Prosecutor has burden of proving prior convictions at sentencing

Posted by Matt McLane | Feb 19, 2020 | 0 Comments

Before entering a plea agreement where a prior "conviction" for the same offense (example, prior DUI conviction) is a major obstacle in plea discussions, I always require the prosecutor to submit proof of the prior conviction.  The state has the burden of proving a disputed criminal history and must do so by a preponderance of the evidence.  The proof is generally in the form of a Journal Entry of conviction from the previous case.  Most courts generate a document that formalizes the sentencing arrangement of the defendant.  Kansas courts are clear on the requirements to prove prior "convictions." A certified copy of a journal entry of conviction is the best evidence of prior conviction for purposes of determining criminal history.  When the document is from a Kansas court, certification of the copy suffices to meet the authentication requirements under Kansas law (K.S.A. 60-465(3).  For out of state convictions, the document must be certified or attested to and must identify the state statute that defendant was sentenced under in court.  On occasion I will review a journal entry from a prior conviction that does not clearly and adequately describe the prior conviction.  In some instances there is no "journal entry of conviction" due to the age of the prior conviction.  Some rural courts, for example, did not utilize computer systems for case management until a decade ago.  These courts often used hand-written "journal entries" that were occasionally illegible or did not contain proper signature lines for the defendant.  Some documents didn't identify whether the defendant had a lawyer at the time of sentencing.  The best practice is to always review the documents related to the prior conviction in hopes of finding a small discrepancy that runs afoul of Kansas requirements listed above.  In this instance, the lawyer can argue the prior "conviction" should NOT be considered at sentencing and therefore a reduction of the penalty in the present case is warranted.  I refer to this practice as the "knock-out" game when I can successfully challenge any alleged prior convictions by way of close examination of the documents.

About the Author

Matt McLane

Matt McLane was born in Topeka, Kansas, and moved to Pittsburg, Kansas in 1980 where he attended middle school, high school and college. Upon graduation from PSU in 1992, Matt moved back to Topeka where he attended Washburn University law school. Upon graduation, he moved to Overland Park and worked in a small firm handling DUI and traffic cases. He opened the McLane Law Firm in April 2011 and has built his firm on a strong referral base and solid reputation.


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McLane Law Firm

Matt McLane has been defending individuals charged with DUI, traffic and criminal offenses since his graduation from Washburn University Law School in 1996. Licensed in the states of Kansas and Missouri. Mr. McLane specializes in DUI and criminal defense throughout the Kansas City metropolitan area.

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