Opinion
No. 107,005.
2013-02-8
STATE of Kansas, Appellee, v. Christopher Todd WILSON, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge. Gerald E. Wells, of Lawrence, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Gerald E. Wells, of Lawrence, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Todd Wilson appeals his sentence in 10CR1276 following his convictions of aggravated battery against a law enforcement officer, fleeing or eluding a law enforcement officer, and possession of methamphetamine. Wilson argues that the district court erred in assessing restitution because there was no reliable evidence supporting the amount assessed. He also argues that the district court erred in assessing a Board of Indigents' Defense Services (BIDS) application fee of $100 without explicitly considering on the record his financial resources and the nature of the burden that the payment of the fee would impose. We affirm the district court's assessment of restitution, but we remand to obtain a finding from the district court regarding whether to waive the BIDS application fee for manifest hardship.
Wilson was charged with multiple offenses in each of three separate cases. In 10CR1086, Wilson applied for a court-appointed attorney and submitted a financial affidavit. The district court found Wilson to be indigent and appointed counsel. The district court also informed Wilson that there was a BIDS application fee of $100 and that he might be required to reimburse BIDS for all or part of the costs of representation. In 10CR1272 and 10CR1276, Wilson apparently did not file separate BIDS applications, but at his first appearance he requested that the district court appoint the attorney who was representing him in 10CR1086 to also represent him in the two new cases.
Under a plea agreement covering all three cases, Wilson pled guilty to a number of charges in exchange for the dismissal of the remaining charges and a recommendation by the State that his total sentence not exceed 120 months. The sentencing hearing was held on July 11, 2011. The district court sentenced Wilson to a controlling term of 120 months' imprisonment for all three cases. The district court then imposed fees, including the BIDS application fee of $100 in each case, but retained jurisdiction to later consider reimbursement of BIDS attorney fees. However, the record on appeal does not reflect that the district court ever ordered reimbursement of BIDS attorney fees. Finally, the district court retained jurisdiction over the restitution issue in 10CR1276. On July 13, 2011, Wilson filed a notice of appeal in each case, stating that he was appealing “the judgment and conviction entered in this case on July 11, 2011.”
The restitution hearing was held on August 4, 2011. The State called Nancy Schuessler, a risk management specialist who protects assets for and handles claims against the City of Salina (City), to testify as to the amount of damages sustained by the City as a result of the crimes for which Wilson was convicted in 10CR1276. Schuessler testified that the City paid $1,014.25 in medical bills for a police officer who was injured after the police vehicle she was driving was hit. The police vehicle was also totaled, for which the City paid a $500 insurance deductible. The City was reimbursed $9,057 by its insurance carrier for the totaled police vehicle. Although not included in the record on appeal, Schuessler apparently provided Wilson with documents substantiating those amounts. Wilson did not present any evidence. He argued that since the City was reimbursed $9,057 by its insurance carrier and the insurance carrier was not part of the proceedings, he should only be ordered to pay $1,514.25 in restitution. The district court ordered restitution of $10,571.25, with $1,514.25 to go to the City and $9,057 to go to the City's insurance carrier. Wilson did not file any additional notice of appeal.
Wilson's appeal in 10CR1086 was docketed as No. 107,003; the appeal in 10CR1272 was docketed as No. 107,004; and the appeal in 10CR1276 was docketed as No. 107,005. This court initially issued a show-cause order as to why the three separate cases should not be consolidated, but on January 26, 2012, Judge Michael B. Buser entered an order that the cases would not be consolidated on appeal.
Restitution Order in 10CR1276
Wilson argues that the district court erred in assessing restitution in 10CR1276 because it had no evidence upon which to base the restitution amount. He specifically contends that Schuessler was not qualified to testify that the police vehicle was totaled or to testify as to the value of the totaled vehicle. He also contends that the State failed to introduce any documentary evidence as to the costs of the police officer's medical bills, the value of the police vehicle, and the City's obligation to pay an insurance deductible for the police vehicle. Finally, he asserts that under K.S.A. 21–4610(d)(1) the district court should have expressly considered his ability to pay restitution.
The State contends that this court has no jurisdiction to consider the restitution issue because it was not included in the notice of appeal filed on July 13, 2011, and Wilson failed to file an additional notice of appeal after the restitution hearing held on August 4, 2011. In the alternative, the State asserts that Wilson cannot challenge the amounts paid by the City for the police officer's medical bills or the insurance deductible and cannot challenge the district court's failure to consider his ability to pay restitution where he did not raise those issues before the district court. The State also contends that Schuessler's testimony about the value of the totaled police vehicle was reliable evidence supporting a defensible restitution figure. Jurisdiction
Whether jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). An appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004).
In State v. Long, 294 Kan. 939, 281 P.3d 176 (2012), the State challenged our Supreme Court's jurisdiction to consider restitution issues on appeal where the district court decided at sentencing to leave the issue of restitution open for 30 days. The defendant timely filed a notice of appeal after the sentencing hearing, which stated “his intention to appeal the sentence and all adverse rulings.” 294 Kan. at 940. After the defendant filed his notice of appeal, the district court entered an order of restitution. The State contended that the defendant's notice of appeal, filed before the order of restitution was entered, failed to indicate he was appealing from the district court's order of restitution and consequently our Supreme Court lacked jurisdiction over the restitution issues. Our Supreme Court summarily rejected this argument, concluding that the notice of appeal was sufficiently broad to include the defendant's restitution issues. 294 Kan. at 940.
This case is distinguishable from Long because here Wilson's notice of appeal specifically stated that he was appealing “the judgment and conviction entered in this case on July 11, 2011.” The notice of appeal is insufficiently broad to cover the restitution order announced at the restitution hearing held on August 4, 2011, and no subsequent notice of appeal was ever filed. Thus, this court lacks jurisdiction to consider Wilson's restitution issues. See State v. McDaniel, 292 Kan. 443, 446–48, 254 P.3d 534 (2011) (deadline for appealing sentence including restitution order does not expire until after restitution hearing is completed). Merits
Even if Wilson's notice of appeal were sufficiently broad to cover the restitution issue he raises, then this court reviews the amount of restitution and the method of determining the amount of restitution for abuse of discretion. In this context, judicial discretion is abused where no reasonable person would take the view adopted by the district court. State v. Casto, 22 Kan.App.2d 152, 153–54, 912 P.2d 772 (1996).
K.S.A.2010 Supp. 21–4603d(b)(1) provides that the sentencing court “shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” “Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure.” Casto, 22 Kan.App.2d at 154.
As the State points out, appellate review of Wilson's arguments regarding the reliability of the evidence, the defensibility of the restitution amount, and the district court's failure to consider Wilson's financial circumstances is not proper because Wilson failed to raise these arguments before the district court. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). Wilson even explicitly conceded that the $1,014.25 for medical bills and $500 insurance deductible should be part of the restitution order. The only objection Wilson made was that he should not be required to pay restitution for the police vehicle because the City had already been reimbursed by its insurance carrier. Wilson has not renewed this argument on appeal.
In any case, Wilson's arguments have no merit. As a risk management specialist for the City, Schuessler could testify as to the costs paid by the City that were incurred as a result of Wilson's crimes. Furthermore, the transcript of the restitution hearing indicates that the State provided documents to Wilson before the hearing substantiating the costs to which Schuessler testified. These documents are not included in the record on appeal, and it is thus impossible for this court to make any determination as to their reliability. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (party claiming error has burden of designating a record that affirmatively shows prejudicial error). As to the district court's failure to expressly consider Wilson's ability to pay restitution, this court has found that a sentencing court is not required to independently consider the defendant's financial circumstances before ordering restitution. State v. Cole, 37 Kan.App.2d 633, 638–39, 155 P.3d 739 (2007). Thus, the district court did not err in assessing restitution against Wilson.
BIDS Application Fee
Wilson argues that the district court erred in assessing at sentencing the BIDS application fee of $100 in each case without explicitly considering on the record his financial resources and the nature of the burden that payment of the fee would impose, contrary to K.S.A. 22–4513(b) and State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006). The State argues that K.S.A. 22–4513 and Robinson are not controlling as to the assessment of the BIDS application fee (as opposed to BIDS attorney fees) and that the district court either properly considered Wilson's financial circumstances in assessing the BIDS application fees or that Wilson failed to furnish a record affirmatively showing that the district court erred in assessing such fees.
Resolution of this issue requires this court to interpret K.S.A. 22–4513 as well as K.S.A. 22–4529, which governs the assessment of BIDS application fees. Interpretation of a statute is a question of law over which an appellate court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
K.S.A. 22–4513 states in relevant part:
“(a) If the defendant is convicted, all expenditures made by [BIDS] to provide counsel and other defense services to such defendant ... shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
“(b) 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.... If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.”
K.S.A. 22–4529 states in relevant part:
“Any defendant entitled to counsel pursuant to K.S.A. 22–4503, and amendments thereto shall pay an application fee in the amount of ... $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee.”
In Robinson, our Supreme Court interpreted K.S.A. 22–4513 to require the sentencing judge, when determining the amount and method of payment of BIDS fees, to explicitly consider on the record the financial resources of the defendant and the nature of the burden the payment will impose. 281 Kan. at 546.Robinson did not distinguish between attorney fee reimbursement and the $100 application fee. 281 Kan. at 543–44.
In State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008), our Supreme Court examined K.S.A. 22–4513 and K.S.A. 22–4529 and found that the provisions of K.S.A. 22–4513 upon which Robinson was based “were not intended to apply to the [BIDS] application fee. Instead, a determination is to be made at the time that a defendant applies for counsel as to whether ‘payment of the application fee will impose manifest hardship on the defendant.’ “ The Hawkins court stated:
“In conjunction with applying for court-appointed counsel, the defendant is required to file an affidavit as to his or her financial condition. The court may interrogate the defendant under oath concerning the affidavit's contents, may direct the prosecutor or other county officer to investigate defendant's financial condition, or may require the production of evidence on the issue of defendant's inability to employ counsel. K.S.A.2006 Supp. 22–4504(a). Upon the basis of the affidavit and other such evidence as may be brought to the court's attention, the court is to make a determination whether the defendant is indigent, in full or in part, or whether the defendant is financially able to employ his or her own counsel. K.S.A.2006 Supp. 22–4504(b).
....
“Thus, determining whether payment of the application fee would impose manifest hardship on the defendant would be but a minor extension of the analysis which the district court is already performing when assessing eligibility for court-appointed counsel.
....
“If the district court receives an application for counsel that is not accompanied by the application fee, the court should be able to determine from the affidavit and other evidence gathered to assess eligibility for court-appointed counsel whether payment of the $100 application fee would impose manifest hardship upon defendant. At that point, the district court may order the application fee to be paid or may waive all or part of the fee. Only if a defendant seeks to modify an order to pay the fee would the defendant bear the additional burden [of coming forward to plead and prove manifest hardship with additional evidence]. Moreover, if any fee ordered by the court remains unpaid at sentencing, the district court may include the unpaid fee in its sentencing order without additional findings.” 285 Kan. at 852–53.
Finally, the Hawkins court noted that the defendant had been ordered to pay the BIDS application fee within 30 days after his first appearance, but apparently he did not comply with the order and no action was taken to enforce it prior to sentencing. Because there was an order in place that the defendant never attempted to modify, the Hawkins court determined that the sentencing court was not required to make any further inquiry as to the defendant's ability to pay the application fee. Thus, the assessment of the fee was affirmed on appeal. 285 Kan. at 854.
In State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009), the defendants argued that the district court erred in assessing the BIDS application fee at sentencing without considering whether payment of the fee would impose manifest hardship on them. Relying on Hawkins, our Supreme Court reiterated that the time for the district court to consider a criminal defendant's ability to pay the BIDS application fee is when the defendant submits the application for appointed counsel, and no additional findings need to be made at sentencing for it to be a valid judgment. Phillips, 289 Kan. at 43–44. With respect to defendant Phillips, the record on appeal adequately reflected that the district court had considered his ability to pay the application fee at the time counsel was appointed where the district court had checked the box ordering payment of the application fee. Thus, there was no need to remand the case to the district court for consideration of whether the BIDS application fee would impose manifest hardship. But with respect to defendant Wenzel, the district court did not check the box ordering payment of the application fee, nor did the district court indicate that it was waiving the fee. In that context, remand to the district court was warranted to obtain a finding regarding whether to waive the BIDS application fee for manifest hardship. 289 Kan. at 44–45. Finally, our Supreme Court stated:
“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 BEDS 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.” 289 Kan. at 45.
Here, the record reflects that in 10CR1086, Wilson applied for a court-appointed attorney and submitted a financial affidavit. The district court found Wilson to be indigent based on his financial affidavit but ordered him to pay the BIDS application fee of $100 by checking the appropriate box on the application form and by informing Wilson in open court that he would be required to pay the application fee. Under Hawkins and Phillips, the record reflects that at the time counsel was appointed the district court considered whether the application fee would impose manifest hardship. Furthermore, an order to pay the fee was in place, and Wilson never challenged that fee. Thus, the district court did not err by assessing the BIDS application fee in 10CR1086 at sentencing without making additional findings about manifest hardship.
In 10CR1272 and 10CR1276, it appears that the district court found Wilson eligible and appointed counsel on the basis that Wilson was already being represented by appointed counsel in 10CR1086. But there is no indication that the district court considered whether the BIDS application fees would impose a manifest hardship, either at the time counsel was appointed or at any later time, and no indication that the district court ordered that the application fees be paid at any time before sentencing. Thus, under Hawkins and Phillips, 10CR1272 and 10CR1276 must be remanded to obtain a finding regarding whether to waive the BIDS application fees for manifest hardship.
In summary, the district court's restitution order in 10CR1276 is affirmed. But we remand 10CR1276 to obtain a finding from the district court regarding whether to waive the BIDS application fee for manifest hardship.
Affirmed in part and remanded in part with directions.