State v. Wright ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,305
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
V.
JOHN BRENDAN WRIGHT JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed April 29,
2022. Reversed and remanded with directions.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before MALONE, P.J., SCHROEDER and HURST, JJ.
PER CURIAM: John Brendan Wright Jr. appeals from the district court's imposition
of Board of Indigents' Defense Services (BIDS) attorney fees at sentencing, arguing the
district court failed to properly consider his ability to pay. We agree. The district court
failed to make the necessary findings required under K.S.A. 22-4513(b), as explained by
our Supreme Court in State v. Robinson, 281 Kan. 538, 543-44, 546, 132 P.3d 934(2006). Accordingly, we reverse the imposition of BIDS attorney fees and remand to the
district court to make the necessary findings.
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FACTUAL AND PROCEDURAL BACKGROUND
In June 2020, Wright pled guilty to multiple felony crimes and the district court,
after granting a downward departure sentence, imposed 27 months' imprisonment with 12
months' postrelease supervision. The district court then assessed BIDS attorney fees after
making limited inquiry into Wright's ability to pay. In relevant part, the district court
asked: "Are you capable of working, Mr. Wright?" Wright responded, "Yeah I have a list
that would hire me right now." The district court then assessed a $100 BIDS application
fee and $300 in BIDS attorney fees. But the district court made no specific findings as to
Wright's ability to pay or the burdens the BIDS fees would impose. Wright filed a pro se
motion for appellate review, which the district court interpreted as a timely notice of
appeal and appointed appellate counsel for Wright.
ANALYSIS
Standard of Review
The imposition of attorney fees as part of a criminal sentence requires
interpretation of K.S.A. 22-4513, which presents a question of law subject to unlimited
review. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021); Robinson, 281 Kan. at
539. Appellate courts review the amount of attorney fees imposed for an abuse of
discretion State v. Hernandez, 292 Kan. 598, 609, 257 P.3d 767 (2011).
Discussion
Wright acknowledges he did not object to the imposition of attorney fees at
sentencing but correctly cites Robinson, which provides the issue can be raised for the
first time on appeal. See 281 Kan. at 541, 543-44. The State unpersuasively argues we
should not review this issue because it was not raised and ruled on below. However, even
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if a preservation exception might apply, our review of an unpreserved issue is generally
discretionary. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).
In Robinson, our Supreme Court held: "[T]he sentencing court, at the time of
initial assessment, must consider the financial resources of the defendant and the nature
of the burden that payment will impose explicitly, stating on the record how those factors
have been weighted in the court's decision." 281 Kan. at 546. Based on this holding, the
district court had a statutory duty to consider Wright's financial circumstances prior to
imposing BIDS attorney fees. Accordingly, we see no reason why Wright needed to
object when the district court had an independent duty to examine this issue. See 281
Kan. at 543-44. And even assuming our review of this issue is discretionary, we believe it
is prudent to do so here because the relevant facts are not in dispute, the issue presents a
straightforward question of law, and the matter can be conclusively disposed of without
extended discussion.
The State argues Robinson was incorrectly decided. However, we are duty-bound
to follow Kansas Supreme Court precedent unless there is some indication our Supreme
Court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144,
390 P.3d 903 (2017). We observe nothing indicating our Supreme Court is departing
from its position in Robinson. See State v. Buck-Schrag, 312 Kan. 540, 555-56, 477 P.3d
1013 (2020) (continuing to apply Robinson). Accordingly, we are unpersuaded by the
State's argument on this point.
K.S.A. 22-4513(b) provides, in relevant part: "In determining the amount and
method of payment of such [BIDS] 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." Under the strict direction of Robinson, the district court's order appears
erroneous as it did not make sufficient inquiry or explicit findings about Wright's ability
to pay before imposing BIDS attorney fees. See 281 Kan. at 543-44, 546. The only
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relevant discussion on the record was Wright's statement he knew of employers who
would hire him. However, Wright was sentenced to a term of imprisonment in excess of
two years; therefore, Wright's employment prospects following his imprisonment were
largely speculative. The mere fact Wright might at some point be able to obtain
employment was insufficient for the district court to make a proper determination about
his ability to pay because there was no evidence or information presented about his
income and expenses. Based on the limited on-record discussion, the district court could
not predict with any particular accuracy what Wright's ability to pay would be following
his release from prison, and the district court made no findings on this point. The district
court failed to make the proper inquiry and explicit findings before ordering Wright to
pay BIDS attorney fees. See 281 Kan. at 543-44, 546.
The State also argues any error in the district court's failure to consider Wright's
financial circumstances prior to imposing BIDS attorney fees was harmless. The State
asserts that a more specific statute applies and, thus, remedies any failure by the district
court to make the requisite findings. Specifically, the State points to K.S.A. 2020 Supp.
22-3717(m)(5), which requires the Prisoner Review Board to consider Wright's ability to
pay the BIDS attorney fees as ordered by the district court before they are enforced as a
condition of postrelease supervision upon his release from prison.
However, the State's argument has been explicitly rejected by several prior panels
of this court. See State v. Cummings, 45 Kan. App. 2d, 510, 512-13, 247 P.3d 220 (2011);
State v. Dennis, No. 101,313, 2010 WL 2545642, at *1 (Kan. App. 2010) (unpublished
opinion); State v. Frost, No. 98,433, 2009 WL 2371007, at *12 (Kan. App. 2009)
(unpublished opinion) (rejecting argument as applied to potential parolee); State v.
Geolas, No. 97,949, 2008 WL 307487, at *1-2 (Kan. App. 2008) (unpublished opinion).
While one panel of this court is free to disagree with another, we see no reason to
do so here. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018). We also find it
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troubling the State failed to acknowledge these decisions, much less explain why we
should adopt a different position. And without such argument and explanation from the
State, we find Cummings and the authorities it relied on well-reasoned and persuasive.
Although the Prisoner Review Board may be required to make similar findings after the
fact, "[t]he fact that the [Prisoner Review Board] may take up this issue later does not
obviate the district court's duty under Robinson." Frost, 2009 WL 2371007, at *12.
Moreover, because the district court's error affected Wright's statutory rights, we
can only hold the error harmless if the State persuades us "there is no reasonable
probability the error affected the outcome in light of the entire record." State v. Salary,
309 Kan. 479, 487, 437 P.3d 953 (2019). Because the State has not acknowledged the
considerable body of adverse authority, we find it has not met its burden to convince us
any error here was harmless. Accordingly, we reverse the district court's imposition of
BIDS attorney fees and remand to the district court to make the explicit findings required
by K.S.A. 22-4513(b) and Robinson before any such fees may be imposed. See 281 Kan.
at 548 (remedy for sentencing court's failure to follow K.S.A. 22-4513 is remand for
necessary findings to be made on record); Cummings, 45 Kan. App. 2d at 512 (same).
Reversed and remanded with directions.
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