Opinion
No. 107,067.
2012-06-29
STATE of Kansas, Appellee, v. Grady BARKSDALE, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellant. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Grady Barksdale pled guilty to a misdemeanor charge of endangering a child. At sentencing, the trial court ordered Barksdale to pay attorney fees. Barksdale appeals the assessment of the attorney fees on two grounds: (1) that the trial court failed to consider his financial resources when it imposed the attorney fees; and (2) that the trial court lacked jurisdiction to increase the amount of attorney fees after sentencing. We agree. Thus, we vacate the attorney fees and remand this case to the trial court with directions to consider Barksdale's financial resources and the burden of paying the Board of Indigent Defense Services (BIDS) attorney fees.
On October 8, 2010, Barksdale was originally charged with aggravated indecent liberties of a child, which is an off-grid felony. Barksdale's case went to trial on February 7, 2011, but before the trial was completed, Barksdale pled to a misdemeanor charge of endangering a child. The trial court accepted the plea, and a presentence investigation (PSI) report was done. The PSI report requested attorney fees in the amount of $350, which is what is normally charged for a misdemeanor. At sentencing, the judge ordered Barksdale to pay attorney fees but did not specify the amount of the fees on the record. The original journal entry stated that the attorney fees were $350. The journal entry was later amended but the amended journal entry did not mention attorney fees. At some point, Barksdale was ordered to pay $8,500 in attorney fees.
After Barksdale completed his probation and paid the fees he thought he was ordered to pay, he moved to terminate probation. In his motion, Barksdale contested the attorney fee amount. The trial court held a hearing on November 2, 2011, where Barksdale argued that the attorney fees should only have been $350, not the $8,500 that were later assessed to him. In a memorandum opinion, the trial court held that Barksdale was ordered to pay $8,500 in attorney fees. In reaching that conclusion, the trial court held that the journal entry of March 14, 2011, was incorrect because it did not reflect the trial court's order and because it incorrectly applied a misdemeanor cost instead of a felony cost for attorney fees. The trial court relied on K.S.A. 22–3504(2) as a basis to correct clerical mistakes in journal entries.
Barksdale appeals the trial court's order imposing attorney fees. Did the Trial Court Fail to Take into Consideration Barksdale's Financial Resources When It Imposed Attorney Fees?
First, Barksdale argues that the trial court erred by ordering him to reimburse BIDS attorney fees without first considering his financial resources and the burden such payment would impose as required by K.S.A. 22–4513(b). See State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). The State concedes that the trial court failed to make the necessary inquiries into Barksdale's financial resources.
K.S.A. 22–4513(b) states: “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.”
In Robinson, our Supreme Court held that the sentencing court's failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment would impose was reversible error. 281 Kan. at 544. In reaching that conclusion, the Robinson court interpreted K.S.A.2005 Supp. 22–4513(b) and found the language to be mandatory. 281 Kan. at 543. The court further stated that the statute clearly requires a sentencing judge to take into account the defendant's financial resources when the reimbursement is ordered. 281 Kan. at 543. The trial court is also required to state on the record how the factors were weighed in the court's decision. 281 Kan. at 546.
In this case, the trial court did not ask Barksdale if he was presently working, inquire about the wages he anticipated making, or ask if he had any other financial burdens which would affect his ability to pay attorney fees. At Barksdale's sentencing, the trial court merely stated the following, “You are ordered to pay the court costs, the attorney's fees, the probation fee, and complete all those requirements, including the sex offender evaluation and comply with recommendations.”
Barksdale argues that the trial court did not err in failing to inquire into his financial resources when it assessed $350 for attorney fees because that is what he agreed to in his plea agreement. Barksdale, however, does argue that the trial court failed to make the necessary Robinson inquiries when it later assessed $8,500 for attorney fees.
In making this argument, Barksdale is essentially arguing that he effectively contracted away his rights under K.S.A. 22–4513(b) in his plea agreement. In State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010), our Supreme Court addressed a similar issue. In Copes, the State argued that the defendant had contracted away her rights under K.S.A. 22–4513(b) in her plea agreement. The Copes court determined that a defendant can waive rights in a plea agreement and that the waiver may extend to the statutory rights under K.S.A. 22–4513(b). 290 Kan. at 217. The Copes court further held that so long as there is a knowing, voluntary, and intelligent waiver, the trial court may order payment of BIDS attorney fees without making the findings required by K.S.A. 22–4513(b) and Robinson. 290 Kan. at 217.
In Copes, our Supreme Court ultimately determined that the defendant's plea agreement lacked an explicit waiver of the rights granted by K.S.A. 22–4513(b), and, without that, it could not determine whether there was an intentional relinquishment of a known right. 290 Kan. at 218. As a result, the Copes court remanded the case to the trial court with directions to consider the defendant's financial resources and the burden of paying the BIDS attorney fees. 290 Kan. at 218.
Unfortunately, in our case, Barksdale failed to make his plea agreement a part of the record. Without seeing his plea agreement to determine whether there was an explicit waiver of the rights granted by K.S.A. 22–4513(b), we cannot presume that Barksdale effectively waived those rights. Additionally, neither party argues that there was an explicit waiver of the rights granted by K.S.A. 22–4513(b); in fact, the State concedes that the trial court erred on this issue. Therefore, we remand this case to the trial court with directions to consider Barksdale's financial resources and the burden of paying the BIDS attorney fees. Did the Trial Court Have Jurisdiction When It Assessed $8,500 in Attorney Fees to Barksdale?
Next, Barksdale argues that the trial court lacked jurisdiction when it modified his BIDS reimbursement fee from $350 to $8,500. The State contends that it was simply correcting a clerical error when it changed the attorney fees from $350 to $8,500. The State relies on K.S.A. 22–3504(2), which states: “Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders .”
In State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986), our Supreme Court stated: “Clerical mistakes within the record include typographical errors, incorrect statute numbers, failure to include the statute number, failure to state additional true matter, formal or clerical errors and entries concerning matters of procedure. Such omissions are correctable by nunc pro tunc orders.”
Here, it is apparent that the attorney fee modification does not fall within those clerical errors which can be corrected under K.S.A. 22–3504(2). The record clearly shows that the $350 attorney fees that were assessed came from the PSI report which recommended that amount for attorney fees. Additionally, the record reflects that the $350 attorney fees assessed by the court were correctly memorialized in the journal entry. Under these facts, there was nothing the trial court could correct under K.S.A. 22–3504(2). Thus, we hold that the trial court had no authority to modify the attorney fees under K.S.A. 22–3504(2) because there was no clerical error.
Therefore, on remand, the trial court need only determine whether the BIDS fee of $350 should be assessed once it considers Barksdale's financial resources and the burden that such payment would impose.
The attorney fees imposed are vacated and this case is remanded to the trial court with directions to consider Barksdale's financial resources and the burden of paying the BIDS attorney fees.