Opinion
No. 107,143.
2012-09-7
STATE of Kansas, Appellee, v. Casey ZACH, Appellant.
Appeal from Cloud District Court; Kim W. Cudney, Judge. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cloud District Court; Kim W. Cudney, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following his conviction for unlawful possession of a precursor chemical with intent to manufacture a controlled substance, Casey Zach was sentenced to 54 months in prison. He was also ordered to reimburse the Board of Indigents' Defense Services (BIDS) attorney fees in the amount of $600. Because we find that the district court did not explicitly inquire regarding Zach's financial resources and the financial burden imposed before assessing the BIDS attorney fees, we vacate that portion of his sentence. But we affirm the remainder of Zach's sentence because his argument regarding the district court's use of his criminal history score is contrary to established precedent.
Facts
On January 4, 2011, the State filed a criminal complaint against Zach. Because Zach was indigent, the district court appointed an attorney to represent him. Eventually, Zach pled no contest to one count of unlawful possession of a drug precursor with the intent to manufacture a controlled substance. The district court accepted his plea and sentenced him to 54 months in prison.
At sentencing, the following discussion was then held on the record:
“[THE COURT:] Mr. Zach, is there any reason, over a period of time, you will not be able to meet your financial obligations in this case?
“[ZACH:] No.
“THE COURT: You will be able to?
“[ZACH:] Yeah.
“THE COURT: You will be able to over time?
“[ZACH:] Yes.”
Zach was then ordered to pay court costs, a KBI lab fee, a BIDS application fee, and BIDS attorney fees. Thereafter, Zach timely appealed his sentence.
Analysis
On appeal, Zach first argues that the district court abused its discretion by ordering him to pay the BIDS attorney fees without adequately considering his financial resources or the burden imposed by the fees. Resolution of this issue involves an interpretation of K.S.A. 22–4513. Interpretation of a statute is a question of law over which appellate courts have unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 22–4513(a) states that a convicted defendant shall be ordered to pay at least some of the BIDS expenses incurred in his or her defense. Meanwhile, 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 State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), the Kansas Supreme Court held a district court must explicitly consider on the record at the time of assessment of BIDS fees the financial resources of the defendant and the nature of the burden that payment will impose on the defendant. Moreover, a district court must state on the record how those factors have been weighed in the court's decision regarding how much, if any, of the fees to impose on a defendant. 281 Kan. at 546. “Without an adequate record on these points, meaningful appellate review of whether the court abused its discretion in setting the amount ... of the fees would be impossible.” 281 Kan. at 546.
In the present case, the district court generically asked Zach whether he would “be able to meet [his] financial obligations in this case.” Zach was not told the reason he was asked this question or the amount of fees for which he could be held responsible. Although the amount of this fee may appear reasonable, Robinson required the district court to make a more explicit inquiry of Zach regarding his financial resources and the burden an order to pay BIDS attorney fees would impose on him.
The State argues that because the district court sentenced Zach to prison, “any inquiry regarding present employment or circumstances wasn't necessary.” This court, however, has previously rejected this argument because “neither K.S.A. 22–4513 nor Robinson provide that a different inquiry may be made when a defendant is sentenced to prison rather than probation.” State v.. Gasper, No. 101,874, 2010 WL 4156739, at *2 (Kan.App.2010) (unpublished opinion). Thus, we vacate the assessment of the BIDS attorney fees and—assuming the district court still wants to consider the assessment—we remand the case to the district court to explicitly consider Zach's financial resources and the nature of the burden that the assessment will impose on him.
Zach also argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his criminal history score should have been determined by a jury rather than by the district court. But he acknowledges that the Kansas Supreme Court decided this issue against his position in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). Because we are duty bound to follow the precedent established by the Kansas Supreme Court and we find no indication that it will be departing from its decision in Ivory, we conclude that the district court did not err in using Zach's criminal history in calculating his sentence. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967(2011).
Affirmed in part, vacated in part, and remanded with directions.