State v. PhillipsState v. Phillips
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In this opinion we address the question of whether a district judge may validly ordér a defendant who has been convicted of a felony to pay a docket fee, a booking fee, Board of Indigents’ Defense Services (BIDS) attorney fees, and a BIDS application fee if the judge did not announce the order in open court during the sentencing proceeding. The defendants in this consolidated appeal argue that imposing these fees in a journal entry of judgment without an oral announcement violates
Nevertheless, we agree with the defendants’ alternative argument that due process requires a judge to make the findings necessary to support the allocation and assessment of any cost where the assessment or amount is not mandatory,
i.e.,
where the legislature has granted judges discretion to impose costs or to determine the amount of costs. Because findings were, not
Procedural Background
The question of the validity of the various orders to pay costs was raised in separate petitions seeking this court’s discretionary review of two Court of Appeals opinions: State v. Wenzel, 39 Kan. App. 2d 194, 177 P.3d 994 (2008), and State v. Phillips, No. 96,754, 2007 WL 4571093, unpublished opinion filed December 28,2007. We granted review of questions related to the written taxation of costs, denied review on other questions presented in each appeal, and consolidated the cases for proceedings before this court.
In
Wenzel,
a Court of Appeals panel held that orders to pay BIDS attorney fees and the BIDS application fee may be included in a journal entry of judgment even if not announced from the bench because the assessment of such fees is mandatory under
In State v. Phillips, a different panel of the Court of Appeals similarly found no error in assessing the docket fee, a booking fee, and the BIDS application fee in the journal entry because “court costs and other court-ordered fees are not punitive in nature” and they were not part of Phillips’ criminal sentence for burglary and felony theft. The Court of Appeals affirmed all of the fees imposed against Phillips.
These holdings are consistent with decisions of some other panels of the Court of Appeals. E.g., State v. Loggins, 40 Kan. App. 2d 585, 194 P.3d 31 (2008); State v. Bale, 39 Kan. App. 2d 655, 182 P.3d 1280 (2008); State v. Patterson, No. 99,759, 2009 WL 863111, unpublished opinion filed March 27, 2009; State v. Rose, No. 98,902, 2008 WL 4849440, unpublished opinion filed November 7, 2008; State v. Clark, No. 97,442, 2008 WL 3852162, unpublished opinion filed August 15, 2008; State v. Bench, No. 98,151, 2008 WL 2891073, unpublished opinion filed July 25, 2008; State v. Stevens, No. 97,640,2008 WL 2510176, unpublished opinion filed June 20, 2008; State v. Proctor, No. 97,504,2008 WL 1847637, unpublished opinion filed April 18, 2008; State v. Bradley, No. 94,810, 2007 WL 2239216, unpublished opinion filed August 3, 2007, rev. denied 285 Kan.1175 (2008); State v. Littleton, No. 94,611, 2006 WL 2043104, unpublished opinion filed July 21, 2006, rev. denied 282 Kan. 794 (2006); State v. Harley, No. 93,349, 2005 WL 2665768, unpublished opinion filed October 14, 2005, rev. denied 281 Kan. 1380 (2006).
Other panels have reached the opposite conclusion, however, and have reversed orders to pay fees if the district judge did not pronounce the fees as part of a defendant’s sentence. See, e.g., State v. Whillock, 38 Kan. App. 2d 431, 436, 168 P.3d 56 (2007); State v. Bedell, 36 Kan. App. 2d 870, 878, 146 P.3d 1096 (2006), rev. denied 283 Kan. 932 (2007); State v. Miller, No. 96,025, 2007 WL 2695826, unpublished opinion filed September 14, 2007, rev. denied 285 Kan. 1176 (2008).
We granted the petitions for review in these cases to resolve this conflict in the Court of Appeals’ decisions.
Standards of Review
The issue of whether a district judge must announce an order to pay fees at the sentencing hearing is dictated by statutory requirements and, as a result, requires our interpretation of various statutes relating to
The interpretation of a statute presents a question of law over which appellate courts exercise unlimited review. See Scaife, 286 Kan. at 625. When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutoiy construction. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008). If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. In re Adoption of G.L.V., 286 Kan. at 1041; State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768-69, 69 P.3d 1087 (2003).
Also, our standard of review on the defendants’ due process claim is unlimited. Robinson, 281 Kan. at 540; Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).
Sentence in Open Court
Both defendants base their argument on the requirements of
As the defendants argue,
Relying on these statutes and cases, the defendants argue docket, booking, and BIDS fees are part of the sentence and, therefore, must be announced in open court in order to be valid. This argument, of course, assumes that these fees are part of the sentence. Generally, a “sentence” is “the punishment imposed on a criminal wrongdoer.” Black’s Law Dictionary 1393 (8th ed. 2004). Consistent with this definition, in past cases this court has examined whether fees are imposed as part of the punishment or as a nonpunitive attempt to recoup court costs.
Court Costs
Historically, court costs have been viewed as nonpunitive. This view dates back to the early days of statehood when this court first
After the early cases, few decisions have discussed the issue, but the occasional case has recognized the nonpunitive nature of an order to pay fees. E.g., Robinson, 281 Kan. at 547 (discussing order to pay BIDS attorney fees and stating “the assessment itself is not punitive; it is not a punishment or part of the sentence at all”); State v. Thomson, 188 Kan. 171, 176-78, 360 P.2d 871 (1961) (discussing early cases in upholding order to tax juror fees and mileage as costs); State v. Lopez, 36 Kan. App. 2d 723, 727, 143 P.3d 695 (2006) (stating that “Kansas courts have held that statutes requiring a convicted defendant to pay court costs were not intended to penalize the defendant, but to allocate the expenses incurred in prosecution”); State v. Dean, 12 Kan. App. 2d 321, Syl. ¶ 2, 743 P.2d 98, rev. denied 242 Kan. 904 (1987) (same); State v. Waufle, 9 Kan. App. 2d 68, 79, 673 P.2d 109 (1983) (costs do “not create any liability against defendant for the crime committed”).
Consistent with the recoupment purposes of cost statutes, these cases recognize that an order to pay costs may be treated as a civil judgment.
E.g., State v. Shannon,
194 Kan. 258, 263, 398 P.2d 344
(1965) (rejecting defendant’s complaint regarding judge “taxing the costs of the case against him and permitting execution to issue on the judgment and a levy to be made upon the personal property of the defendant to satisfy the judgment”). Consequently, a defendant who has the ability to pay costs but refuses to pay them as ordered may be required to spend time in jail similar to a civil litigant who fails to abide by a court order to pay a judgment.
The current iteration of the
cost
statute preserves the nonpunitive nature of costs, stating: “If the defendant in a criminal case is convicted, the court costs shall be
taxed
against the defendant and shall be a judgment against the defendant which may be enforced as judgments for the payment of money in
civil cases.”
(Emphasis added.)
Docket and Booking Fees
First, we focus on Phillips’ complaint that the journal entry of judgment required him to pay the docket fee and a booking fee. Wenzel does not make a similar argument.
Docket fees are provided for in
Docket fees are not the only statutorily authorized costs, however. Other statutes impose additional costs, including the booking fee that was assessed against Phillips pursuant to
Hence, both the felony docket fee imposed pursuant to
BIDS Attorney Fees
Next, we consider Wenzel’s complaint that the journal entry of judgment required him to pay BIDS attorney fees when the district judge had not orally announced such attorney fees at the sentencing hearing and when defense counsel had requested a waiver of “BIDS fees.” Phillips does not present arguments pertaining to this issue.
We answered the question of whether an assessment of BIDS attorney fees was punitive in
Robinson,
281 Kan. at 547, and concluded “the assessment itself is not punitive; it is not a punishment or part of the sentence at all.” We reached this conclusion because of the language of
The language of
BIDS Application Fee
Finally, we consider the complaints that both Phillips’ and Wenzel’s journal entries of judgment included an order that the defendants pay the BIDS application fee of $100, as set forth in
The issue of whether this application fee is part of the sentence was answered in Scaife, 286 Kan. at 625, and State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008); see State v. Casady, 40 Kan. App. 2d 335, 191 P.3d 1130 (2008), rev. granted January 22,2009. The rationale of those cases rested on the point in the criminal proceeding when the order to pay the fee is actually imposed, which is long before sentencing, rather than the nonpunitive nature of the fee.
In the earliest of these cases,
Hawkins,
we observed that the logical and practical point to determine whether to assess the application fee and, if so, whether to waive a part or all of the fee is the time the defendant applies for appointed counsel. 285 Kan. at 852. At that point, a defendant is required to file an affidavit as to his or her financial condition, and the district court may interrogate the defendant under oath concerning the affidavit’s contents, may direct the prosecutor or other county officer to investigate the defendant’s financial condition, or may require the production of evidence on the issue of the defendant’s inability
At the defendant’s first appearance in Hawkins, tire district court ordered the defendant to pay the application fee within 30 days. The defendant apparently did not comply with that order, and no action was taken to enforce it before the sentencing hearing. Regardless, as emphasized by the Hawkins court, “an order was in place which Hawkins never attempted to modify” and the district court “was not required to malee any further inquiry.” 285 Kan. at 854. Thus, the Hawkins court upheld the imposition of the $100 application fee.
The Hawkins rationale was reiterated in Scaife, 286 Kan. at 625, where the defendant complained that the journal entry included the BIDS application fee, when the district court had not specifically ordered that fee at the sentencing hearing. Like Phillips and Wenzel in our case, Scaife reminded this court of the rule that a criminal sentence is effective when pronounced from the bench, rather than when the journal entry of sentencing is filed, and that “[a] journal entry which imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.” ’ [Citations omitted.]” Scaife, 286 Kan. at 626.
The district court in Scaife did state that the “costs in this matter are assessed against the defendant,” but Scaife argued this pronouncement was insufficient to be a specific order for the BIDS application fee. After discussing Hawkins, this court reiterated that Scaife “incurred his obligation to pay the application fee when he applied for appointed counsel, long before sentencing.” Scaife, 286 Kan. at 626. In addition, although Scaife had requested that the journal entry be “corrected to delete” the district court’s order for the BIDS application fee, this court stated the journal entry “did not deviate from the court’s pronouncement” with regard to that fee, and therefore it was unnecessary to “correct” the order. Scaife, 286 Kan. at 626.
Thus, although
Hence, we conclude the order to pay is made at the time of appointment of counsel and before sentencing, is nonpunitive, is merely an imposition of costs, and is not part of the sentence. Robinson, 281 Kan. at 547.
Judgment in Open Court
Even if the docket fee, booking fee, BIDS attorney fees, and BIDS application fee are not part of the sentence, we must consider whether the wording of
There is ambiguity relating to whether the legislature intended to refer to “judgment” and “sentence” as separate concepts or whether the reference is to a single concept where judgment and sentence are the same. In
Royse,
252 Kan. at 397, this court stated that “[o]rdinarily, in a legal sense, ‘sentence’ is synonymous with ‘judgment’ and denotes the action of a court of criminal jurisdiction formally declaring to the
“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.”
This statute has been interpreted to apply to the sentencing proceeding. See,
e.g., State v. Valladarez,
288 Kan. 671, 687, 206 P.3d 879 (2009). Nevertheless, a different redding could be given in light
of
We need not resolve this ambiguity, however, because the fees at issue are costs, and
■
Consequently, we find no merit in Phillips’ and Wenzel’s arguments that
Due Process
Even so, Phillips and Wenzel argue due process entitles a criminal defendant to be present when these various fees are imposed.
The Court of Appeals panel in Wenzel rejected this due process argument by finding that a hearing was not required if statutes mandated that a court enter an order. The panel substantiated the point by providing an example of case law relating to the imposition of consecutive and concurrent sentences, stating:
“[W]hen a district judge has the discretion to determine whether sentences will be served concurrently or consecutively, if the judge fails to order consecutive sentences at the sentencing hearing, that cannot be done later by the stroke of a pen on the journal entry. State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 (1997). On the other hand, when a district judge lacks discretion in a sentencing decision, the failure to announce some aspect of the sentence as to which the judge had no discretion may be corrected later. Thus, in Love [v. State, 280 Kan. 553, 560, 124 P.3d 32 (2005)], when the district judge failed to announce that the sentences’ were to beserved consecutively — but a statute clearly required that they must be — the judge could enter a later journal entry correcting the matter. 280 Kan. at 560-63.” Wenzel, 39 Kan. App. 2d at 199.
Other courts have recognized the same distinction. The Florida Court of Appeals, in a case considering the same issue as presented here, explained the rationale for the distinction noting that “technically a defendant is on notice that all applicable mandatory costs will be imposed by virtue of the rendition of judgment and pronouncement of sentence.” Reyes v. State, 655 So. 2d 111, 116 (Fla. App. 1995), superceded by statute as stated in Cook v. State, 896 So. 2d 870, 30 (Fla. App. 2005). Applying this rationale, we will consider whether the various costs in this case required findings by the judge.
Docket and Booking Fees
Historically, court costs have been viewed as mandatory unless there is a clear indication of legislative intent otherwise. See
Thomson, 188
Kan. at 177;
Granville,
26 Kan. 158, Syl. ¶ 1. Consistent with this general rule, the statutes relating to docket fees and booking fees provide those fees “shall” be assessed against the defendant upon conviction.
Consequently, a judge does not need to make findings before taxing as costs a docket fee under
BIDS Attorney Fees
In contrast, the legislature granted judges considerable discretion in determining the amount of BIDS attorney and application fees. Although a cap is set on both fees — an amount determined by the severity of the crime for the attorney fees and $100 for the application fee — the judge is given discretion to waive part or all of the fee.
In
Robinson,
this court determined that the language of
“In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court drat payment of the amount due will impose manifest hardship on the defendant or tire defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.”
Although this provision requires consideration of a defendant’s financial ability, it does not specify when that consideration must occur. In fact, no statute requires the consideration of a defendant’s financial resources to occur at sentencing. Nevertheless, in
Robinson,
we concluded the practical effect of the statutory provisions relating to BIDS attorney fees was that a “sentencing court assess
ing fees to reimburse [BIDS] . . . must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1.
Robinson
further clarified that the sentencing court must explicitly state on the record how those factors have been weighed in the court’s decision. 281 Kan. at 546; see
Nevertheless, because the assessment of BIDS attorney fees is not punitive and not a part of the sentence, the failure to announce the amount of the fee at the sentencing does not mean the fees can never be assessed against a defendant. See Robinson, 281 Kan. at 547. Instead, a remand is appropriate for reconsideration of the payment of BIDS attorney fees. As a result, numerous cases have been remanded to district courts for further findings where the judges at sentencing ordered BIDS attorney fees without consideration of the defendant’s financial resources or the burden the payment would impose. See, e.g., State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008); State v. Stevens, 285 Kan. 307, 172 P.3d 570 (2007).
Here, the attorney fee argument is stated only by Wenzel whose defense counsel asked at the sentencing hearing that BIDS fees be waived. The district judge made no mention of BIDS attorney fees at the hearing, meaning there were no findings on the record concerning Wenzel’s financial resources or the burden the payment will impose. Therefore, the Court of Appeals concluded correctly that the fees should be vacated and the case should be remanded to the district court in order for the district judge to make the necessary findings on the record.
BIDS Application Fee
Similar to the BIDS attorney fee statutes, the BIDS application fee statute,
Both Phillips and Wenzel argue that the judge in their respective cases should have considered at the sentencing hearings whether payment of the $100 application fee would impose a manifest hardship upon them. The defendants’ position was rejected in Hawkins, where this court held a criminal defendant’s ability to pay the BIDS application fee is to be considered by the district court at the time the defendant submits the application for appointed counsel. Hawkins, 285 Kan. at 852. No findings need to be made at sentencing for the BIDS application fee to be a valid judgment.
The record on appeal shows that Phillips’ ability to pay was considered by the district judge at the time his counsel was appointed. This is evidenced on the BIDS form authorized by K.A.R. 105-4-3, which includes the financial affidavit of the defendant on the top part of the form and the court’s order on the bottom. The district judge checked the box ordering payment of the $100 application fee and did not check the box labeled “partially indigent, able to pay $__”
It is not as clear in Wenzel’s case, however, whether his ability to pay was properly considered by the district judge. The record shows that the judge checked a box on Wenzel’s application for appointed counsel when the court approved the appointment of defense counsel, but the judge did not check any box indicating that the BIDS application fee was to be collected. Perhaps this was meant to indicate that the fees were not to be collected due to manifest hardship, but there was no apparent finding of a waiver to that effect on Wenzel’s application.
Wenzel points out that his defense counsel requested at the sentencing hearing that “BIDS fees” be waived. The district judge obviously did not grant this request with respect to either the application fee or attorney fees, since both the BIDS application fee and BIDS attorney fees were assessed in the journal entry of judgment. Yet instead of malting findings and clarifying its earlier order in Wenzel’s application for appointed counsel, the district judge failed to rule on Wenzel’s request for waiver during the sentencing hearing. Because in Wenzel’s case the district judge failed to order
either the payment or waiver (in part or in full) of the application fee at the time defense counsel
It should be emphasized, however, that under normal circumstances, where the district judge has checked the appropriate box on the application for appointed counsel indicating that full payment of the application fee is required, partial payment is required, or payment is waived (or has otherwise indicated its findings on the application), the district judge’s failure to orally announce the BIDS application fee at the sentencing hearing is inconsequential under the rationale of Hawkins. Since the order for the BIDS application fee is to be made at the time the defendant applies for appointed counsel, a subsequent order for the same fee at the sentencing hearing would be redundant. Accordingly, there is generally no need to require the district judge to do so.
The absence of an oral announcement of the BIDS application fee at the sentencing hearing does not, per se, require a reversal of the fee imposed in a defendant’s journal entry of judgment.
We conclude this opinion by urging district judges to announce the imposition of costs at the sentencing hearing. Doing so is a preferred practice. Nevertheless, the failure to do so will not void an order to pay costs.
Those portions of the Court of Appeals decision in Phillips affirming the district court’s imposition of a docket fee, booking fee, and BIDS application fee are affirmed. Those portions of the district court’s decision are affirmed.
Those portions of the Court of Appeals decision in Wenzel vacating the BIDS application fee and BIDS attorney fees and remanding to the district court with instructions to make the appropriate findings and determinations of whether those fees should be waived in light of those findings are affirmed. Those portions of the district court’s decision are vacated, and the case is remanded to the district court with directions.