Opinion
No. 110918.
2015-03-6
STATE of Kansas, Appellee, v. Calvin McGINNES, Appellant.
Appeal from Neosho District Court; Daryl D. Ahlquist, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.Linus A. Thuston, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Neosho District Court; Daryl D. Ahlquist, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Linus A. Thuston, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Calvin McGinnes pled no contest to one count of possession of marijuana with the intent to distribute, a severity level 3 drug felony. On appeal, McGinnes raises two arguments. First, McGinnes argues that the trial court erred when it imposed attorney fees. Specifically, McGinnes argues the trial court erred because it did not state the amount he owed on the record, did not consider his financial resources, and did not consider the burden imposed on him by paying the fees. Second, McGinnes argues that the trial court violated his Sixth and Fourteenth Amendment rights when it increased his sentence based on his criminal history without proving that criminal history to a jury. Of these two issues, we find only the first to have merit. As a result, we vacate that part of the sentence awarding the “to be determined” attorney fees and remand to the trial court to comply with K.S.A. 22–4513(a) and (b). Accordingly, we affirm in part, vacate in part, and remand with directions.
McGinnes pled no contest to one count of possession of marijuana with the intent to distribute. McGinnes had a criminal history score of G. At the sentencing hearing, McGinnes' attorney moved for a downward durational departure to a 15–month prison sentence in accordance with his plea agreement. The trial court granted the downward durational departure. The trial judge never ordered McGinnes to pay attorney fees on the record. The trial judge never considered McGinnes' financial resources or the burden that the payment of attorney fees would impose. The journal entry of judgment, however, required McGinnes to pay attorney fees that were to be determined. Did the Trial Court Err When It Imposed Attorney Fees?
On appeal, McGinnes argues that the trial court failed to state the specific attorney fees he owed BIDS on the record. McGinnes additionally argues that the trial court failed to consider his financial resources or the nature of the burden that payment of the fees would impose. McGinnes asks this court to vacate the imposition of the attorney fees and remand to the trial court to determine the specific attorneys fees owed to the Board of Indigents' Defense Services (BIDS) while considering McGinnes' financial resources and the nature of the burden that paying the fees would impose.
K.S.A. 22–4513(a) requires that the trial court to tax against the defendant the lesser of all BIDS' expenditures to provide counsel and other defense services or “the amount allowed by the BIDS reimbursement tables.” K.S.A. 22–4513(b) provides that “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.” Interpretation of a statute is a question of law over which an appellate court exercises unlimited review. State v. Stevens, 285 Kan. 307, 327–28, 172 P.3d 570 (2007), ( overruled on other grounds by State v. Littlejohn, 298 Kan. 632, 316 P.3d 136 [2014] )
In Stevens the trial court did not state the specific amount of attorney fees to be reimbursed to BIDS. Our Supreme Court held that the sentencing court was required to tax a specific amount of attorney fees claimed by BIDS before it considered Stevens' ability to reimburse BIDS. 285 Kan. 328–31. The court then reversed and remanded for the trial court to tax a specific amount of attorney fees claimed by BIDS. 285 Kan. at 330–31.
In State v. Robinson, 281 Kan, 538, 543, 132 P.3d 934 (2006), our Supreme Court held that the trial court erred when it assessed attorney fees to reimburse BIDS without considering the defendant's financial resources and the nature of the burden that payment of the fees would impose on the record at the time of the assessment. The Robinson court ruled that a trial court must consider these factors explicitly on the record, stating how the court weighed the factors in its decision to comply with the plain language of K.S.A. 22–4513(b). 281 Kan. at 546. Failure to consider the factors is reversible error. 281 Kan. at 543.
In this case, the trial judge never ordered the payment of BIDS attorney fees on the record. Nevertheless, the trial court approved the sentencing journal entry with the fees “to be determined.” Moreover, the trial court failed to consider McGinnes' financial resources and the nature of the burden that the fees would impose on the record. The State acknowledges that the trial court failed to comply with K.S.A. 22–4513(a) and (b). Thus, the trial court erred because its ruling did not conform to K.S.A. 22–4513(a) and (b). Accordingly, as in Stevens and Robinson we vacate the imposition of attorney fees and remand to the trial court to determine if attorney fees should have been included in the journal entry and comply with K.S.A. 22–4513 and Robinson. Did the Trial Court Violate McGinnes' Constitutional Rights When It Used His Criminal History to Increase His Sentence Without Proving His Criminal History to a Jury?
McGinnes also argues that his Sixth and Fourteenth Amendment rights were violated when his prior convictions were used to increase his sentence without proving his prior convictions to a jury beyond a reasonable doubt. Specifically, McGinnes asserts that under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the State must submit to a jury and prove beyond a reasonable doubt “any fact that increases penalty for crime beyond the prescribed statutory maximum.” McGinnes concedes, however, that our Supreme Court decided this issue against him in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Review of this issue involves a question of law over which appellate courts exercise unlimited review. 273 Kan. at 46.
In Ivory our Supreme Court held that the use of criminal history scores is not unconstitutional under Apprendi. Ivory 273 Kan. at 46–48. Additionally, our Supreme Court rejected the argument that prior convictions should be treated as essential elements to be presented and decided by a jury. 273 Kan. at 46–47.
The Court of Appeals is duty bound to follow our Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Singleton, 33 Kan.App.2d 478, 488, 104 P.3d 424 (2005). There is no indication that our Supreme Court is departing from its decision in Ivory. Thus, the trial court did not err when it used McGinnes' prior criminal history to increase his sentence.
Affirmed in part, vacated in part, and remanded with directions to the trial court to comply with K.S.A. 22–4513 and Robinson.