Appellate Discretion to Decline Review of Unpreserved Claims Even When an Exception Could Apply

1. Introduction

State v. Smith arises from resentencing proceedings following the Kansas Supreme Court’s 2025 decision affirming Robert Edward Smith’s convictions for crimes stemming from a 2016 home invasion and the murder of Donna O’Neal, but vacating his sentence because a prior conviction (a 2003 criminal-threat conviction) had been improperly counted in his criminal history score. On remand, the district court recalculated Smith’s criminal history from category A to B and imposed a revised sentence.

In this second appeal, Smith advanced (for the first time) a constitutional attack on the Kansas Sentencing Guidelines Act (KSGA), arguing that judicial determination of prior convictions used to increase punishment violates the federal Sixth Amendment and section 5 of the Kansas Constitution Bill of Rights. Separately, he sought correction of jail-credit time between the original sentence and resentencing.

The key legal issue resolved by the 2026 opinion is not the merits of Smith’s constitutional theories but the court’s treatment of unpreserved claims: the court emphasized that even when exceptions might permit review of a new issue on appeal, appellate review remains prudential and discretionary, and courts have no obligation to reach such claims—particularly where settled precedent forecloses relief.

2. Summary of the Opinion

The court affirmed the resentencing. It declined to address Smith’s newly raised constitutional challenges because they were unpreserved and, in any event, controlling federal and Kansas precedent already rejected the underlying theories.

On the jail-credit issue, the court held the claim was moot because the district court had already issued a nunc pro tunc journal entry (January 26, 2026) awarding the additional 627 days.

3. Analysis

3.1. Precedents Cited

The opinion relies on and organizes existing doctrine in two major domains: (a) Kansas preservation rules and the discretionary use of exceptions; and (b) the “prior conviction” rule under federal and Kansas constitutional jury-trial protections.

A. Preservation doctrine and discretionary exceptions

• State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018): Cited for the general rule that constitutional grounds for reversal raised for the first time on appeal are not properly before the appellate court. This establishes the baseline “no review” posture absent preservation.
• State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019): Cited for the proposition that there are “limited exceptions” to the rule against considering new issues on appeal. Smith invoked exceptions, but the court stressed that their existence does not compel review.
• State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020): Crucial support for the court’s core move: even when an exception could apply, deciding to consider an unpreserved issue is “prudential.” The 2026 syllabus crystallizes and elevates this idea into an explicit, front-facing rule.

B. Federal Sixth Amendment doctrine and the “prior-conviction exception”

• Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000): Cited for the general rule that facts increasing punishment beyond the statutory maximum must be found by a jury beyond a reasonable doubt—while recognizing the carveout for prior convictions.
• Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998): The source of the “prior conviction exception,” holding the Sixth Amendment does not require jury findings on the fact of a prior conviction used to enhance a sentence. The Kansas Supreme Court treated it as controlling and binding.
• State v. Ivory, 273 Kan. 44, 44, 41 P.3d 781 (2002): Kansas’ direct adoption of the federal rule in the KSGA context: KSGA criminal-history scoring does not violate the Sixth Amendment. The Smith court cited Ivory as settled Kansas authority foreclosing relief.
• Erlinger v. United States, 602 U.S. 821, 837-38, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024): Smith cited Erlinger to argue the prior-conviction exception has been questioned in separate opinions. The court acknowledged that debate but emphasized that Erlinger did not overrule Almendarez-Torres and thus did not change the governing rule.

C. Kansas Constitution section 5 jury-trial doctrine for criminal history

• State v. Albano, 313 Kan. 638, 640-41, 487 P.3d 750 (2021): The controlling Kansas constitutional precedent. It held that section 5 preserves the jury right as it existed at common law in 1859 and that historically in Kansas the court (not the jury) determined punishment-related matters, including criminal history. The Smith court treated Albano as squarely dispositive of Smith’s section 5 claim.

D. The remand backdrop: criminal-history exclusion and sentencing recalculation

• State v. Smith, 320 Kan. 62, 91, 563 P.3d 697 (2025): The earlier appeal that vacated Smith’s sentence and directed the district court not to include the 2003 criminal-threat conviction. The 2026 opinion uses this only as procedural context, but it explains why the resentencing occurred and why the criminal-history score changed from A to B.
• State v. Boettger, 310 Kan. 800, 822, 450 P.3d 805 (2019): The constitutional decision underlying the exclusion of reckless criminal-threat convictions. It matters because the 2025 decision relied on Boettger and K.S.A. 21-6810(d)(9) to prohibit counting certain prior convictions later deemed unconstitutional. While not the focus in 2026, it illustrates the court’s strict approach to criminal-history legality—contrasting with Smith’s new attempt to constitutionalize criminal-history factfinding generally.

3.2. Legal Reasoning

A. The court’s controlling move: discretion not to review unpreserved issues

Smith’s constitutional theories were not raised at resentencing. That triggered the preservation rule from State v. Daniel. Although Smith invoked exceptions (referenced via State v. Johnson), the court emphasized—relying on State v. Gray—that exceptions are not mandates. The decision is “prudential.”

The prudential rationale is explicit: the court declined review because “the governing law is already well settled and forecloses relief.” In other words, the court coupled (1) nonpreservation with (2) futility under binding precedent to justify refusing to reach the merits.

B. Why the merits were “foreclosed” (even if reviewed)

The court nevertheless explained why Smith could not win on the substance:

• Federal Sixth Amendment: Smith’s challenge runs into Almendarez-Torres and Kansas’ application in State v. Ivory. Even acknowledging debate noted in Erlinger v. United States, Kansas courts must apply controlling U.S. Supreme Court precedent unless and until it is overruled.
• Kansas Constitution section 5: Smith’s argument is directly rejected by State v. Albano, which held section 5 does not require a jury to determine sentence-enhancing prior convictions under the revised KSGA. Smith’s attempt to weaken stare decisis for “structural” constitutional claims failed because he offered no new historical authority undermining Albano’s 1859 common-law analysis.

C. Mootness and the nunc pro tunc cure for jail credit

Smith’s second issue sought correction of a missing 627 days of jail credit. The State supplemented the record showing the district court had already filed a nunc pro tunc journal entry adding the 627 days. Because the requested relief had already been granted, the appellate court held the issue was moot and refused to order an unnecessary remand.

3.3. Impact

A. Preservation doctrine: a sharpened appellate gatekeeping principle

The opinion’s most consequential contribution is its syllabus-level clarity: Kansas appellate courts are not obliged to review unpreserved claims merely because an exception could arguably fit. This framing strengthens appellate gatekeeping in at least three ways:

• Reduces “exception as entitlement” arguments: Litigants frequently argue that once an exception is invoked, review should follow. Smith rejects that inference and positions exceptions as permissive.
• Encourages trial-level development: By making review discretionary, the opinion incentivizes litigants to raise constitutional and sentencing-structure claims at sentencing/resentencing where a record can be made.
• Promotes judicial economy where precedent is settled: The court signaled it may decline review when the law “forecloses relief,” avoiding advisory analysis of arguments raised solely to preserve issues for later federal review.

B. Sentencing litigation: constitutional challenges to criminal-history factfinding remain closed in Kansas

Substantively, the decision underscores that the two principal avenues for challenging judge-found prior convictions are currently blocked: Almendarez-Torres/Ivory for federal Sixth Amendment claims and Albano for Kansas section 5 claims. Unless the U.S. Supreme Court revisits Almendarez-Torres or the Kansas Supreme Court revisits Albano with new historical evidence, defendants should expect these arguments to fail—often without merits review if not preserved.

C. Remand practice: clerical corrections and mootness

The jail-credit holding illustrates a practical appellate point: when the district court corrects a clerical sentencing error via a nunc pro tunc entry during the appeal, the appellate court will treat the request as moot and will not order redundant proceedings.

4. Complex Concepts Simplified

• Unpreserved claim: An argument not raised in the district court. Appellate courts generally require issues to be raised below so the trial judge can address them and a proper record can be developed.
• Exception to preservation: A limited circumstance where an appellate court may consider a new issue anyway. In Kansas, such exceptions exist, but after State v. Smith (2026) they are clearly discretionary, not mandatory.
• Prudential decision: A choice based on judicial restraint and practical considerations (fairness, record adequacy, efficiency), rather than a strict jurisdictional command.
• KSGA / criminal history score (A vs. B): The Kansas Sentencing Guidelines Act uses a grid system where criminal history categories (often A being more serious than B) affect the sentencing range.
• “Prior conviction exception” (federal): Under Almendarez-Torres, the fact of a prior conviction can be used to increase a sentence without being proved to a jury beyond a reasonable doubt, notwithstanding Apprendi’s general jury-factfinding rule.
• Section 5 of the Kansas Constitution Bill of Rights: Protects the right to jury trial as it existed in 1859. Under Albano, that right does not extend to having a jury determine criminal history for KSGA sentencing.
• Nunc pro tunc: A court entry made “now for then” to correct the record so it reflects what should have been entered previously (typically clerical mistakes), such as omitted jail credit.
• Mootness: A dispute is moot when the court can no longer provide meaningful relief—here, because the jail credit had already been corrected.

5. Conclusion

State v. Smith (Kan. 2026) affirms resentencing and, more importantly, crystallizes a procedural rule with broad appellate significance: even where an exception might allow review of an unpreserved claim, Kansas appellate courts have no obligation to take it up. The court’s refusal to reach Smith’s newly raised constitutional challenges was reinforced by the reality that controlling precedent— State v. Ivory, Almendarez-Torres v. United States, and State v. Albano—already foreclosed relief.

The decision thus functions as both a preservation warning and a doctrinal stabilizer: constitutional attacks on KSGA criminal-history factfinding remain settled against defendants in Kansas, and litigants cannot assume appellate exceptions will be deployed to revisit questions already answered by binding authority.