State v. Boyd ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,905
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THOMAS LEE BOYD,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Submitted without oral
argument. Opinion filed December 29, 2023. Affirmed.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Andrew R. Davidson, deputy district attorney, Thomas R. Stanton, district attorney, and Kris W.
Kobach, attorney general, for appellee.
Before HILL, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: After pleading guilty to two counts of distribution of
methamphetamine, Boyd sought to withdraw his plea which the district court denied.
Boyd does not appeal the district court's denial of his motion to withdraw but claims the
district court wrongly ordered him to pay lab fees to the Kansas Bureau of Investigation
(KBI). The record demonstrates that Boyd was convicted of drug-related offenses, the
KBI lab conducted testing to investigate those convictions, and the district court correctly
ordered Boyd to pay $800 in KBI lab fees. Affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND
Reno County police officers set up controlled buys of methamphetamine from
Boyd on three different occasions in December 2020. On February 24, 2021, the KBI
tested and detected methamphetamine in each of the three substances obtained from the
controlled buys. On May 5, 2021, the State charged Boyd with three counts of
distribution of methamphetamine in violation of K.S.A. 2020 Supp. 21-1507 based on the
three controlled buys.
As part of a plea agreement, the State dismissed a separate pending case and one
of the counts of distribution of methamphetamine in this case and amended the remaining
two distribution counts to severity level three drug felonies. Boyd pled guilty to both
amended counts of distribution of methamphetamine on July 22, 2021. Shortly thereafter,
and before sentencing, Boyd's counsel moved to withdraw Boyd's plea. On September 17,
2021, Boyd filed a separate pro se motion to withdraw his plea in which he also requested
new counsel. Boyd's new counsel filed a third motion to withdraw Boyd's plea on
September 20, 2021. After an evidentiary hearing on November 30, 2021, the district
court denied Boyd's motions to withdraw his plea.
According to the presentence investigation (PSI) report, Boyd had a criminal
history score of A. The current offense portion of the PSI report also included that Boyd
owed, among other costs, $800 for KBI lab analysis fees. The district court sentenced
Boyd to a 78-month presumptive prison sentence and ordered Boyd to pay the $800 KBI
lab fee and other court costs.
Boyd appealed, alleging the district court erred in denying his motion to withdraw
his plea and assessing the KBI lab analysis fee. Since filing his appeal, Boyd withdrew
his claim that the district court erred in denying his motion to withdraw and presently
pursues only his claim that the district court erred in assessing the KBI lab fee to him.
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DISCUSSION
Boyd's only argument on appeal is that the district court erred in assessing and
ordering him to pay the $800 KBI lab fee. Boyd contends that the State failed to
demonstrate that the KBI performed any lab tests and thus the district court erred in
assessing the fee. Before addressing Boyd's claim, this court must first determine if his
claim is preserved for appeal.
Boyd failed to object to the district court's order that he pay the $800 KBI lab fee
at the sentencing hearing. Generally, objections not raised before the district court cannot
be raised for the first time on appeal. See State v. Green, 315 Kan. 178, 182, 505 P.3d
377 (2022). However, this court recognizes several exceptions to that general prohibition,
including when the issue raised for the first time on appeal involves only a question of
law that is finally determinative of the case and arises on proved or admitted facts. State
v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). Additionally, Kansas Supreme Court
Rules require an appellant to explain why an issue that was not raised before the district
court should be considered for the first time on appeal. Supreme Court Rule 6.02(a)(5)
(2023 Kan. S. Ct. R. at 36).
Boyd argues that his claim fee should be considered for the first time on appeal
because he raises a purely legal question arising from proved or undisputed facts. The
State argues that Boyd's claim is not based on proved or admitted facts because Boyd
contends the State failed to prove the KBI performed testing, but the State points to the
KBI lab report included in the appellate record to refute that claim. The timing of Boyd's
objection is important because his failure to object to the district court meant the State
had no reason to present additional evidence of the KBI lab testing to the district court. In
other words, because Boyd failed to object the State was unaware that Boyd questioned
the testing and thus had no reason to present additional evidence of the testing conducted.
By failing to object to the district court, Boyd seeks to use the alleged absence of such
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evidence on appeal to demonstrate error. However, Boyd's failure to object does not
prevent this court's review because the record on appeal does not contain evidentiary
conflicts.
When an appellant—as here—seeks review of an unpreserved claim by arguing it
is a legal issue based on proven facts, the appellate court has discretion to review that
claim so long as the resolution would not "require the court to make factual findings such
as credibility determinations, resolving evidentiary conflicts, and reweighing evidence."
Allen, 314 Kan. at 284. Although Boyd failed to raise his argument to the district court,
the record on appeal clearly contains evidence that the KBI conducted lab tests to
investigate Boyd's convictions. So, although the parties appear to make contradictory
allegations—the facts are not actually in dispute.
A party cannot create a factual dispute by merely asserting contradictory
allegations or disputing a clearly established fact. See, e.g., Korytkowski v. City of
Ottawa, 283 Kan. 122, 132, 152 P.3d 53 (2007) (finding that plaintiffs' unsupported,
conclusory allegations did not create a factual dispute preventing summary judgment).
The record on appeal contains the KBI lab report clearly demonstrating that the KBI
conducted and charged for lab testing. Moreover, the current offense portion of the PSI
report, which was presented to and reviewed by the district court, states that Boyd owed
$800 for KBI lab fees. Boyd's claim is a question of law that is finally determinative of
the issue and arises on undisputed facts, which meets an exception permitting this court's
review for the first time on appeal.
Boyd's claims require this court to interpret a statute—K.S.A. 28-176—which
presents a question of law subject to unlimited review. State v. Stoll, 312 Kan. 726, 736,
480 P.3d 158 (2021). This statute provides that a sentencing court shall order a person
convicted or adjudicated for certain offenses "to pay a separate court cost of $400 for
every individual offense if forensic science or laboratory services . . . are provided, in
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connection with the investigation," by the KBI. K.S.A. 28-176(a). When a defendant is
convicted of multiple counts, the Kansas Supreme Court has held that K.S.A. 28-176
authorizes the sentencing court to order the defendant to pay that KBI lab fee for each
count. State v. Goeller, 276 Kan. 578, 584, 77 P.3d 1272 (2003), overruled on other
grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).
Boyd argues only that the State failed to present evidence that the KBI performed
testing, and thus the district court was not permitted to impose a fee pursuant to K.S.A.
28-176. As Boyd correctly points out, a panel of this court found that an earlier
counterpart to K.S.A. 28-176 "only allows for fees when 'laboratory services . . . are
provided.'" State v. Peeples, No. 120,010, 2020 WL 110868, at *7 (Kan. App. 2020)
(unpublished opinion). Unlike the facts here, the State originally charged Peeples with
various drug and nondrug offenses, but later dismissed the drug charges and
"acknowledge[d] that the KBI lab fee was not ordered at the time of sentencing" and that
any error adding the charges in the journal entry could be corrected. 2020 WL 110868, at
*7. Relevant here, the Peeples panel held that the plain language of the statute required
an assessment of the KBI lab fee when lab services were rendered for the convicted
offenses. 2020 WL 110868, at *7.
Unlike Peeples, Boyd pleaded guilty to two charges for distribution of
methamphetamine for which the district court was required to assess a fee for the KBI lab
services pursuant to K.S.A. 28-176. At the plea hearing, the district court asked Boyd if
he "in fact participate[d] in the distribution of some methamphetamine" on the 11th and
15th of December in the amount of "somewhere between a gram and three and a half
grams" to which Boyd said, "Yes, sir." As a part of his plea agreement, Boyd also agreed
to pay costs associated with the case, although those costs were not specified at the plea
hearing. While it does not appear that at the time of sentencing Boyd requested a copy of
the KBI lab report demonstrating the test results, his choice to avoid evidence of the
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testing does not create a factual dispute or mean that the State failed to demonstrate the
testing.
The PSI report stated that Boyd owed $800 for KBI lab analysis fees. The State
argues that it is standard practice in felony sentencing cases in Reno County for the State
to provide Court Services with a copy of the KBI lab test results in preparation of the PSI
report. After receiving the PSI report, Boyd never requested any information or evidence
regarding the KBI lab tests or results.
Despite Boyd's failure to object to the district court about the KBI fee assessment,
the record on appeal contains the forensic laboratory reports from the KBI and the PSI
report containing the fee assessment. There is no reason to believe the KBI reports
contained in the record differ from the reports provided to Court Services for preparation
of the PSI report. The KBI lab reports contain testing methodologies, weight, and results
for three separate substances tested on February 24, 2021, identified as methamphetamine
through the testing.
Pursuant to a plea agreement, the State dismissed one count of distribution of
methamphetamine, and Boyd pled guilty to the remaining two amended counts of
distribution of methamphetamine. Unlike the facts in Peeples, here the defendant was
convicted of drug-related offenses, the PSI report submitted to the district court
demonstrated that the KBI lab conducted testing for which the defendant should be
charged, and the record on appeal contains the KBI lab reports evidencing the testing that
occurred.
CONCLUSION
The record on appeal clearly demonstrates that the KBI provided laboratory
services related to investigating Boyd's charged offenses. Boyd pled guilty and was
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convicted of two drug-related offenses for which the evidence shows the KBI conducted
lab testing. Therefore, pursuant to K.S.A. 28-176, the district court correctly ordered
Boyd to pay $800 in KBI lab fees.
Affirmed.
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