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March 27, 2026 Get Citation Alerts Download PDF Add Note

State v. Clay

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 128448

• Precedential Status: Non-Precedential

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 128,448

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRISS M. CLAY,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Submitted without oral argument.
Opinion filed March 27, 2026. Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.

Before ARNOLD-BURGER, P.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: Criss M. Clay entered a guilty plea to several felonies in a plea
agreement encompassing three cases. At sentencing, the district court denied Clay's
objections to his criminal history score. Finding no reversible error, we affirm the district
court's inclusion of Clay's two prior criminal threat convictions as person felonies in his
criminal history calculation.

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FACTUAL AND PROCEDURAL HISTORY

In July 2023, the State charged Clay with four counts of forgery and two counts of
identity theft—all felonies—across three separate cases in Sedgwick County: 23CR1546
(Case 1), 23CR1547 (Case 2), and 23CR1548 (Case 3). Clay subsequently agreed to
plead guilty to most of the charges, except for a forgery count in Case 2 that the State
agreed to dismiss. The presentence investigation (PSI) report created for Clay showed his
criminal history score was B, based on two person-felony convictions for criminal threat
in 2011 and 2017, which are the subject of this appeal.

Before sentencing, Clay filed a notice objecting to his criminal history score and
asserting a "good faith belief" that the criminal threat convictions were not scorable but
also noting that he could not determine from the face of the information contained in the
PSI report whether the criminal threat convictions should be scorable. The issue was fully
argued before the district court. The district court found his convictions were properly
scored. It found that although our Supreme Court had found the reckless criminal threat
section of K.S.A. 21-5415(a)(1) unconstitutional in State v. Boettger, 310 Kan. 800, 820,
450 P.3d 805 (2019), the United States Supreme Court had, in essence, overruled the
Kansas decision in Counterman v. Colorado, 600 U.S. 66, 69, 143 S. Ct. 2106, 216 L.
Ed. 2d 775 (2023). The court reasoned that since K.S.A. 21-5415(a)(1) is now
constitutional under Counterman, Clay's prior convictions under that statute can be
scored.

In the alternative, the district court found that the plea transcripts and charging
documents provided a sufficient factual basis to count both convictions, explaining that
each offense "clearly" involved intentional conduct on Clay's part, despite being charged
in the alternative with reckless conduct. Thus, the court found Clay's criminal history
score to be B.

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The district court imposed a controlling sentence of 43 months across all three
cases but also granted Clay's motion for a dispositional departure, ordering an 18-month
probation term.

Clay timely appealed.

ANALYSIS

I. THE DISTRICT COURT DID NOT ERR WHEN IT INCLUDED CLAY'S CRIMINAL
THREAT CONVICTIONS IN HIS CRIMINAL HISTORY AS PERSON FELONIES

Convictions for reckless criminal threat cannot be included as person felonies in
the calculation of a defendant's criminal history score.

Clay challenges the district court's inclusion of his 2011 and 2017 criminal threat
convictions in his criminal history. He argues his sentence is illegal because the district
court misused his prior criminal threat convictions when calculating his criminal history
score, despite the Kansas criminal threat statute having been ruled partially
unconstitutional by the Kansas Supreme Court.

Our review of Clay's sentencing challenge is unlimited because it involves
statutory interpretation and raises an illegal sentence claim. See State v. Daniels, 319
Kan. 340, 342, 554 P.3d 629 (2024). A sentence is illegal if it (1) is imposed by a court
lacking jurisdiction, (2) fails to conform to applicable statutory provisions, or (3) is
ambiguous with respect to the time and way it is to be served. K.S.A. 22-3504(c)(1).
Clay's criminal history challenge is properly before this court because an illegal sentence
may be corrected at any time while the defendant is serving such sentence. K.S.A. 22-
3504(a).

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A sentencing court must include any previous felony and misdemeanor
convictions when calculating a person's criminal history for the purpose of sentencing.
K.S.A. 21-6810(c). But "[p]rior convictions of a crime defined by a statute that has since
been determined unconstitutional by an appellate court shall not be used for criminal
history scoring purposes." K.S.A. 21-6810(d)(9). Stated another way, because the last
clause in K.S.A. 21-5415(a)(1) was declared unconstitutional in Boettger, it cannot be
used in calculating Clay's criminal history score, regardless of whether the same statute
was later found to be constitutional. So any convictions for reckless criminal threat could
not be included as person felonies in the calculation of Clay's criminal history score. See
State v. Smith, 320 Kan. 62, 91, 563 P.3d 697 (2025). The district court's ruling to the
contrary was error. But that does not end our inquiry.

If the State can establish that Clay's criminal threat convictions arose under the
portion of the statute not previously declared unconstitutional, they can be scored
for criminal history purposes.

There is still an avenue for including a defendant's prior criminal threat
convictions if it can be shown that such conviction arose under the portion of the statute
not previously declared unconstitutional—the intentional conduct portion. Smith, 320
Kan. at 91.

Because Clay challenged the inclusion of his prior criminal threat convictions
before sentencing, the State had the burden of proving by a preponderance of the
evidence that Clay's convictions were based on intentional conduct. K.S.A. 21-6814(c).
"[P]reponderance of the evidence" is defined as "'evidence which is of greater weight or
more convincing than the evidence which is offered in opposition to it.'" In re B.D.-Y.,
286 Kan. 686, 691, 187 P.3d 594 (2008). This court reviews a district court's decision
that the State met its burden to prove the classification of a prior conviction for
substantial competent evidence. State v. Corby, 314 Kan. 794, 796, 502 P.3d 111 (2022).

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To meet its burden below, the State relied on copies of the plea hearing transcripts
for Clay's two prior criminal threat convictions, which Clay had submitted in support of
his criminal history challenge, as well as the language of the amended complaints
associated with each of Clay's prior convictions. The amended complaints in both cases
included both the intentional and reckless conduct language found in the statute.

Based on its review of the plea hearing transcripts, the district court concluded
both of Clay's prior criminal threat convictions "clearly" involved intentional conduct
despite being "charged in the alternative." Clay does not directly challenge the district
court's finding that the transcripts and the complaints show intentional conduct, so that
factual finding is unassailable.

Clay cannot challenge an illegal sentence on constitutional grounds.

Instead of contesting the factual finding of intentional conduct, Clay contests the
district court's authority to make that finding. He contends the district court could not
make a factual determination that he was convicted of intentional criminal threat because
such a determination violates the Sixth Amendment to the United States Constitution, as
well as sections 2, 5, and 10 of the Kansas Constitution Bill of Rights. He sums up his
argument in two different portions of his appellate brief.

"To determine whether he engaged in intentional (as opposed to reckless) conduct, the
district court engaged in fact-finding that went well beyond identifying the elements of
the prior convictions. The result is a violation of his federal constitutional rights.

....

"The district court erred by employing judicial fact finding and incorrect
statutory interpretation to include Mr. Clay's prior criminal threat convictions in his

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criminal history score, erroneously raising it from E to B. That error resulted in an
unlawful sentence."

To be clear, Clay concedes in his brief that judicial factfinding regarding the
existence of a prior conviction is permitted under the Sixth Amendment without running
afoul of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). But he contends that
determining whether he engaged in intentional or reckless conduct for his prior criminal
threat convictions exceeded that "limited" exception. Clay asserts the court could not
delve into prior records to determine what he "'actually d[id].'" Erlinger v. United States,
602 U.S. 821, 839-40, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024); see also State v.
Dickey, 301 Kan. 1018, Syl. ¶ 7, 350 P.3d 1054 (2015) (Dickey I) ("The constitutional
protections described in Apprendi . . . are implicated when a district court, for purposes of
enhancing a defendant's sentence for a current conviction, makes findings of fact at
sentencing that go beyond merely finding the existence of a prior conviction or the
statutory elements that made up the prior conviction.").

More importantly, the precise nature of Clay's alleged Sixth Amendment violation
makes it different from the typical criminal history challenge because he is challenging
more than just the classification of his prior convictions. As the Kansas Supreme Court
explained in State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II), "the
proper classification of a prior crime is exclusively a matter of state statutory law,"
meaning a misclassification results in an illegal sentence that can be reviewed for the first
time on appeal. Here, Clay is attempting to challenge the legality of his sentence via a
constitutional claim, which Kansas caselaw has routinely recognized is not permitted
under the statutory definition of illegal sentence. K.S.A. 22-3504(c)(1); State v. Johnson,
317 Kan. 458, 464, 531 P.3d 1208 (2023) (declining to review constitutional challenge to
validity of jury trial waiver on the existence of upward departure factors under illegal
sentence statute); State v. Hayes, 312 Kan. 865, 868, 481 P.3d 1205 (2021) (declining

6
review of illegal sentence claim based on Apprendi because motion for illegal sentence is
not a proper vehicle to raise constitutional issues). The Kansas Court of Appeals is duty
bound to follow Kansas Supreme Court precedent unless there is some indication that the
Supreme Court is departing from its previous position. State v. Patton, 315 Kan. 1, 16,
503 P.3d 1022 (2022). In short, this court can review his statutory challenge to the proper
calculation of his criminal history score, but we cannot consider Clay's newly minted
constitutional claims under the illegal sentence statute.

Clay has failed to preserve his constitutional arguments concerning the district
court's authority to make factual findings related to his criminal threat
convictions.

Appellate courts generally do not address constitutional claims being raised for the
first time on appeal. State v. Holley, 315 Kan. 512, 524, 509 P.3d 542 (2022). Under
Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36), an appellant must include a
"citation to the appropriate standard of appellate review and a pinpoint reference to the
location in the record on appeal where the issue was raised and ruled on" for each issue in
their brief. The Kansas Supreme Court has warned that Rule 6.02(a)(5) will be strictly
enforced, and litigants who fail to comply risk a ruling that the issue is improperly briefed
and will be deemed waived or abandoned. 315 Kan. at 524. Even if a recognized
exception applies, this court is under no obligation to review the new claim or provide a
reason for the denial. State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024).

So even if Clay were relying on something other than an illegal sentence claim, he
has not provided citations to the record where the specific issue of the constitutionality of
the court's action that he raises on appeal was raised and ruled on by the district court.
And if Clay were basing his argument on one of the recognized exceptions that allows us
to consider an issue for the first time on appeal, he must invoke that exception and argue
that it applies. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). An
appellant who fails to do so is deemed to have waived and abandoned any exceptions to

7
the preservation rule. In re N.E., 316 Kan. 391, 408, 516 P.3d 586 (2022). Clay fails to do
so.

The Kansas Supreme Court also recently held that failure to raise "an exception to
the preservation rule in the opening brief . . . cannot be cured in the reply brief." Schutt v.
Foster, 320 Kan. 852, 857, 572 P.3d 770 (2025). That said, Clay did not address the
exceptions to the preservation rule outlined in Godfrey in his reply brief. Instead, he
responded broadly to the State's preservation-related arguments by asserting in his reply
brief that preservation is irrelevant because this court has original jurisdiction to remedy
any wrongs caused by erroneous district court rulings and orders. But preservation and
jurisdiction are distinct legal concepts. See State v. Frye, 294 Kan. 364, 369, 277 P.3d
1091 (2012) ("[T]he very fact that exceptions exist establishes the character of the
preservation rule as being prudential, rather than jurisdictional."). Put another way, this
court is not obligated to consider an unpreserved issue simply because jurisdiction exists.
Such a rule would defeat the purpose of the preservation rule, which helps ensure that
issues are fully developed below to enable appellate review.

In all fairness, a review of Clay's brief shows that he indeed argued in a
memorandum in support of his criminal history challenge that it was not "permissible"
for the district court to make a factual determination about the portion of the criminal
threat statute under which his convictions arose. That argument was based on the holding
from Apprendi that "any fact that increases the penalty for a crime beyond the prescribed
statutory maximum, other than the fact of a prior conviction, must be submitted to a jury
and proved beyond a reasonable doubt." Apprendi, 530 U.S. 466. Yet he fails to direct
this court to a place in the record where the district court ruled on any such Apprendi
claim, and no rulings are immediately apparent from a review of the record. See
Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 81, 274 P.3d 609
(2012) ("Without a ruling from the district court on this issue, we cannot proceed with
formless appellate review."). In other words, without a ruling, there is nothing for this

8
court to review, which is no different than if the issue was never raised at all. Clay's
arguments based on the Kansas Constitution fair even worse because, as the State points
out, he never mentioned them below in any capacity.

In sum, we find no error in the district court's calculation of Clay's criminal history
score.

II. CLAY CANNOT RAISE A CONSTITUTIONAL CLAIM IN A MOTION TO CORRECT AN
ILLEGAL SENTENCE

For the first time on appeal, Clay also challenges the legality of his sentence on
equal protection grounds, arguing the district court violated the so-called "double rule,"
by imposing a total sentence exceeding the statutory maximum. See State v. Redick, 307
Kan. 797, 808, 414 P.3d 1207 (2018).

Kansas statutes impose a cap on the maximum prison term that can be imposed
when a defendant has multiple convictions arising from a single complaint. K.S.A. 21-
6819(b)(4). Applying the double rule to Clay's sentence here would mean the maximum
total sentence he should have received would be 38 months' incarceration. Based on a
ruling by another panel of this court in State v. Dixon, 60 Kan. App. 2d 100, 140-41, 492
P.3d 455 (2021), Clay argues that an equal protection violation occurs when the same
treatment is not applied to a defendant like him with convictions arising out of separate
complaints consolidated for trial, but which could have been filed in a single complaint.
But Clay has failed to preserve this claim for appellate review.

As already outlined in Clay's first issue on appeal, appellate courts generally do
not address constitutional claims being raised for the first time on appeal. Holley, 315
Kan. at 524. But Clay asserts this court can address his newly raised equal protection
claim since an illegal sentence can be corrected at any time. K.S.A. 22-3504. He provides

9
no other basis for the court to hear his unpreserved claim. But Kansas caselaw is clear
that the statutory definition of "illegal sentence" does not allow challenging the legality
of a sentence on constitutional grounds. Hayes, 312 Kan. at 868. The Kansas Court of
Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some
indication that the Supreme Court is departing from its previous position. Patton, 315
Kan. at 16. Thus, Clay is precluded from raising an equal protection claim under the
illegal sentence statute.

If Clay were basing his argument on one of the recognized exceptions that allows
us to consider an issue for the first time on appeal, he must invoke that exception and
argue that it applies. See Godfrey, 301 Kan. at 1043. An appellant who fails to do so is
deemed to have waived and abandoned any exceptions to the preservation rule. In re
N.E., 316 Kan. at 408. Clay does not expressly rely on any of our Supreme Court's
recognized exceptions in his opening brief.

The burden to convince us to hear a new claim rests on Clay, and he does not meet
that burden. Clay's newly raised constitutional challenge to his sentence based on an
application of the double rule is not properly before this court and therefore fails.

Affirmed.

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