Opinion
No. 106,414.
2012-06-1
STATE of Kansas, Appellee, v. Logan BELL, Appellant.
Appeal from Saline District Court; Rene A. Young, Judge.
Submitted for summary disposition by the parties pursuant to K.S.A. 21–4721(g) and (h).
Before McANANY, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Logan Bell appeals his sentence on grounds that the district court erred in denying his departure motion, in utilizing his prior record to enhance his sentence without requiring that record be proven to a jury, and in ordering him to pay the Board of Indigents' Defense Services (BIDS) application fee. Finding no error, we affirm the district court.
In 2010, Bell pled no contest to one count of robbery, in violation of K.S.A. 21–3426. Under the plea agreement, Bell was permitted to move for a downward dispositional and durational departure of his sentence. The district court accepted Bell's plea, and Bell then filed a departure motion.
At his sentencing hearing, Bell did not object to the district court's determination of his criminal history score. In support of his departure motion, he testified he was 19 when he committed the robbery, drank alcohol and smoked marijuana on the night of the robbery, was amenable to treatment, and played a lesser role in the robbery than his accomplices. The court, however, denied Bell's motion and ordered he serve a 57–month prison sentence, the standard sentence for robbery by someone with his criminal history score.
The district court also inquired about Bell's education and employment and then ordered him to pay the $100 BIDS application fee. We note, however, the court did not order him to pay any attorney fees for services rendered by BIDS.
Bell first argues on appeal that the district court erred in refusing to grant his downward departure motion because he was 19 and intoxicated when the robbery occurred, and because he claimed to be amenable to treatment. The State asserts an appellate court lacks jurisdiction to review whether a district court erred in denying a defendant's request for a departure sentence.
Resolution of the issue requires interpretation of a sentencing statute, which is a question of law over which we have unlimited review. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). K.S.A. 21–4721(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines for the crime, or (2) the result of a plea agreement between the State and the defendant which the trial court approved on the record. See State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). More specifically, an appellate court lacks jurisdiction to consider an appeal when the trial court denies a motion for departure if the sentence is within the presumptive guidelines for that crime. State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566,rev. denied 284 Kan. 951 (2007).
In the present case, we lack jurisdiction to consider whether the district court erred in denying Bell's downward departure motion.
As to his argument about his criminal history, we first note that Bell had a criminal history score of a C under the Kansas Sentencing Guidelines. This, of course, increased his sentence beyond what it would be for a first time offender. See K.S.A.2009 Supp. 21–4704. He argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this criminal history score-composed of both juvenile adjudications and prior adult crimes-should have been determined by a jury.
Bell appropriately acknowledges that State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), clearly forecloses his arguments on this issue. We are duty bound to follow Kansas. Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Singleton, 33 Kan.App. 478, 488, 104 P.3d 424 (2005). Our Supreme Court is not departing from its position articulated in Ivory. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (refusing to overrule Ivory ). Bell's appeal on his criminal history score fails.
In his final argument, Bell contends the district court erred in assessing attorney fees against him because the court failed to “take into account his financial resources or the burden that the fees would impose.” The State correctly asserts the court only ordered Bell to pay the BIDS application fee and not any attorney fees.
Again, the issue requires interpretation of a statute, which is a question of law over which we have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Under K.S.A. 22–4529, a defendant who applies to BIDS for legal representation must pay a $100 application fee to the district court, which may waive the fee, in part or in whole, if it would impose a “manifest hardship” on the defendant. Bell, however, does not argue he suffered any manifest hardship, and cites no cases to substantiate his argument. Consequently, this argument fails. See McCaslin, 291 Kan. at, 709 (an issue not briefed by the appellant is deemed waived or abandoned). Moreover, the district court did not err because it expressly considered Bell's financial circumstances by inquiring about his education and work history and did not require him to pay any amount of the attorney fees. See also State v. Casady, 289 Kan. 150, 157, 210 P.3d 113 (2009) (Reasoning that “the district court apparently considered [the defendant's] financial circumstances, because it declined to impose BIDS attorney fees.”).
The district court did not err in sentencing Bell or in assessing the $100 BIDS application fee against him.
Affirmed.