Opinion
No. 110,408.
2014-10-10
STATE of Kansas, Appellee, v. Robert L. BLESSMAN, III, Appellant.
Appeal from Sedgwick District Court; Mark A. Vining, Judge.Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Mark A. Vining, Judge.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert Blessman appeals his sentence for involuntary manslaughter. He incorrectly claims that his sentence at the high end but within the proper grid block violates Apprendi. We lack jurisdiction to review a presumptive sentence, so we dismiss that portion of the appeal. Blessman also appeals from the fine the district court imposed for his separate DUI conviction. We agree with Blessman's contention that the district court failed to comply with K.S.A.2011 Supp. 21–6612 when it imposed a fine greater than the minimum. We vacate the fine and remand that issue to the district court.
On June 29, 2012, Blessman, operating a vehicle while he was under the influence of alcohol, crashed it, injuring himself and killing his passenger. The State charged Blessman with several offenses. He reached a plea agreement with the State. On June 25, 2013, he pled guilty under an amended information to involuntary manslaughter, a severity level 5 person felony, and class A misdemeanor DUI.
The sentencing hearing was held on August 7, 2013. For involuntary manslaughter the district court, pursuant to the parties' plea agreement, sentenced Blessman to 128 months in prison, the longest term allowed within the applicable grid block. For the DUI count the district court, again by agreement, sentenced Blessman to 12 months in jail concurrent with the manslaughter sentence. The parties had not agreed on a fine. The presentence investigation report incorrectly indicated that the minimum fine was $1,350 rather than $1,250. The State recommended what it believed was the minimum fine. Blessman did not point out the PSI error. Rather, he asked that the fine be entirely waived. The district court did not adopt either recommendation and, without explanation, fined Blessman $1,500. At the State's suggestion the court allowed Blessman to work off the fine by performing community service “while he's on postrelease.”
We consider Blessman's arguments in the order he presents them in his brief.
Did the District Court Fail to Comply with K.S.A.2011 Supp. 21–6612 when It Imposed Both a Jail Term and a FINe in Excess of the Statutory Minimum?
The parties now acknowledge that, pursuant to K.S.A.2011 Supp. 8–1567(b)(1)(B), the district court had the statutory discretion to impose a fine of $1,250 up to $1,750 in addition to the jail term it imposed. Blessman submits that the court's discretion in setting a fine within the statutory range is not unfettered. He contends, and the State agrees, that the court's discretion is limited by K.S.A.2011 Supp. 21–6612(c), which provides that “[i]n determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
Although neither party cited the case to us in the briefs, these statutory fetters are analyzed in considerable detail by our Supreme Court in State v. Copes, 290 Kan. 209, 222–23, 224 P.3d 571 (2010). The following statement from Copes, 290 Kan. at 222–23, is particularly relevant here: “Where the amount of fine is discretionary, this court has required the district [judge] to ‘state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose.’ State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988).” The Copes court made it clear that the McGlothlin directive applies to discretionary DUI fines.
The State acknowledges that the district court did not directly comply on the record with K.S.A.2011 Supp. 21–6612(c). It argues that we can infer that compliance from statements the court made when, e.g., it waived Blessman's obligation to reimburse fees incurred with the Kansas Board of Indigents' Defense Services (BIDS). The district stated that it waived the reimbursement, “[g]iven the fact that [he] will be unable to work and [will be] incarcerated .” K.S.A. 22–4513(a) directs that the sentencing court tax as costs to a convicted defendant an amount to reimburse BIDS. However, K.S.A. 22–4513(b) then provides, in language nearly identical to that in K . S.A.2011 Supp. 21–6612(c), that “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.” See State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006). We agree that the district court considered the applicable factors when it waived BIDS reimbursement under K.S.A. 22–4513(b).
The State also points out that the district court allowed Blessman to pay the fine “with community service at the rate of $5 an hour while he's on postrelease.” K.S.A.2011 Supp. 8–1567(f) gives the sentencing court an option to allow an offender to perform community service in lieu of paying the fine. In fact, the Supreme Court in Copes reversed the fine portion of Copes' DUI sentence because the district court failed to consider this option to payment of a fine under the statutory criteria. Any benefit to the State's argument concerning this purported accommodation is mitigated, though: the State asked the court to make the accommodation, and the district court simply authorized the option without further comment. We question whether this option can actually benefit Blessman. The statute states that any “community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court.” K.S.A.2011 Supp. 8–1567(f). See State v. Grebe, 46 Kan.App.2d 741, Syl. ¶ 3, 264 P.3d 511 (2011), rev. denied 294 Kan. 945 (2012).
Blessman acknowledges that the record corroborates the State's above factual contentions. But he essentially argues that the district court's accommodations are acknowledgements that he will lack resources when he is released from prison, making an increased fine burdensome. Thus, to Blessman, the court's leniency on these other financial matters contradicts rather than supports the inference the State asks us to draw, i.e., that the court complied with K.S.A.2011 Supp. 21–6612 regarding the fine.
We agree with Blessman. As the Copes court indicated, for over 25 years the Supreme Court has required that the district court state on the record that it considered the factors now contained in K.S.A.2011 Supp. 21–6612(c) before imposing both imprisonment and a fine greater than the minimum. Here Blessman was sentenced to both, so the record must confirm that the district took into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose. The record, though, only confirms that the district court considered those factors when it waived any BIDS fee reimbursement under K.S.A. 22–4513(b).
The record is silent regarding consideration of those same factors regarding the separate statutory issue of the fine. The district court failed to follow the McGlothlin directive, reiterated in Copes, to state its statutory considerations for the record. This directive does not require that the sentencing court follow a script or read the statute out loud. But, when we review the propriety of a fine greater than the minimum, we cannot determine that the court actually took into account “the financial resources of the defendant and the nature of the burden” when the district court says nothing about its considerations. This is especially true when the outcome of the factor analysis results, on one issue (BIDS), in leniency, and on the other (the fine), a greater burden. The record here does not support a finding of district court compliance with K.S.A.2011 Supp. 21–6612.
We therefore vacate the fine and remand for resentencing on only the determination of the fine and its method of payment under Copes. See, e.g., State v. Bastian, 37 Kan.App.2d 156, 164, 150 P.3d 912 (2007).
Did the District Court Violate Blessman's Constitutional Right to a Trial by Jury when It Sentenced Him to the Aggravated Sentence in the Applicable Grid Block?
Blessman next challenges his sentence for involuntary manslaughter, a severity level 5 person felony. He acknowledges that under the Kansas sentencing guidelines his criminal history score was B. The guidelines sentencing range in grid block 5–B is from 114 months to 128 months in prison. The district court, pursuant to the parties' plea agreement, imposed the highest aggravated sentence in the 5–B grid block: 128 months.
Blessman now claims that, regardless of his agreement, the sentence was illegal because it violated his Sixth and Fourteenth Amendment rights to trial by jury as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and applied in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). He argues that before the court could legally impose the highest sentence within the applicable grid block, the State was required to submit aggravating factors to a jury and prove them beyond a reasonable doubt.
Our Supreme Court has, on more than one occasion, rejected this very argument. In State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008), the court held as follows:
“Hence, we conclude K.S.A. 21–4704(e)(1) grants ajudge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant's criminal history. The judge need not conduct any fact finding or state factors on the record. Consequently, the prescribed “ ‘statutory maximum’ “ sentence described by Apprendi, 530 U.S. at 490, is the upper term in the presumptive sentencing grid block. K.S.A. 21–4704(e)(1) is constitutional under the Sixth and Fourteenth Amendments to the United States Constitution and does not violate the holdings in Apprendi or Cunningham.”
The Supreme Court dismissed Johnson's appeal for lack of jurisdiction pursuant to K.S.A. 21–4721(c)(l), which precludes appellate review of a presumptive sentence. 286 Kan. at 851–52.
Blessman argues that Johnson was wrongly decided. However, absent some indication that our Supreme Court is departing from its position in Johnson, this court is duty bound to follow that precedent. See State v. Shaw, 47 Kan.App.2d 994, 1006, 281 P.3d 576 (2012), rev. denied 291 Kan. 1255 (2013). Our Supreme Court has consistently refused to retreat from its ruling in Johnson. See, e.g., State v. Hilt, 299 Kan, 176, 201, 322 P.3d 367 (2014). Therefore, we have no jurisdiction over Blessman's challenge to his presumptive grid block sentence. This portion of the appeal is dismissed. We do not, then, need to conduct a jurisdictional analysis under K.S.A.2011 Supp. 21–6280(c)(2), a provision which precludes our review of an agreed upon sentence approved on the record by the sentencing court.
The DUI fine is vacated, and the fine issues are remanded with instructions. Appeal of the involuntary manslaughter sentence is dismissed.