When the defendant objects to criminal history, prior PSI no longer sufficient proof

Reid Nelson won in State v. Schow, No. 96,820 (Kan. Dec. 12, 2008), reversing Mr. Schow's sentence and remanding for to the district court for resentencing and reconsideration of his motion to withdraw plea. In reversing the sentence, the KSC held that it was improper for the sentencing court to place the burden on the defense to disprove alleged prior convictions that were listed in a prior, unobjected-to PSI:

[W]e find, as a matter of statutory interpretation, that a defendant may file a written objection to his or her criminal history worksheet, including those convictions which may have been contained in a previous criminal history worksheet, and that such an objection places the burden on the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence. Any suggestion to the contrary in Hobbs is disapproved. Here, the district court erred in shifting the burden to the defendant to disprove the existence of the disputed prior convictions. The sentence is vacated, and the matter remanded to the district court for a proper determination of criminal history and resentencing, if necessary.

Thus, when a defendant objects to the existence of criminal history, the State can no longer rely on a prior, unobjected-to PSI as sufficient existence of a prior conviction. The State has to provide the certified journal entry of conviction.

The KSC also reversed the district court's denial of Schow's motion to withdraw plea. The KSC reiterated that a claim of innocence is not required in a pre-sentencing motion to withdraw plea, and held that a district court may consider a mutual mistake in criminal history in determining whether there is good cause to withdraw a plea. The KSC concluded:

[A] defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant's criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.

Overall, this case helps assure that defendants are sentenced according to an accurate criminal history score and that plea agreements are actually knowing and voluntary.