*1 91,875 No. Timothy II, A. Appellee, Kansas, Robinson,
State Appellant.
(132 934) P.3d filed 2006. Opinion April Minihan, defender, Shawn E. assistant the cause and was appellate on argued the briefs for appellant. Hiebert, cause, assistant Bobby Jr., county attorney, Ellen argued ]. Mitchell, Kline, and Phill county with him attorney, attorney were general, brief for appellee. was delivered opinion This case arises on for review from the Court Beier, J.: Robinson, decision in 2d Appeals’ App. (2005), the district court’s assessment of affirming and administrative fees to reimburse the State Board of attorney (BIDS) Defense Services A. Indigents’ Timothy Robinson, II. (1)
We must consider issues: two Whether such an assessment under K.S.A. 2005 22-4513 is error if a sentencing judge fails to sua consider at the time of assessment a explicitly sponte and die financial burden would (2) and whether such an assessment violates a defendant’s impose, fails to consider the if die
due judge rights process *2 of die fees at the time assessment. validity and convicted of Robinson was felony marijuana possession A defender misdemeanor public drug paraphernalia. possession his was sentenced had to act as counsel. Robinson been appointed 90 and to 17 months’ incarceration possession days drug 12 and on months’ probation. placed paraphernalia restitution; was to $400 also ordered
Robinson approxi- pay fee; costs; $845 a and other $50 in court $150 mately probation fees, $50 fees and a $745 a assessment for included attorney He was to BIDS administrative fee. malting begin $203.46, to make these and his failure pay- monthly payments not at violations of ments is several probation alleged among here. issue fees assess- $745
On
attorney
appeal,
challenges
administrative
He
ment and
fee.
$50
argues
22-4513
to
violated K.S.A. 2005
fading
explicitiy
judge
by
to
and the financial burden
consider Robinson’s
pay-
time of the assessment. He also
ment would
argues
because the
were
in violation of due
assessed
process
judge
did
of die fees. Robinson
not
also did not consider die validity
he
to the fees at
and
has
sentencing,
petitioned
object
time.
the fees at
other
court waive
Standards Review
is un-
of review of Robinson’s
Our standard
statutory challenge
limited,
of law.
of statutes raises
because
question
interpretation
(2003).
Maass,
328, 330, 64
382
v.
275 Kan.
P.3d
See State
statute,
we
called
To the extent
are
interpret
upon
as ex-
effect to the intent
first
attempt
give
scheme it enacted.
the statutory
pressed through
the court must
When a statute is
give
plain
unambiguous,
what
law
rather than determine
effect
express language,
when statute
not be. Stated another
should
should
way,
plain
as to the
will not
courts
speculate
unambiguous,
appellate
a statute so
it and will not read such
intent behind
legislative
Post, 279
found in the statute.
add
not readily
something
664, 666,
(2005);
Cerda,
Kan.
Our standard of review on Robinson’s due
claim
also
process
Nelson,
589, 594,
unlimited. See
921 P.2d
Murphy
Claim
Statutory
provides
pertinent part:
“(a)
convicted,
If the defendant is
all
made
the state
board
expenditures
*3
defense services to
counsel and other defense services
indigents’
to such
provide
or
defendant
the amount allowed
the board of
defense
reimburse-
indigents’
thereto,
ment tables as
IC.S.A.
amendments
whichever
provided
less,
is
shall
taxed
the defendant and shall be enforced
as judgments
for
civil
of
cases.
payment money
“(b)
sum,
In
the amount and method of
such
the
determining
court
payment
shall take account of the financial resources of the defendant and the
nature
the burden that
of such sum will
A
payment
defendant who has been
impose.
such sum and who is not
default in the
willfully
thereof
payment
time
the
may
petition
court
sentenced the defendant to waive pay-
ment
such
sum or of
thereof.
If
to the
unpaid portion
satisfaction
appears
of the court that
of the amount due will
manifest
payment
on
hardship
defendant’s immediate
the court
waive
family,
may
payment
of all or
of the amount due
method of
modify
payment.”
Various
of our Court of
have
panels
Appeals
split
statutory
raises, i.e.,
issue Robinson
whether K.S.A. 2005
22-4513 re-
court to consider the defendant’s financial cir-
quires
cumstances
See,
at the time BIDS
are
assessed.
State v.
e.g.,
526, 532-34,
34 Kan.
(2005) (de-
2d
Moody,
App.
fendant’s financial resources need not be considered at time of
assessment);
Ellis,
91,037,
No.
filed
unpublished opinion
4, 2004, rev.
(2004) (consideration
denied
Likewise, that took s case was divided. panel up D. Hill denied relief. con- Tom Malone and They Stephen Judges a defense in K.S.A. 2005 for sidered provision court to waive BIDS fees an adequate petition that for a ruled Robinson’s ap- rights. They protection his failure to at sen- on issue was given object peal premature, 33 Kan. 2d at 784. or otherwise waiver. App. tencing petition dissented, the waiver Richard Greene Judge saying provision 22-4513(b): “In could mandatory negate plain, ., . . the court method shall take account the financial resources of sum the nature of that of such the burden impose.” added.) 33 Kan. at 784-86 See 2d J., (Emphasis App. (Greene, dissenting). is
The State first Robinson’s appeal argues premature. view, its because the statute allows Robinson specifically fees, at the court waiver of the he still has a district remedy that he that Robinson level has not We pursued. acknowledge However, district relief. could have court for petitioned It does of an not rule out permissive. possibility procedure case, not, We also in this the absence do particular regard appeal. As the district as fatal. we have often of an before objection stated, raise an issue on failure to reach appeal despite when asserted involves it below the newly theory only question on or admitted facts and determi- of law finally arising proved Schroeder, 104, 116, See State native of the case. *4 addition, (2005). that has in the In the conflict arisen P.3d us to the liti- of settle to Court Appeals compels question guide counsel, their and the district courts. gants, that a his For Robinson by asserting part, opens arguments court must sua a defendant’s to consider sponte fees, statute for BIDS because the pay governing 22-4513, to with similar is other legislation analogous requirements. to K.S.A. 2005 the BIDS statute
Robinson first compares defendants certain assessments authorizes convicted of crimes committed to 1993. Subsection prior July (b) that of statute states: “In addition to of the above the court shall order the de- any [dispositions], to fendant reimburse the state fund for all or of the general part expenditures by the state board of services .... In the amount and indigents’ determining sum, method of of such the shall court take account of the financial payment resources of the defendant and the nature of the burden of such payment sum will A defendant who has been to such sum and impose. who required pay is default the at thereof time the court willfully may payment any petition
which sentenced the waive of such sum or any payment unpaid thereof. If it satisfaction of the court portion appears payment amount due will manifest on the defendant or the impose hardship immediate the court waive of all may or of the amount due family, payment part or the method of modify payment.”
Robinson also calls our attention 21- 4610(d)(3). That statute states: “(d) In addition other conditions of of sentence probation, suspension to a correctional services assignment community court shall order program, . .:
the defendant to . (3) reimburse state fund for all or a general part expenditures by state board of defense services to counsel and indigents’ other defense provide services to the defendant. the amount and method of payment sum, such the court shall take account of the financial resources and the nature of the burden that such sum A defendant payment impose. who has been such sum and who is not in default in the required willfully thereof time the court payment may which sentenced the defend- ant to waive of such sum of thereof. If it payment any unpaid portion appears to tire satisfaction court that amount due will man- ifest on the defendant or the defendant’s immediate hardship family, waive of all or of the amount due or the method of modify payment.”
Given the in these two Rob- similarity provisions, inson correct that case law them could interpreting very help- ful. there nois such case law. Unfortunately, also at issue here attempts compare fines, and criminal that a to make arguing judge specific fine, McGlothlin, before forth as set in State v. findings imposing 747 P.2d 1335
543
that,
a defendant is convicted of a
held
when
McGlothlin
felony
a
and is sentenced
a misdemeanor
given
imprisonment
fine,
must
rec-
make
state on
must
judge
specific findings
he
has
into account the financial resources
ord that
or she
taken
the burden that
the defendant and
nature of
This
was
lan-
will
is without merit. The BIDS fees here or, indeed, are not fines punitive; they punish- for the criminal conduct. Their au- ment or sanction K.S.A. 2005 is more accurately thorizing provision, statute. characterized as recoupment and earlier statutes have controversial Recoupment histoiy, have court. versions the Kansas been examined this provision Keener, See, Kan. P.2d e.g., Syl ¶ (1978). We that clues our need not revisit history guide statute, however, that of the current unless we determine reading intent be divined from the clear and un- cannot legislature’s Sodders, 22-4513. of K.S.A. 2005 See wording ambiguous if the 4. if there is no Only Syl. plain meaning, ¶ facts, its is on face or as must statute applied ambiguous look the text of the enactment itself. beyond 22-4513(b)
The 2005 Supp. clearly requires language “in and method of the amount sentencing judge, reimbursement, i.e., at the time the reimburse- payment” ordered, “take ment is account of financial resources such sum defendant and the nature of the burden that un- stated mandatory; impose.” occur, this “shall” in the same that it stated way equivocally the de- that the BIDS fees “shall” be taxed against unequivocally 22-4513(a), (b). The lan- fendant. Compare that the no conditional. There is no indication way guage first that the consider defendant must request ob- defendant must first or her financial circumstances or *6 BIDS fees to draw the court’s ject proposed those attention to circumstances. addition,
In and in further to the State’sfirst response argument on this the fact that the statute also a defendant to appeal, permits waiver for does not or petition change mandatory language mean the waiver is intended as a for substitute the sen- procedure court’s initial consideration of defendant’s finances. tencing On the the statute’s first two set subsections out four contrary, distinct —but and (1) logically temporally provisions: related — reimbursed, bemust and fees to such enable reimbursement must be assessed convicted defendants and enforced as civil (2) the court shall consider judgments; financial circumstances in method setting (3) fees; assessed, of the once the fees are defendant may petition fees; (4) for of all waiver if such filed, the court will determine whether “manifest payment imposes and, on the so, defendant and her his or if hardship” family waive or amount method modify payment. our reliance on tire clear and
Although unambiguous wording statute issue means we need discuss or depend upon we note that the of this statute also legislative history, history sup- our decision. ports 1971, Delmas C. Hill of the federal District of Kansas Judge
held, 1230, v. (1971), F. that an Strange James, earlier version of K.S.A. 22-4513 was unconstitutional. Hill Judge opined: “We must conclude that Section 22-4513 is and therefore exces- unnecessary sive. What can be more tiran costs counsel unnecessary trying from recoup an individual to be an already definition unable to adjudged stand indigent In this it is very tire statute expense question? light apparent needlessly to do without counsel and encourages indigents consequently infringes 335, as to counsel in Gideon v. right explicated U.S. 9 L. Ed. Wainwright[, 799, (1963)].” 2d Ct. 792 83 S.
That case
reached the
Court of the United
eventually
Supreme
States,
result,
which affirmed
Hill’s
but on different
Judge
grounds.
128,
600,
407 U.S.
32 L. Ed. 2d
S.
92 Ct. 2027
Strange,
James
(1972). Court held that there was no denial of Supreme
sense,
both
the statute
because
in the strictest
counsel
right
that counsel
with
public
counsel
paid
indigent
provided
Nevertheless,
violated
the statute
at 134.
407 U.S.
equal
funds.
in-
on an
said,
because
the Court
liability
imposed
protection,
coun-
made to
state
provide
expenditures
digent
other civil
available to
without
sel
exemptions
protective
135, 140-42.
407 U.S. at
debtors.
judgment
amended the
Court
After the
ruling,
Supreme
under the re-
to debts
civil
that all
statute so
exemptions applied
3.
ch.
sec.
L.
statute.
coupment
Circuit
and the Tenth
The statute was
again
challenged
under
deficient
struck it down
Court
constitutionally
Appeals
*7
in Fuller
Court’s decision
the United States
Oregon,
Supreme
(1974). Olson v.
642,
94 S. Ct.
40 L. Ed. 2d
417 U.S.
1979).
(10th Cir.
After the Tenth our amended the Kansas statute to its cur- again, essentially rent form. See L. ch. sec. 2. The and substance timing of this amendment to make the Kansas identical provision nearly about the intention behind the provision Oregon revealing chosen and that intention is borne out legislature’s language, the statute interpretation give today. it, As we see our 22- interpretation three, 4513 necessitates discussion of further points.
First,
court,
assessment,
at the
time
initial
must
*8
consider the financial resources of the defendant and the nature
of the burden that
impose explicitly, stating
record how those factors have been
in the court’s decision.
weighed
Without
record on these
adequate
points, meaningful appellate
review of whether
the court abused its discretion in
the
setting
amount and method of
the
fees would be
impossible.
Moncla,
See State
61, 65,
(2000)
Second, a
court’s
failure
include such
con-
sentencing
explicit
sideration of the defendant’s financial
circumstances
the record
does not render tire sentence associated with the
assess-
resulting
22-3504. As we have
that term is used K.S.A.
ment
“illegal,”
it is
said,
is not
not a
the assessment itself
already
punitive;
pun
a
at all. Its
to sentence
or
of the sentence
connection
ishment
narrow
to one
definition
does not convert that sentence
fitting
i.e.,
a
without
a sentence
jurisdiction;
by
“illegal,”
imposed
either
a sentence that does
conform
statutory provision,
authorized;
a
or
in the character or
term of
punishment
the time
means
sentence that is
with
ambiguous
respect
Kan.
is to be served. See
Syl.
Gayden,
(2006).
Third, of tire made are sensitive certain points finally, Luckert, in her We our concurrence. recog- by colleague, Justice (a) that states that nize subsection and that taxation of “all shall occur neither by expenditures” (b) (a) subsection nor subsection states consideration explicitly a financial must occur “at How- resources sentencing.” ever, their effect. the subsections this is practical reading together, occur, and is the The consideration must proceeding addresses BIDS reimbursement. routinely Due Process Claim were that his due violated Robinson also rights argues process fees. court’s failure to consider the validity fees, he of the Without evidence of validity argues, contest did not have an imposed. opportunity claim, this court must a due process reviewing procedural in interest is determine whether a protected liberty property and, so, due. if the nature and extent of the Winston volved process 396, 409, Kan. v. Kansas of S.R.S., Dept. if a claimant is
A due
violation can be established only
process
a
he or
was denied
able to show that
she
specific procedural pro-
he or she was entitled. The
tection which
question
pro-
cedural
must
protection
accompany deprivation
partic-
test,
ular
interest
resolved by
liberty
balancing
property right
stake;
the risk of erroneous
the individual interest
dep-
weighing
used and the
rivation of
interest
procedures
prob-
through
value,
able
if
of additional or substitute procedural safeguards;
any,
*9
used,
and the State’s interest in the
the fiscal
procedures
including
and administrative burdens that
additional
substitute procedures
would
entail. Mathews v.
424 U.S.
47 L. Ed.
Eldridge,
2d
The basic elements of
due
notice
are
and an
procedural
process
to be
at a
heard
time and in a
opportunity
meaningful
meaningful
Winston,
manner.
Robinson received both notice an and to be heard. opportunity The fees assessed follow detailed standard cost schedule prom- BIDS, record, which is a matter of and which is ulgated by public reviewed at assessment to K.S.A. presiding judge pursuant Robinson, counsel, 22-4507. counsel, his and opposing the court had access to this fee schedule were on notice of the amount of fees be Had Robinson desired to likely imposed. the amount or of those fees at he and challenge validity sentencing, had counsel to do so. did take that opportunity They above, the factors forth set we conclude opportunity. Balancing that Robinson received all the he was due on this issue. process review,
On the assessment issue to our the dis- subject grant trict reversed, court and tire Court are and the case is Appeals remanded for further consistent with this proceedings opinion.
Reversed remanded with directions. I with the conclu- J., concurring: disagree Luckert, majority’s sion that a court must consider the defendant’s financial sentencing resources at time of assessing pursuant conclusion, view, 22-4513. This my contrary plain subsection unambiguous language provision, specifically (a). hold, however, I would that the court is to take the financial resources into account the time method of of that sum (b) and, under subsection because court did not do case, so in this I that remand is agree appropriate. has instructed that we should read words “ac- context and the of the statute.”
cording approved language words, Second. In other “[ojrdinary GT, Kansas, words are their L.L.C. given ordinary meaning.” *10 Deeds, 311, 316, 271 Kan. v. Riley County Register of and directed “words (2001). The has further a that have meaning acquired peculiar appropriate phrases law, to their shall be construed according peculiar appropriate v. Via 77-201, Second; see Rose 2005 K.S.A. Supp. meaning.” Inc., 527, 523, P.3d 241 Health 279 Kan. 113 Christi System, that the (2005). under These rules are applied presumption enacted; it intent its through legislature expressed a of the statute. intent court’s governs interpretation legislative Revenue, 106 Pieren-Abbott v. Kansas Dept. of P.3d 492 22-4513(a) in relevant that the 2005
K.S.A.
Supp.
provides
(BIDS)
Defense Services
fees “shall be
State Board of Indigents’
as
and shall be enforced
taxed
judgments
against
as
a
cases.” “Shall” is defined
civil
“[h]as duty
money
(8th
to;
1407
to.” Black’s Law
more
Dictionary
broadly,
2004).
mean
as
also been defined to
ed.
While
has
directory,
to matters of mere
the former is related
mandatory,
opposed
See Wilcoxv.
Kan.
form,
as
not substance
here.
Billings,
(1968) (whether a statute is
or man-
657
K.S.A. specifies Supp. criminal, Thus, civil, forced as judgment. opposed established to utilize enforcement has procedures by under K.S.A. 2005 law. One such enforcement provided procedure 22-4513(c) 22-4504(c) allows the State recover has transferred to whom a defendant fees from third prop- parties Under these consideration. “[a] without provisions, adequate erty determination the court that the defendant is unable financially counsel or other costs defendant’s defense employ from the defendant but may preclude recoveiy may preclude from to whom the defendant have trans- recovery person ferred or without con- conveyed any property adequate monetary sideration after the date tire commission crime.” alleged 22-4504(c); See 22-4513. also K.S.A. 22-4510 to reimbursement of BIDS (relating attorney the court finds that funds are available “[w]henever providing from or on the court shall direct defendant, behalf of *11 that such funds be to the court for in the state paid deposit treasury to the added.]). credit of the state fund.” general [Emphasis to the tire of K.S.A.'2005
Contrary majority’s holding, provisions 22-45l3(a) do that the Supp. requirement court take into consideration the defendant’s when ability pay Rather, die fees. under the of the assessing plain language provi- sion, (a) the court is to assess either the amount actual expend- itures for (b) counsel and other defense services the providing tables, allowed the BIDS’ defense reimbursement by whichever is less. Statutes of counsel relating appointment and the the court the ob- payment attorney impose upon to examine (1) two other in time: ligation ability pay points (2) when counsel is the when court appointed requires any of the fees. payment
K.S.A. 2005 the first Supp. imposes requirement —that be made into a defendant’s financial resources at the time inquiry counsel That statute that when a defendant appointed. provides counsel, claims to be unable to “the court shall financially employ that the defendant file an affidavit” in the form require required BIDS. See K.A.R. 105-4-3. That regulations by promulgated affidavit with court the information to make presents necessary the determination of whether the defendant able to financially counsel. The statute the considerations for this employ specifies decision: “In such determination the shall making court consider the defendant’s assets and
income; the amount needed for the of reasonable and necessary expenses incurred, or which must be incurred to defendant and the defendant’s support of effective cost representation by employed immediate family; anticipated counsel; tire have been transferred or conveyed by property consideration after the com- without defendant to any person adequate monetary If and income are not suffi- crime. the defendant’s assets mission of alleged counsel cost of effective cient to cover representation by employed anticipated are taken of the fully when the proceedings length complexity anticipated account, and the shall determined full or into indigent in K.S.A. and amendments court as attorney shall provided appoint 22-4504(b). K.S.A. 2005 thereto.” Supp. when an The second circumstance inquiry made is whenever the court must be requires pay- 22- K.S.A. 2005 ment defendant. For example, Supp. by 4513(b) the amount method of “In requires: pay- 22-4513(a)], ment of such sum under K.S.A. [imposed Supp. de- the court shall take account of the financial resources such fendant and nature the burden that sum 21-4603d(d) See also K.S.A. (requiring impose.” defendant to reimburse for defense incurred county expenses by unless finds manifest K.S.A. 2005 court county hardship); 21-4610(d)(3) reimbursement as condition of (requiring probation manifest unless court finds hardship). case, this required
make as condition of monthly probation, payments 21-4610(d)(3), but did not make findings *12 22-4513(b). Thus, K.S.A. 2005 I with the required by agree re- that this matter must be remanded for the majority findings However, 22-4513(b). quired by legislature has between the taxation of fees and order distinguished the fees. The distinction another case significant this blur a which the has court should not distinction made.