State v. Ali ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,317
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
IBRAHEEM R. ALI,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed March 26, 2021.
Reversed and remanded with directions.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and ATCHESON, JJ.
PER CURIAM: Ibraheem R. Ali appeals the sentencing court's denial of his motion
for relief from judgment. Ali seeks the return of the Board of Indigents' Defense Services
(BIDS) attorney fees. Because we conclude that the sentencing court which sentenced Ali
did not appropriately assess attorney fees under K.S.A. 1998 Supp. 22-4513, we reverse
and remand for further proceedings not inconsistent with this opinion.
A jury convicted Ali of two counts of aggravated robbery and one count of
kidnapping in Douglas County case No. 1998CR332. In July 1998, the court sentenced
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Ali to 194 months in prison, followed by 36 months of postrelease supervision. The
sentencing court also ordered Ali to pay court costs of $134.50, restitution of $240, and
attorney fees "as determined by the Court." The sentencing court did not specify the
amount of attorney fees anywhere in the journal entry of judgment. The record does not
contain any other judgment of the court which specifies an amount of attorney fees.
Ali appealed his convictions, which were affirmed. State v. Ali, No 81,997,
unpublished opinion filed June 30, 2000 (Kan. App.). Over the years, Ali has made
numerous unsuccessful arguments to the trial court and unsuccessful appeals to this court.
In July 2018, Ali argued for the first time in a "Motion for Void Judgment" that he
should be reimbursed for the attorney fees that he had paid. He argued that the sentencing
court deprived him of due process when it imposed those fees without holding a hearing,
considering his financial situation, or allowing him an opportunity to contest the fees. In
denying Ali's motion, the sentencing court reasoned: (1) that the order was lawful when
it was made, (2) that Ali was present at sentencing and could have protested the
assessment of attorney fees, and (3) that Ali did not move for relief within a reasonable
time.
Ali timely appeals.
Did the Sentencing Court Err in Denying Ali's Motion?
In 1998, a court sentenced Ali to 194 months in prison and to pay attorney fees.
Ali argues that the sentencing court's failure to make appropriate findings under K.S.A.
1998 Supp. 22-4513 was fatal to the alleged attorney fee judgment because it denied Ali
due process. We agree.
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A party claiming an error occurred has the burden of designating a record that
affirmatively shows prejudicial error. Without such a record, an appellate court presumes
the action of the trial court was proper. State v. Simmons, 307 Kan. 38, 43, 405 P.3d 1190(2017). See also State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The burden
is on the party making a claim of error to designate facts in the record to support that
claim; without such a record, the claim of error fails.").
Ali argues that the sentencing court did not enter a valid judgment for attorney
fees applicable under K.S.A. 1998 Supp. 22-4513. This statute requires defendants who
are convicted to reimburse BIDS for attorney fees. K.S.A. 1998 Supp. 22-4513(b) states
the following:
"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. A defendant who has been required to pay such sum
and who is not willfully in default in the payment thereof may at any time petition the
court which sentenced the defendant to waive payment of such sum or of any unpaid
portion thereof. 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."
Ali argues that no valid judgment for attorney fees exists in his record.
Alternatively, Ali argues that if such judgment exists, the judgment would be void
because the sentencing court did not follow the requirements of K.S.A. 1998 Supp. 22-
4513(b).
The State argues that the sentencing court's judgment for attorney fees,
presumably issued in 1998, is not included in the current record. Significant portions of
the physical record seem to have been transferred to the United States District Court for
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Kansas. Ali concedes that these portions of the physical record were never returned from
that court. Further, the physical paper record now exists in electronic form. The record is
not clear on how and when this transformation occurred. The State contends that Ali asks
this court to draw conclusions from a silent and potentially incomplete record.
If the record were silent, then Ali could not meet his burden to designate error. But
Ali does more than just note that a judgment for attorney fees is absent from the record.
For example, Ali points to evidence in the record that the court made no such judgment.
The sentencing court here did not include findings of fact in its order. But this court has
the same access to the record as the sentencing court and can assess whether Ali meets
his burden to designate facts in the record to support his claim of error. See State v.
Wilson, 308 Kan. 516, 520, 421 P.3d 742 (2018) (reviewing record in context of motion
to withdraw plea); State v. Alford, 308 Kan. 1336, 1338, 429 P.3d 197 (2018) (reviewing
record in context of motion to correct illegal sentence).
Ali's citations to the record establish that the sentencing court did not follow the
procedure required by K.S.A. 1998 Supp. 22-4513(b). First, Ali points to the journal
entry of judgment which does not establish an amount for attorney fees. On this point, the
State incorrectly argues that Ali failed to furnish a record which shows error because Ali
did not provide a transcript of sentencing. The State contends that the trial court may
have stated an amount of attorney fees on the record, but the sentencing court "simply
failed to mark it down in the journal entry."
Ali quickly rebuts the State's contention. He notes that even if the court had stated
a sum certain on the record, a valid judgment still would not exist. Judgments for BIDS
fees shall be enforced as judgments for payment of money in civil cases. K.S.A. 22-
4513(a). A civil money judgment must be reduced to writing, signed by a judge, and filed
with the clerk. K.S.A. 2020 Supp. 60-258(a). "[T]he sentencing court shall consider the
defendant's financial circumstances in setting the amount and payment method of [BIDS
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attorney] fees." (Emphasis added.) State v. Drayton, 285 Kan. 689, 715, 175 P.3d 861(2008). In Drayton, the sentencing court ordered the defendant to reimburse BIDS for
$7,110 in attorney fees. But the sentencing court acknowledged that the defendant's
financial condition did not make it likely that he would pay or would have the ability to
pay the BIDS fees. Our Supreme Court held that the sentencing court erred by not
changing the amount to reflect the defendant's inability to pay that amount. 285 Kan. at
715-18. Thus, the amount of attorney fees assessed against a criminal defendant must be
specific, reduced to writing, signed by a judge, and filed with the clerk. The journal entry
here ordering Ali to pay attorney fees is not enough by itself because it does not specify a
sum certain. There would need to be another judgment which precisely states the amount
of attorney fees. The record shows that no such judgment was ever made.
As the State correctly points out, the mere absence of a judgment for attorney fees
does not show much, particularly given the state of the record. Instead, two possibilities
exist. Either a judgment for attorney fees existed and is lost, or no judgment for attorney
fees ever existed. Ali has sufficiently designated portions of the record that show no valid
judgment ever existed.
First, Ali points out that the record makes it difficult to determine how attorney
fees were entered and by whom. The journal entry orders Ali to pay three amounts:
restitution of $240, court costs of $134.50, and "Attorney Fees as determined by the
Court." The record shows that Ali has paid $2,460.79. An entry in "Case Information"
lists "Attorney Fee State Reimbursement" as $2,270. But no journal entry supports the
clerk's office entering the amount of $2,270.
Interestingly, the "Case Information" does not state that it was made according to a
judgment of the sentencing court. First, an assessment is entered for $3,385. This entry
matches the attorney voucher paid by BIDS―an action filed with the District Court of
Douglas County on October 13, 1998. But then an adjustment of $1,115 is made to this
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total of $3,385. In an evident mistake, $1,115 is then subtracted as a "Data entry error."
Thus, the original figure of $3,385 is reduced by $1,115 down to $2,270 "per BIDS fee
schedule," but not "per court judgment." The record is not clear on whether the
sentencing judge adjusted the amount "per BIDS fee schedule" or someone else made the
adjustment. By contrast, the same page is specific on why the collection fee of $1,190.84
is waived. A reduction of $1,190.84 is made "per [Judge] John Buckley's email dated
3/31/06." In short, the entries here are specific, yet fail to mention a judgment for
attorney fees.
Ali also explains that the nunc pro tunc judgment which adjusted his jail credit
contains a clue that the sentencing court never created a judgment for attorney fees. In the
section of this nunc pro tunc journal entry labeled "Restitution to be paid as follows," the
court entered "See original order." But the entry for BIDS attorney fees states: "TBD."
The court entering the nunc pro tunc judgment can point back to an earlier judgment to
determine restitution, but not for attorney fees.
The record is simply inconsistent with the existence of a journal entry of judgment
for attorney fees. No amount is listed on the original judgment or the nunc pro tunc
judgment. The original journal entry was dated July 29, 1998, but Ali's attorney
submitted a voucher for attorney fees on September 1, 1998. The record does not state if
Ali's attorney calculated fees before sentencing, or over a month later, when submitting
the voucher to BIDS. If Ali's attorney calculated attorney fees before or at sentencing,
then the July 29, 1998 journal entry of sentencing should reflect that amount. But it does
not. A judgment for attorney fees should appear between July and October 1998. But the
best indicator of what did and did not exist was the list of case filings.
The case filings run from the complaint, filed on March 13, 1998, to this court's
mandate on October 2, 2000. The case filings are detailed, including every subpoena
issued, every subpoena returned with service and without service, all motions, responses,
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and orders. The sentencing journal entry, which orders attorney fees but does not specify
an amount, is listed on July 29, 1998. The "Attorney Voucher to State" comes more than
a month later on September 1, 1998. Then, "Attorney Voucher Pd by BIDS, 3385.00"
occurs on October 13, 1998. A "Trustee Referral" is listed on April 26, 2000.
Conspicuously absent is any judgment from the court ordering attorney fees in a specified
amount. Every filing is comprehensively listed on these six pages, but a judgment for
attorney fees is not mentioned on the list. The record does more than show an absence of
the judgment for attorney fees. The record positively states that the court assessed
attorney fees without making special findings, as Ali maintains.
Both Ali and the State argue the application of State v. Robinson, 281 Kan. 538,
132 P.3d 934 (2006). In 2006, our Supreme Court held that a sentencing court must make
financial hardship findings on the record when ordering attorney fees under K.S.A. 2005
Supp. 22-4513(b). 281 Kan. 538, Syl. ¶ 1. Ali argues that the sentencing court did not
make these findings at sentencing or hold a separate hearing to make the appropriate
findings on the record. Thus, Ali argues that the failure to comply with the statute was
fatal to a valid judgment of attorney fees. On the other hand, the State argues that our
Supreme Court decided Robinson eight years after Ali's sentence and, thus, the precedent
did not apply to Ali's sentencing.
Nevertheless, the Robinson holding answers the question in the affirmative if a
sentencing court must state the factors in assessing attorney fees explicitly on the record.
281 Kan. at 546-47; see also State v. Phillips, 289 Kan. 28, 31-32, 42-43, 201 P.3d 93(2009). The record here shows that the sentencing court never made the findings at all on
the record. K.S.A. 1998 Supp. 22-4513 required the sentencing court to make financial
hardship findings, but the court could not have determined Ali's ability to pay attorney
fees because the court never ordered an amount of attorney fees.
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Also, the remedy for a sentencing court's failure to make explicit findings is to
remand to the lower court for these findings. Robinson, 281 Kan. at 548.
Finally, the State argues that Ali's challenge is 20 years too late. But Ali
challenges the judgment as void under K.S.A. 2020 Supp. 60-260(b)(4). Of all reasons
for relief from judgment listed in K.S.A. 60-260(b), only (b)(4) has no time limit because
a "reasonable time" to challenge a void judgment is at any time. "A motion to set aside a
void judgment may be made at any time, because the passage of time cannot cure the
defect of a void judgment." Miller v. Glacier Development Co., 293 Kan. 665, 672, 270
P.3 1065 (2011); see also Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124,
(1982). Also, on this point, the State misreads our Supreme Court's opinion in State v.
Ehrlich, 286 Kan. 923, 926, 189 P.3d 491 (2008). Our Supreme Court held that Ehrlich
did not raise the issue of BIDS attorney fees in a way which invoked appellate
jurisdiction. He appealed outside of the statutory time limitation for appeal in K.S.A. 22-
3608(c). Because Ehrlich's appeal was out of time, appellate courts had no jurisdiction to
consider his appeal. 286 Kan. at 926. The rule from Ehrlich is simply that if an appeal is
made, the appeal must be timely. But Ehrlich did not address whether a defendant can
challenge a judgment for attorney fees as void, as Ali does here under K.S.A. 2020 Supp.
60-260(b)(4). The State's claim that Ali could only contest attorney fees on his first direct
appeal is not a question that Ehrlich answers.
But it is readily apparent from the record that the sentencing court did not take
account of Ali's financial resources and the nature of the burden that attorney fees would
impose. Furthermore, Ali did not have an opportunity to petition the sentencing court to
waive the payment or any unpaid portion thereof under K.S.A. 1998 Supp. 22-4513(b).
Our Supreme Court has stated that due process requires a judge to make the findings
necessary to support allocation and assessment of any cost where the Legislature has
granted judges discretion to impose or determine the amount of costs, including BIDS
attorney fees. Phillips, 289 Kan. at 30. Here, the sentencing court made no such findings
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and made no journal entry specifically stating the amount of attorney fees. Thus, this
would have given Ali no opportunity to contest all or a portion of the attorney fees
assessed. The journal entry here simply stated that Ali would pay attorney fees "as
determined by the Court" is void because that judgment was inconsistent with K.S.A.
1998 Supp. 22-4513(b) and with due process.
Indeed, Ali's due process is specifically set out under K.S.A. 1998 Supp. 22-4513.
Because the sentencing court failed to follow the notice and hearing requirements of this
statute, the judgment that Ali would pay attorney fees "as determined by the Court" is
void. See Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, Syl. ¶ 6, 136 P.3d 457(2006) ("To satisfy due process, notice must be reasonably calculated, under all of the
circumstances, to apprise interested parties of the pendency of the action and to afford
them an opportunity to present their objections. Without such notice, due process is
denied and any resulting judgment rendered is void."); see also Automatic Feeder Co. v.
Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976). "[A judgment] is void only if the court
rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted
in a manner inconsistent with due process." (Emphasis added.)
In Phillips, our Supreme Court provided instructions on how to remedy attorney
fees which a sentencing court imposes without considering the defendant's financial
resources or the burden that the payment would impose. "[T]he assessment of BIDS
attorney fees is not punitive and not a part of the sentence." 289 Kan. at 43. Thus, the
sentencing court's failure to announce the amount of the fee does not mean that the fee
can never be assessed. "Instead, a remand is appropriate for reconsideration of the
payment of BIDS attorney fees." 289 Kan. at 43. Because Ali was not afforded due
process on the issue of attorney fees, it is appropriate for this court to remand the case to
the sentencing court. On remand, the sentencing court's task will be to consider the
financial resources of the defendant and the nature of the burden that payment of $2,270
would have imposed on Ali, on or about October 13, 1998, when the sentencing court
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should have determined whether to assess a BIDS attorney fee in this matter. If the
sentencing court determines that Ali's financial condition, on or about October 13, 1998,
made it unlikely that he could pay all or part of the BIDS attorney fee, the court will
waive payment of all or part of this amount and reimburse this amount to Ali.
For the preceding reasons, we reverse and remand for further proceedings
consistent with this opinion.
Reversed and remanded with directions.
***
ATCHESON, J., concurring: I am puzzled by how the State and Ibraheem R. Ali
have framed and argued the issues over his reimbursement of fees for the appointed
lawyer who represented him in this criminal case. The State made regular and involuntary
assessments against Ali's earnings while he was in prison. They ended in 2012. About six
years later, Ali filed this motion to get his money back. Given what has been presented to
us and despite my misgiving we are playing a role in what amounts to a legal fiction, I
concur in the result we reach. In circumstances before us, it seems fair to remand Ali's
motion to the Douglas County District Court to conduct an after-the-fact hearing
comporting with K.S.A. 1998 Supp. 22-4513(b) and to afford Ali some financial
recompense if the attorney fee reimbursement apparently would have imposed an
impermissible burden on him when he was sentenced in 1998.
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