State v. Swink

NOT DESIGNATED FOR PUBLICATION
No. 122,157
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ASHLEE NICOLE SWINK,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed August 7, 2020.
Affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and WARNER, JJ.
PER CURIAM: Ashlee Nicole Swink pled guilty to one count of felony theft and
one count of felony counterfeiting currency. The district court sentenced Swink to 29
months in prison but granted a downward dispositional departure to a 24-month probation
term. After a colloquy between the district court and Swink, she was ordered to pay $825
in Board of Indigents' Defense Services (BIDS) attorney fees as a condition of her
probation.
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Swink raises two issues on appeal. First, she contends the district court erred in
imposing BIDS attorney fees without engaging in the analysis required by K.S.A. 22-
4513 and articulated in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). Second,
for the first time on appeal, Swink asserts the district court's findings regarding her prior
convictions which enhanced her sentence violated her right to a jury trial under § 5 of the
Kansas Constitution Bill of Rights.
Upon our review, we hold the district court made a sufficient inquiry and finding
regarding Swink's financial resources and the nature of the burden that payment of BIDS
attorney fees would have on her. Regarding the second issue relating to § 5 of our Kansas
Constitution Bill of Rights, we find this issue was not preserved in the district court, and
Swink has failed to show an exception applies to justify our review for the first time on
appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2019, Swink was charged with one count of felony theft, two counts
of felony counterfeiting currency, one count of felony possession of a controlled
substance, four counts of misdemeanor theft, one count of misdemeanor possession of
marijuana, and one count of misdemeanor possession of drug paraphernalia. The charges
were the result of a Great Bend Police Department investigation into the theft of a rental
car from Detroit, Michigan.
On June 27, 2019, in keeping with a plea agreement, Swink pled guilty to one
count of felony theft and one count of felony counterfeiting currency. The remaining
charges were dismissed. The district court accepted Swink's pleas and found her guilty.
At the time Swink entered her pleas, the presentence investigation (PSI) report
indicated that she had two prior felony convictions in California that were comparable to
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Kansas offenses and were scored as person felonies. This calculation resulted in a
criminal history score of B. Before sentencing, Swink objected to the criminal history
score, arguing that the California convictions should not have been scored as person
felonies in Kansas. Swink also filed a motion for a dispositional departure to probation.
At sentencing on October 11, 2019, the district court considered the parties'
arguments relating to Swink's criminal history score and determined that the score of B
was correct. Swink was sentenced to concurrent sentences of 29 months' imprisonment
for felony theft and 8 months' imprisonment for counterfeiting. The district court granted
Swink's motion for a dispositional departure and imposed a 24-month probation term.
The district court ordered that Swink reimburse $825 in BIDS attorney fees as a condition
of probation.
In considering reimbursement of BIDS attorney fees, the district court engaged in
the following discussion with Swink:
"THE COURT: Let me ask you then, Ms. Swink, do you think you have the
ability to pay back at least up to [$]825 throughout the term of your probation?
"THE DEFENDANT: Throughout the 24 months?
"THE COURT: Uh-huh.
"THE DEFENDANT: Yeah, I mean, I can make payments on it.
"THE COURT: Okay. Well, all of your fee[s]—everything I have assessed
today, including the attorney's fees, will go into kind of a big pot. Then you're going to
end up trying to—probation is going to give you some kind of a plan so that you can pay
that off.
"THE DEFENDANT: Okay.
"THE COURT: Within the term of your probation. So that's one of the things
that they will review with you. But do you have the ability to work?
"THE DEFENDANT: Yes, ma'am.
"THE COURT: Okay.
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"THE DEFENDANT: I mean, I'm seven months pregnant right now, so having a
baby soon, but—so I'm going to be taking a few months off when I have my child.
"THE COURT: Right.
"THE DEFENDANT: Other than that, yeah, I work 40 hours a week.
"THE COURT: Okay. All right. Then I will go ahead and assess reimbursement
for the attorney's fees up to that cap. . . ."
Swink appeals.
REIMBURSEMENT OF BIDS ATTORNEY FEES
Swink contends that in imposing reimbursement of the BIDS attorney fees, the
district court failed to meaningfully consider her financial resources or the nature of the
burden repaying those fees would have on her. She also claims the district court failed to
indicate how it weighed the reimbursement matter. She asks us to reverse the ruling,
vacate the BIDS order, and remand to the district court for reconsideration. On the other
hand, the State argues that the district court engaged in a sufficient colloquy to meet the
requirements of K.S.A. 22-4513 and Robinson. This issue raises a question of law over
which our court has unlimited review. State v. Ayers, 309 Kan. 162, 163, 432 P.3d 663
(2019).
The relevant Kansas statute provides: "In determining the amount and method of
payment of [BIDS fees], 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." K.S.A.
22-4513(b). The district court must weigh a defendant's financial resources and the
burden of the fee on the record at the time the fees are assessed. State v. Copes, 290 Kan.
209, Syl. ¶ 2, 224 P.3d 571 (2010); Robinson, 281 Kan. at 546.
As shown by the colloquy between the district court and Swink, the court
specifically inquired into Swink's ability to reimburse the BIDS attorney fees by making
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monthly payments over a two-year probation term. In response, Swink acknowledged
that she had the financial ability to reimburse the BIDS fees by making periodic
payments over the term of her probation. The district court explained to Swink that these
fees would be an additional burden to her given the other financial obligations of
probation. In response, Swink acknowledged that she was willing and able to work in
order to reimburse the BIDS attorney fees. In fact, she was currently working 40 hours a
week while pregnant. In this regard, Swink explained to the district court that she was
going to miss work for a few months after the birth of her baby but then resume regular
employment. Swink's attorney confirmed that she was currently residing in the
community and was "gainfully employed."
In the colloquy with Swink, the district court weighed her financial resources—
best exemplified by her current full-time, gainful employment—with an explanation of
the burdens associated with not only the reimbursement of BIDS attorney fees but other
costs of probation as well. In response to the district court's questions, Swink repeatedly
assured the district court that she was willing and capable of reimbursing the BIDS
attorney fees, taking into consideration her pregnancy. All things considered, we are
persuaded this colloquy was sufficient for purposes of K.S.A. 22-4513 and Robinson. We
find no reversible error.
CONSTITUTIONALITY OF JUDICIAL FACT-FINDING AT SENTENCING
Next, Swink contends, for the first time on appeal, that the district court's use of
judicial findings of prior convictions to sentence her under the Kansas Sentencing
Guidelines Act (KSGA) violates § 5 of the Kansas Constitution Bill of Rights. In
particular, she argues that "[p]rior to Kansas' statehood, American common law required
any fact which increased the permissive penalty for a crime—inclusive of an offender's
prior criminal convictions—to be proven to a jury beyond a reasonable doubt." As a
result, she argues that "the sentencing scheme set out by the KSGA—in which judicial
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findings of criminal history elevate an accused's presumptive prison sentence—is
unconstitutional."
For its part, the State objects to our consideration of this issue because it was not
raised in the district court and, therefore, was not preserved for appeal. Additionally, the
State notes that our court has considered Swink's constitutional argument previously and
ruled against her legal position.
Swink concedes that she failed to raise this constitutional claim of error at the
district court level. Generally, issues not raised before the district court may not be raised
on appeal. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). However, there are
exceptions to this rule. An appellate court may consider an issue not raised in the district
court if: (1) the newly asserted theory involves only a question of law arising on proved
or admitted facts and is finally determinative of the case, (2) consideration of the theory
is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3)
the district court's judgment was right for the wrong reason. State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014). Swink claims the first and second exceptions apply in
this case to justify appellate review. We will review the exceptions individually.
Swink asserts the first exception applies because she is raising a claim that the
KSGA is facially unconstitutional, regardless of the facts of her sentencing, and,
therefore, she presents a purely legal challenge. Assuming this is true, however, Swink
does not favor us with an explanation of how our holding declaring the KSGA
unconstitutional would be finally determinative of the case. See 299 Kan. at 493. As the
State observes, "if this Court agreed with the defendant, her criminal history would be
ripe for presentation to a jury on remand." The State makes a good point.
Moreover, Swink specifically asks our court to alternatively "remand Ms. Swink's
case for resentencing with an 'I' criminal history score, or for a jury trial on the existence
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of her prior convictions." As Swink's claim for relief makes clear, should she prevail on
appeal of this constitutional issue, the case would not be finally determined but remanded
for further sentencing proceedings. These proceedings could involve the exclusion of
Swink's prior crimes or impaneling a jury to determine her prior crimes at sentencing. In
short, Swink has not shown that our consideration of this constitutional issue would
finally determine the case. The first exception does not apply.
Regarding the second exception, Swink asserts that because the right to trial is a
basic and fundamental feature of American jurisprudence, appellate review is necessary
"to guard against infringements to a fundamental right."
While we share Swink's belief in the importance of the constitutional right to a fair
trial, we do not agree that it is necessary for us to review her claim because our court has
extensively addressed and decided this issue adversely to Swink's position on numerous
occasions. Indeed, we have consistently found that the KSGA—more specifically,
judicial prior-conviction findings—does not violate § 5 of the Kansas Constitution Bill of
Rights. See, e.g., State v. Spencer, No. 120,902, 2020 WL 2296953, at *5-6 (Kan. App.
2020) (unpublished opinion) (rejecting an identical challenge and specifically finding that
defendant waived his right to a jury trial and thus could not argue his right to a jury trial
was violated), petition for rev. filed May 29, 2020; State v. Billoups, No. 120,040, 2020
WL 1969356, at *17-20 (Kan. App. 2020) (unpublished opinion) (rejecting an identical
challenge), petition for rev. filed May 20, 2020; State v. Brown, No. 120,590, 2020 WL
1897361, at *7-8 (Kan. App. 2020) (unpublished opinion) (rejecting an identical
challenge), petition for rev. filed May 18, 2020; State v. Albano, 120,767, 2020 WL
1814326, at *6-11 (Kan. App. 2020) (unpublished opinion) (considering at length an
identical challenge under section 5 and finding that because the right to a jury trial under
section 5 is not broader than the federal right to a jury trial, KSGA does not run afoul of
section 5), petition for rev. filed May 6, 2020.
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While Swink contests our court's adverse holdings, her arguments regarding this
constitutional issue are mirror-images of arguments our court has previously considered
and resolved against other criminal defendants who have advocated a similar legal
position. As a result, we are not persuaded that yet another review of this issue "is
necessary to serve the ends of justice or to prevent the denial of fundamental rights." See
Phillips, 299 Kan. at 493.
Of course, even if an exception would support a decision to review a new claim on
appeal, we have no obligation to do so. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d
879 (2017). Still, under these circumstances, we conclude that Swink has failed to show
that either exception justifies our review of this constitutional issue. Accordingly, we
invoke the general rule that constitutional issues may not be raised for the first time on
appeal and decline review. See Daniel, 307 Kan. at 430.
Affirmed.
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