counsel obtained in those cases was insufficient to prove that the waiver was
knowingly and intelligently made.

The district court conducted a hearing on the motion. At the hearing Hughes
argued that in entries 17 and 18 of the PSI report—Dodge City Municipal Court cases
Nos. 95-80391 and 95-80579—the waiver form he signed did not comply with Gilchrist.
He asserted that the Gilchrist sample waiver form included a certification by the judge; a
certification not included on the waiver forms he signed. Hughes contended that without
that certification, the State could not meet its burden to prove he had knowingly and
intelligently waived his right to counsel. Hughes also contested entry 3 in the PSI
report—a municipal court conviction from Wichita—arguing that despite his signing a
valid waiver, it was impossible to ascertain if a knowing or intelligent waiver was
actually made without a record to identify what was said at the time. Hughes has
apparently abandoned that argument, as he did not raise it before either the Court of
4

Appeals or in his petition for review. See State v. Hughes, No. 98,716, unpublished
opinion filed November 7, 2008, slip op. at 2.

The State responded that in the Dodge City cases, the waiver form Hughes signed,
which consisted of one form with both case numbers on it, was identical to what Gilchrist
required, and the lack of certification by the judge should not affect the determination of
whether Hughes intelligently and knowingly waived his right to counsel.

The district court ruled that Hughes had signed the waiver form and acknowledged
that he was fully advised by the court of his right to counsel at the time of the
convictions. The court noted that the waiver form was not diminished by the omission of
the certification recommended in Gilchrist because, by signing the form, Hughes
acknowledged that he was given the substantive information at the heart of Gilchrist.
The district court reasoned that Hughes' signature on the waiver form should "have
consequences." Given that the form was signed by Hughes and the municipal court
judge, the district court believed requiring an additional certification was surplusage.
Accordingly, Hughes was sentenced to 19 months in jail.

Hughes appealed his sentence. On appeal he renewed his criminal history score
challenge. He also alleged that it was error to use his criminal history—specifically his
prior adult convictions and a prior juvenile adjudication—to increase his sentence
without submission to a jury, arguing this was a violation of the Sixth and Fourteenth
Amendments to the United States Constitution.

The Court of Appeals reviewed Gilchrist at length and determined that its
requirements focused more on substance than on form. The court reasoned that the
purpose of the waiver form was to assure Hughes had knowingly and intelligently waived
his right to counsel, and if that fact was ascertainable from the form used, then the
Gilchrist requirements were met. Consequently, the Court of Appeals concluded that the
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municipal courts were not required to utilize an exact copy of the sample form from
Gilchrist and that the waiver signed by Hughes was sufficient. Hughes, slip op. at 8-9.

The Court of Appeals did not address Hughes' next argument, raised for the first
time on appeal; Hughes contends that to be valid, the waiver required acknowledgment
that he was informed of his right to appointed counsel if he was indigent. Hughes, slip
op. at 9. Ultimately, the court concluded that there was substantial competent evidence
that Hughes had been fully advised of his right to counsel and his subsequent waiver was
knowingly and intelligently given. This court granted Hughes' petition for review of the
Court of Appeals decision. Additional facts will be provided as necessary to the analysis
of the issues presented. We now address the merits of Hughes' claims.

I. GILCHRIST'S WAIVER REQUIREMENTS


For his first issue, the appellant argues that two of his prior convictions should not
have been included in the calculation of his criminal history because the written waiver of
the right to counsel that he signed in those cases did not include a certification by the
municipal court judge that is identical to the example waiver form offered by this court in
Gilchrist.

The State must prove a defendant's criminal history score by a preponderance of
the evidence. K.S.A. 21-4715(c). In that respect, this court's standard of review is
limited to determining whether substantial competent evidence supports the district
court's finding that the State has met this burden. State v. Presha, 27 Kan. App. 2d 645,
648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). However, to the extent that we are
asked to review the effect of the holding in Gilchrist, we are presented with a question of
law subject to de novo review. See State v. Jefferson, 287 Kan. 28, 33-34, 194 P.3d 557
(2008).
6


Hughes' argument that the waiver of counsel he signed was invalid stems from this
court's holding in Gilchrist, 238 Kan. 202. In Gilchrist, this court examined the
requirements for a valid waiver of the right to counsel. Gilchrist was found guilty of
battery in municipal court. He was not represented by counsel at trial, and no record was
made of the proceeding. At sentencing, Gilchrist informed the court that he wanted
counsel present. Despite this request, the court proceeded with sentencing, stating that
Gilchrist could appeal the decision within 10 days. Although Gilchrist informed his
counsel that he wished to appeal, an appeal was never filed. 238 Kan. at 203-04.

While in jail, Gilchrist filed a writ of habeas corpus with the district court,
complaining that he had been denied his right to counsel in the municipal court
proceedings. At the hearing, the municipal court judge, who had prior knowledge of
Gilchrist's personal circumstances and knew he was not indigent, testified that at the time
of Gilchrist's first appearance, he read to him the charges, explained the penalties, and
asked if Gilchrist intended to have an attorney at trial. He testified that Gilchrist
responded that he did not wish to have an attorney. Gilchrist, 238 Kan. at 204. Gilchrist
admitted under oath that this testimony was accurate. In the end, the district court denied
the writ because of Gilchrist's failure to directly appeal. 238 Kan. at 204-05.

That denial was thereafter appealed to this court. While it was ultimately decided
that Gilchrist had been both properly advised of his rights and validly waived them by
admitting that the judge's testimony was accurate, this court developed a procedure for
recording future waivers of the right to counsel in municipal courts. Without requiring
that every waiver of counsel be made on the record—a process too burdensome for the
municipal courts—this court concluded that obtaining a written waiver was an effective
solution. 238 Kan. at 209.

A sample of the suggested waiver form was included in the opinion:
7


"SAMPLE WAIVER
FOR THE CITY OF __________, _______________ COUNTY, KANSAS
CITY OF __________________, Plaintiff,
(Municipal Court Identification
vs. No. ____)

__________, Accused Person

WAIVER OF COUNSEL
The undersigned acknowledges that he or she has been informed by the Municipal Court
of the charges against him or her, of the possible penalty, of the nature of the proceedings before
the Court, of his or her right to have counsel appointed to represent him or her, if he or she is
financially unable to obtain counsel and is determined to be indigent, all of which the undersigned
fully understands. The undersigned now states to the Court that he or she does not desire to have
counsel, either retained or appointed, to represent him or her before the Court, and wishes to
proceed without counsel.
_____________________________________

SUBSCRIBED AND SWORN TO before me this ___ day of ____, 19___.

______________________________________
I hereby certify that the above named person has been fully informed of the charges
against him or her and of the accused's right to have counsel, either retained or appointed, to
represent the accused at the proceedings before this Court and that the accused has executed the
above waiver in my presence, after its meaning and effect have been fully explained to the
accused, this ___ day of ____, 19___.
______________________________________
JUDGE OF THE MUNICIPAL COURT"

238 Kan. at 212.

It is the certification language at the bottom of the sample form that is the source
of the present complaint.

8

Gilchrist indicated that a properly executed written waiver, such as the example
above, would meet the State's burden to prove that a defendant's waiver of counsel was
knowingly and intelligently made. 238 Kan. at 208-09. Importantly, however, the court
also held that admissions by the defendant regarding the waiver could be used to cure any
defect resulting from failing to obtain the written waiver. 238 Kan. at 210. This court
held that Gilchrist's acknowledgement that the municipal court's testimony was accurate
"cure[d] any defect resulting from the absence of a written waiver and eliminate[d] the
problem of proof." 238 Kan. at 210. Thus, we ruled that it is not the specific form of the
waiver, but rather the ability to verify the specific circumstances under which it was
given that is the critical factor in deciding whether a waiver is valid.

Post-Gilchrist, the Court of Appeals has issued several opinions reviewing how
municipal courts have applied Gilchrist's requirements when accepting a defendant's
waiver of counsel. See State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001); State v.
Likins, 21 Kan. App. 2d 420, 903 P.2d 764, rev. denied 258 Kan. 861 (1995); State v.
Flores-Picasso, No. 100,602, unpublished opinion filed August 7, 2009; State v. Reed,
No. 90,170, unpublished opinion filed March 19, 2004, rev. denied 278 Kan. 851 (2004).
Of these, the State cites Likins for the proposition that a signed waiver form and a journal
entry indicating the defendant was advised of his rights was enough to show that the
waiver was knowingly and intelligently given. Likins, 21 Kan. App. 2d at 433.

In Likins, the defendant challenged the sufficiency of his signed waiver form as
failing to demonstrate that he knowingly and intelligently waived counsel. However, the
court did not address whether the form itself was satisfactory in light of Gilchrist. While,
as the State suggests, the court did conclude that "[t]he record affirmatively show[ed]
defendant was advised of his right to counsel and waived that right" and that there was no
evidence "suggesting any irregularity with the prior plea," the court did so under the
assumption that the challenge was a collateral attack, requiring that "every reasonable
presumption in favor of the validity of the judgment should be indulged." 21 Kan. App.
9

2d at 433. It therefore did not evaluate whether the documents in the record addressing
his waiver complied with the Gilchrist requirements.

In contrast, Hughes cites State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001),
where the Court of Appeals distinguished Likins. In Allen, the court reasoned that a
challenge to the constitutional validity of prior convictions required that the court do
more than merely "presume that all of the actions of the municipal court followed the law
. . ., there must be a showing that the waiver was knowingly and intelligently made, and
the attempted waiver must be strictly construed." 28 Kan. App. 2d at 791-92. Based on
that standard, the Court of Appeals concluded that a journal entry with the language
"defendant has been advised of his constitutional rights and enhancements," coupled with
the handwritten word "waiver," was not enough to meet the State's burden to show that he
had knowingly and intelligently waived his right to counsel. Specifically, the court noted
that the word "waiver" did not affirmatively explain what was being waived and
remanded the issue for further findings. 28 Kan. App. 2d at 788-91.

Two unpublished Court of Appeals opinions are more on point. In Reed, Reed
challenged the use of two of his prior uncounseled misdemeanor convictions to enhance
his sentence because the State had not shown that they were obtained after a knowing and
intelligent waiver of counsel. In one of the convictions, Reed had signed a waiver form
that followed the Gilchrist sample form; however, it lacked a complete caption, contained
no case or docket number, was undated, and was not file stamped. Reed never signed a
waiver form in the other conviction, and instead the State presented a journal entry that
contained a handwritten note stating "6/16/00 factual basis-fully advised of rights, waives
them." Reed, slip op. at 5. The Court of Appeals determined that these entries fell short
of meeting the State's burden to show that in both cases the waiver was knowingly and
intelligently given.

10

Another unpublished opinion of the Court of Appeals was filed after the petition
for review was granted in this case. In Flores-Picasso, slip op. at 1, defendant Flores-
Picasso also challenged the aggregation of his two prior uncounseled misdemeanor
convictions. Specifically, he argued that his waiver was not knowingly and intelligently
made because the forms he signed did not fully inform him of his right to counsel.
Flores-Picasso, slip op. at 1-2.

The forms at issue in Flores-Picasso contained very detailed language explaining
the nature of the charges against him and the maximum possible punishment; his right to
an attorney and the method for appointment if he could not afford one; and the benefits of
representation and the disadvantages of proceeding to trial without counsel. Further, both
written waiver forms contained certification statements signed by the municipal court
judge acknowledging that the judge had informed Flores-Picasso of these rights, which
he then intelligently waived in the judge's presence. Flores-Picasso, slip op. at 2-3.

Importantly, while the forms used were quite detailed, they contained language
different than the sample form in Gilchrist. In fact, the forms Flores-Picasso signed
provided more information and in greater detail than the Gilchrist example. In
specifically addressing this discrepancy, the Court of Appeals stated:

"Gilchrist did not mandate that waivers of counsel obtained in municipal courts contain
the exact language of its sample. . . . As long as the written waiver shows that the 'accused was
properly advised of his or her rights and that he or she knowingly and intelligently waived those
rights,' the waiver, regardless of the specific language used, is sufficient for purposes of showing
that the defendant's Sixth Amendment right to counsel was not violated." Flores-Picasso, slip op.
at 4 (citing Gilchrist, 238 Kan. at 210).

Thus, with substance prevailing over form, the Court of Appeals concluded that the forms
Flores-Picasso signed did constitute substantial competent evidence that he made a
knowing and intelligent waiver of his right to counsel. Flores-Picasso, slip op. at 4.
11


As in Flores-Picasso, the Court of Appeals in the present case examined
Gilchrist's requirements and concluded:

"Gilchrist did not mandate that waivers of counsel obtained in municipal courts contain
the exact language of its sample. The court specifically noted that the sample was a suggested
form which it recommended for use in municipal courts. [Gilchrist,] 238 Kan. at 209. Gilchrist
clearly focused on whether the defendant knowingly and intelligently waived the right to counsel,
which can be accomplished without specific certification language by the judge in the waiver
form. '[T]he reason for the requirement of a record of the proceedings and a written waiver of
counsel are for the purpose of proving an accused was properly advised of his [or her] rights and
that he [or she] knowingly and intelligently waived those rights.' 238 Kan. at 209-10." Hughes,
slip op. at 8.

As further support for its position, the Court of Appeals relied on State v. Strayer,
242 Kan. 618, 628, 750 P.2d 390 (1988), and State v. Turner, 239 Kan. 360, 365-68, 721
P.2d 255 (1986). Both cases, decided after Gilchrist, upheld waivers even though no
written waiver form was signed by either defendant. Hughes, slip op. at 8-9. In Strayer,
this court determined that while the district court judge never explicitly informed the
defendant about his right to have an attorney present, because the defendant had
apparently hired and fired an attorney during the course of the litigation, and had also
been involved in previous legal proceedings, the defendant's statements to the court that
he had no objection to continuing with sentencing absent counsel was a knowing and
intelligent waiver of his right to have counsel at sentencing. 242 Kan. at 628.

Likewise, in Turner, based on the review of an expanded record, this court
concluded that the defendant's failure to dispute a pretrial journal entry stating that the
court had informed him of his right to counsel and requirements for appointment of
counsel, together with entries in the plea transcript showing that he was asked whether he
had been informed of his right to counsel, was enough to show that the defendant's
12

waiver was knowingly and intelligently made despite the lack of a written waiver. 239
Kan. at 367-68.

The Court of Appeal's reliance on Strayer and Turner is not completely
determinative because neither of the cases involved municipal court waivers. More to the
point, neither opinion addresses the issue of a written waiver at all. Both simply analyze
what other types of evidence could satisfy the State's burden of proof. Further, both
decisions relied in part on transcripts from the record, something generally not available
in municipal court—the main reason for requiring a written waiver to begin with.

Ultimately, however, we find that Gilchrist does not require that municipal courts
use forms identical to the sample included in the opinion. At the heart of Gilchrist was
finding a way to assure that a defendant's right to counsel was adequately protected
without unduly burdening the municipal courts. What is clear after Gilchrist is that
because municipal courts are not courts of record, a written document should be obtained
so that there is evidence that the defendant was fully informed of his or her rights to
counsel and that any waiver thereof was knowingly and intelligently made. Gilchrist
merely mandated that the use of the sample written waiver satisfies the constitutional
requirement of establishing a knowing and voluntary waiver of counsel. It did not
invalidate the use of other methods for recording the same information. This court has on
many occasions reiterated that "'"'[t]he law of this state is realistic. Substance prevails
over form. '"'" Kelly v. VinZant, 287 Kan. 509, 528, 197 P.3d 803 (2008); State v. Fewell,
286 Kan. 370, 389, 184 P.3d 903 (2008). As long as the necessary information is
ascertainable from other means or waiver forms, Gilchrist's requirements are satisfied.

II. HUGHES' CRIMINAL HISTORY SCORE


13

Having found a waiver form identical to that contained in Gilchrist is not required
for an effective waiver of counsel, we now turn to Hughes' next issue: was there
substantial competent evidence in the record to support the finding that the State met its
burden to show by a preponderance of the evidence that Hughes had a criminal history
score of A?

What is apparent from Gilchrist is that the evidence in the record must answer two
critical questions in order to establish an effective knowing and voluntary waiver of
counsel; first, whether the defendant has been fully advised and properly informed of his
or her right to counsel and, second, whether, upon having been fully advised and properly
informed, the defendant made a clear determination not to have counsel represent him or
her before the court. Based on its interpretation of Gilchrist, Strayer, and Turner, as well
as its review of the contents of the form signed by Hughes, the Court of Appeals
concluded that there was substantial competent evidence to establish both that Hughes
had been fully advised of his right to counsel and that his subsequent written waiver was
knowingly and intelligently given. Hughes, slip op. at 9.

In his petition for review, Hughes suggests that proof that his waiver was knowing
and intelligent can only occur when there is "some record that the court made an inquiry
into the defendant's desire to waive counsel" and that because the certification is not
included in the Dodge City form, that requirement has not been met. He relies on a
portion of Gilchrist where the court, in reviewing the holding of State v. Andrews, 5 Kan.
App. 2d 678, 623 P.2d 534 (1981), stated:

"[Andrews] held that even if the trial court conducted an extensive inquiry into the defendant's
desire to waive counsel, if that inquiry did not appear in the record, the State could not meet its
burden of proving that defendant's waiver of counsel was knowingly and intelligently made and
therefore, defendant's Sixth Amendment right to counsel was abridged." Gilchrist, 238 Kan. at
208-09.

14

However, in Andrews the only record entry pertaining to the defendant's waiver was the
judge's statement in the trial transcript that "[t]he record may show that he is appearing
personally, acting in his own defense, having waived his right to counsel." Andrews, 5
Kan. App. 2d at 680. The defendant never signed a written waiver, nor was there any
other express indication in the record that he had been advised of any rights at all, just the
above reference that he had waived his right to counsel. All Andrews stands for in this
context is to reinforce what Gilchrist already established—that there must be some record
that the defendant was fully apprised of his or her rights to counsel and that despite that
information he or she knowingly and intelligently waived that right.

Importantly, it does not automatically follow that just because the Gilchrist
certification language has not been included in the waiver form, Hughes did not make a
knowing and intelligent waiver. As discussed above, Kansas courts have not interpreted
Gilchrist as requiring that a waiver form be identical to the suggested sample. See, e.g.,
Flores-Picasso, slip op. at 4. Rather, the courts look for substantial competent evidence
from the record related to the waiver supporting the district court's conclusion. See State
v. Mattox, 280 Kan. 473, 484, 124 P.3d 6 (2005) (noting that the district court's findings
related to waiver of Miranda rights were supported by substantial competent evidence);
State v. Siesener, 35 Kan. App. 2d 649, 650, 137 P.3d 498 (2005), rev. denied 281 Kan.
1381 (2006); State v. Presha, 27 Kan. App. 2d 645, 648, 8 P.3d 14, rev. denied 269 Kan.
939 (2000). Substantial competent evidence has been described by this court as "that
which possesses both relevance and substance and which furnishes a substantial basis in
fact from which the issues can reasonably be resolved." State v. Sharp, 289 Kan. 72, 88,
210 P.3d 590 (2009).

Here, there is no question that Hughes believes he was apprised of his right to
counsel and that he signed a form that expressly states he was so advised and knowingly
and intelligently waived that right. That form is also signed by the municipal court judge
underneath the following language: "Subscribed and sworn to before me this 25 day of
15

July 1995." Hughes does not challenge the truth of the waiver he signed, but rather
contends that the waiver form itself does not meet the standard set forth in Gilchrist.
Hughes maintains that the absence of the certification by the judge means that the
requirement establishing that he was properly informed and fully advised of his right to
counsel by the person charged with doing so was not met.

Hughes makes a valid point. The waiver form utilized by the Dodge City Municipal
Court is sufficient in establishing what Hughes may have believed his rights to be and a
voluntary waiver of those perceived rights. Absent however, is any verification or
validation of what he was told, a function that the Gilchrist certification satisfies. It is not
up to the defendant to know what "fully advised" means. It is the judge who is burdened
with assuring that Hughes' rights have been adequately protected. See State v. Carter,
284 Kan. 312, 321, 160 P.3d 457 (2007) ("It is the task of the district court judge to
insure that a defendant's right to counsel under the Sixth Amendment to the United States
Constitution is honored.") Recently, we clarified that when a defendant exercises his or
her statutory right to challenge the accuracy of the convictions contained in his or her
criminal history worksheet, the State must carry the burden of producing further evidence
proving the truth of the convictions by a preponderance of the evidence. State v. Schow,
287 Kan. 529, 539-40, 197 P.3d 825 (2008). The State may not shift the burden onto the
defendant to disprove the convictions. Such a process, we said, ignores the plain
language of K.S.A. 21-4715(c) and suggests that we construe a criminal history
worksheet in favor of the State—a result inconsistent with the well-established principle
that criminal statutes are strictly construed in favor of the accused. Schow, 287 Kan. at
539-40. The burden to prove the truth of a defendant's criminal history score remains
with the State. Once a defendant files a written objection to his or her criminal history, it
is only after the State has met its burden to produce such evidence that the burden to
produce evidence may shift to the defendant. K.S.A. 21-4715(c). The burden of proof,
however, never shifts.

16

Similarly, requiring Hughes to "disprove" that the waiver information recited to
him by the court was adequate when it was the court's responsibility to do so is similar to
the burden shifting we said was improper in Schow. Not only does it place the
responsibility for full knowledge and understanding of the law with the wrong person, it
also requires this court to construe the waiver form in favor of the State. Had the State
called the municipal court judge to testify before the district court or provided other
evidence that the waiver information Hughes received was in fact the requisite
information, then the burden of production would have shifted to Hughes should he
further contest the issue. See Gilchrist, 238 Kan. at 210 (Gilchrist's acknowledgement
that the municipal judge's testimony was accurate "cure[d] any defect resulting from the
absence of a written waiver and eliminate[d] the problem of proof."). Because the State
has failed to present any evidence to show that the waiver advice Hughes acknowledged
receiving was in actuality the "proper" or "fully informed" advice, the waiver form
utilized here, standing alone, does not satisfy the requirements set forth in Gilchrist.

Previous decisions interpreting similar issues have consistently held that a simple
acknowledgement that the defendant waived his or her rights is not enough to clearly
show what rights the defendant has waived. See, e.g., Allen, 28 Kan. App. 2d at 791;
Reed, slip op. at 4-6. Without the certification language, all that can be readily
determined is that a defendant acknowledged being informed of his or her rights, but we
cannot ascertain whether the proper or full panoply of rights was ever communicated.

Thus, the importance of the judge's certification in the waiver cannot be
understated. As municipal courts are not courts of record, the certification provides a
means for a reviewing court to be assured that the municipal court satisfied its own duty
to protect the defendant's rights. A form similar to that which was set forth (and actually
cited to) in Gilchrist was included in the Municipal Judges' Manual, a document prepared
for and distributed to all municipal courts in the State. The fact that the sample form
included therein also requires the judge's certification underscores the importance of
17

recording this bifurcated duty. Not only must a defendant clearly acknowledge a
knowing and voluntary waiver of right to counsel, but the record must also establish that
the judge has satisfied the obligation to insure that the proper information has been
communicated so that the defendant may intelligently make that choice. The State has
failed to meet its burden to show that the waiver in Hughes' two prior misdemeanor
convictions was knowingly and intelligently made. This matter is reversed and remanded
to the district court for resentencing based on a recalculated criminal history consistent
with this opinion.

Hughes also suggests that because the waiver form did not include an express
statement acknowledging that he was informed of his right to appointed counsel if he was
indigent, the waiver was not knowingly and intelligently made. The Court of Appeals did
not address this issue, noting that this argument was made for the first time on appeal.
Consequently, the challenge on this question is not properly before the court and, further,
we need not reach it due to our resolution of the previous issue. See State v. Bello, 289
Kan. 191, 193, 211 P.3d 139 (2009); State v. Shopteese, 283 Kan. 331, 339, 153 P.3d
1208 (2007) (issues not raised before trial court cannot be raised on appeal).

Finally, Hughes asserts that use of his prior convictions as well as a prior juvenile
adjudication to calculate his criminal history score violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution where evidence of those
convictions was not proven beyond a reasonable doubt. He acknowledges that this court
has already decided the issue; he includes it merely to preserve it for federal review.

This court has previously concluded that the State does not have to prove criminal
history to a jury beyond a reasonable doubt. State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d
781 (2002). Further, this court analyzed post-Apprendi decisions and reaffirmed the
Ivory rule. See State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006), and State v.
Manbeck, 277 Kan. 224, 229, 83 P.3d 190 (2004). Finally, this court recently determined
18

that the rule applies to prior juvenile adjudications as well. See State v. Fischer, 288
Kan. 470, 476, 203 P.3d 1269 (2009); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732, cert.
denied 537 U.S. 1104 (2003). Hughes' arguments will not be revisited at this time.

The Court of Appeals decision affirming the district court's ruling is affirmed in
part and reversed in part. This matter is remanded to the district court for resentencing.