Opinion
No. 111,266.
2015-02-6
STATE of Kansas, Appellee, v. Brian Christopher BELL, Appellant.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Amanda G. Voth, assistant solicitor general, of office of Kansas Attorney General, for appellee.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Amanda G. Voth, assistant solicitor general, of office of Kansas Attorney General, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Brian Christopher Bell appeals his sentence for two counts of mistreatment of a dependent adult. Bell argues the district court erred in ordering him to pay the Board of Indigents' Defense Services' attorney fees and finding his criminal history score to be E. We vacate the attorney fee order because the court failed to take into account Bell's ability to pay those fees before it entered the order. All other issues are affirmed.
Bell entered a plea of no contest to two counts of mistreatment of a dependent adult in violation of K.S.A.2011 Supp. 21–5417(a)(3). The district court assigned Bell a criminal history score of E based on a presentence investigation report. The district court also ordered Bell to reimburse BIDS $600 for his attorney fees.
Bell argues the district court erred in assessing BIDS fees without inquiring into his ability to pay or the burden it would impose on him, contrary to K.S.A. 22–4513(b). The State agrees.
K.S.A. 22–4513(b) requires: “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.” Our Supreme Court has interpreted the language in K.S.A. 22–4513(b) to be mandatory: “[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 weighed.” State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006).
Our review of the sentencing transcript indicates the district court judge asked Bell's attorney what his fees were and then assessed those fees to Bell. The district court did not take into account Bell's financial resources or consider the nature of the burden, if any, that payment of the fees would impose on Bell. The proper remedy for this oversight is to vacate that portion of Bell's sentence and remand for further proceedings. See Robinson, 281 Kan. at 548, 132 P.3d 934.
In disputing his criminal history score of E, Bell argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it used his prior convictions to enhance his sentence without proving those convictions to a jury beyond a reasonable doubt, contrary to the United States Supreme Court's guidance in Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
The Kansas Supreme Court has consistently rejected this argument. See, e.g., State v. Snellings, 294 Kan. 149, 166–67, 273 P.3d 739 (2012). In Snellings, the court held that the use of prior convictions for sentencing enhancement is constitutional.
We are duty bound to follow the precedent set by our Supreme Court unless there is some indication it intends to depart from its prior position. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). Bell points this court to no such indication. Instead, he acknowledges this issue has been adversely decided but includes it to preserve it for federal review. We find no error in his criminal history score.
We vacate the district court's assessment of BIDS attorney fees and remand with directions to the district court to consider Bell's financial resources and the nature of the burden that payment of BIDS attorney fees would impose. All other issues are affirmed.
Affirmed in part, vacated in part, and remanded with directions.