Opinion
No. 105,982.
2013-03-15
STATE of Kansas, Appellee, v. Joseph M. BUSER, Appellant.
Appeal from Mitchell District Court; Kim W. Cudney, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Mark J. Noah, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Mitchell District Court; Kim W. Cudney, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Mark J. Noah, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joseph M. Buser raises three issues in this direct appeal from the sentence imposed upon his guilty plea to indecent liberties with a child.
First, Buser asserts that under the specific circumstances of his case, the court's order for lifetime postrelease supervision violates the provisions against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Because we hold that Buser failed to preserve this issue by assuring that the district court made factual findings necessary for meaningful appellate review, his claim fails.
Second, Buser argues, and the State concedes, that the district court erred in considering his prior juvenile adjudication for aggravated indecent liberties as a first conviction for purposes of his registration requirements under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. Buser argues he must register for 10 years because that was the required registration period when he committed his crime and was sentenced. But because this court has already held that KORA amendments apply retroactively, we agree with the State's position that Buser must register for 25 years under the current law.
Third, Buser complains that a set 30% collection fee for unpaid court costs is not statutorily authorized. On the contrary, this collection fee, mandated by a local administrative rule, is statutorily authorized so this claim also fails.
Factual and Procedural History
In February 2009, 21–year–old Joseph Buser began dating 15–year–old S.C., and they became sexually active 2 months later. This relationship developed less than a year after Buser was released from serving a 34–month commitment to juvenile detention, which resulted from his adjudication in November 2005 for aggravated indecent liberties against a 10–year–old girl.
As a result of his more recent relationship with S.C., the State eventually charged Buser with six counts of aggravated indecent liberties with a child, a severity level 3 felony in violation of K.S.A. 21–3504(a)(l).
Buser eventually reached a plea agreement with the State. Under that agreement, Buser pled guilty to a single count of indecent liberties with a child. In return, the State dismissed the remaining five charges and a separate case pending against Buser, the details of which are unknown. Buser acknowledged in the written plea agreement that he had been advised that he “may be subject to post release supervision for life.” The district court accepted Buser's plea and found him guilty of indecent liberties with a child.
Buser filed several motions prior to his sentencing in an attempt to mitigate the consequence of his plea. The first, a motion to withdraw his plea was later withdrawn after a hearing. The remaining two motions asked the court (1) to impose a downward dispositional departure sentence and (2) to impose less than the statutorily-mandated lifetime term of postrelease supervision because it would amount to cruel and/or unusual punishment under the circumstances. At a hearing on those two motions, both Buser and his therapist testified. After hearing arguments, the district court denied both of Buser's motions, primarily because this was not Buser's first offense. The court then imposed a standard presumptive sentence of 52 months in prison with lifetime postrelease supervision. Additional details of the proceedings before the district court will be discussed where necessary below in analyzing the three issues Buser raises in this timely appeal from his sentence. We proceed to examine those issues.
Buser's Challenge To The Constitutionality Of Lifetime Postrelease Supervision Fails Due To The Lack Of Adequate Findings By The District Court
In his first issue on appeal, Buser challenges the constitutionality of the district court's order of lifetime postrelease supervision. The State responds that the postrelease supervision period is constitutional.
Before discussing this court's standard of review, we review the statute governing postrelease supervision and the constitutional provisions under which Buser challenges that statute.
Lifetime postrelease supervision is statutorily mandated here.
The district court ordered Buser to a term of lifetime postrelease supervision under the authority of K.S.A.2009 Supp. 22–3717(d)(l)(G). When Buser committed his crime, that statute provided, as it still does today, that “persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.” K.S.A.2009 Supp. 22–3717(d)(1)(G); cf. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010) (recognizing fundamental rule in Kansas law that defendant is sentenced based on sentencing laws in effect when crime was committed). It is undisputed here that Buser's crime of conviction, indecent liberties with a child in violation of K.S.A. 21–3503(a), is statutorily defined as a “sexually violent crime.” K.S.A.2009 Supp. 22–3717(d)(1)(G)(2)(B).
Buser claims lifetime postrelease under the circumstances of his case constitutes the cruel and unusual punishment prohibited by our federal and state constitutions.
The parties' dispute here centers on whether this mandated lifetime postrelease period constitutes cruel and unusual punishment as proscribed by our federal and state constitutions. Specifically, the Eighth Amendment to the United States Constitution, which the Fourteenth Amendment makes applicable to the states, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” See Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (recognizing “[t]he [Eighth] Amendment proscribes, ‘all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.’ [Citation omitted.]”). Likewise, § 9 of the Kansas Constitution Bill of Rights states, in pertinent part: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
The United States Supreme Court has interpreted the Eighth Amendment and held that “[e]mbodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ [Citation omitted.]” Graham v. Florida, 560 U.S. ––––, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Similarly, the Kansas Supreme Court has interpreted § 9 of the Kansas Constitution Bill of Rights to allow a challenge to an “excessive or disproportionate sentence.” State v. McDaniel, 228 Kan. 172, 185, 612 P.2d 1231 (1980).
The Kansas Supreme Court has described two general types or classifications of proportionality challenges: (1) case-specific, and (2) categorical. As evidenced by its description, the first type of proportionality challenge focuses on the circumstances in a particular case. The second, categorical approach, “comprises cases in which the court implements the proportionality standard by certain categorical restrictions,” i.e., the nature of the offense or the characteristics of the offender. State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P.3d 1203 (2010). The State suggests that Buser is raising both a case-specific and categorical challenge to lifetime postrelease supervision. But a careful review of Buser's brief reveals that he raises only a case-specific challenge. That is, he argues that imposing a postrelease supervision term in and of itself is not a cruel and unusual method of punishment, but it is constitutionally impermissible because it is applied in a disproportionate fashion under the circumstances of his case.
This court applies a bifurcated standard of review.
The appellate standard of review is important to the ultimate resolution of this issue. As explained in more detail below, a legal determination of whether a sentence is cruel or unusual under the specific circumstances of a case requires a district court to make certain factual determinations and then decide whether those facts entitle the defendant to relief as a matter of law. An appellate court then applies a bifurcated standard in reviewing a challenge to this district court's decision, i.e., an appellate court reviews, but does not reweigh all of the evidence “to determine whether it is sufficient to support the district court's factual findings” and then conducts de novo, or unlimited review of the court's legal conclusions drawn from those facts. State v. Ross, 295 Kan. 424, 425–26, 284 P.3d 309 (2012).
Buser raises only a challenge under the Kansas Constitution.
Our Supreme Court has made it clear that a case-specific challenge to the proportionality of a sentence under § 9 of the Kansas Constitution Bill of Rights such as Buser raises here is subject to the three-part test set forth in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978) (the Freeman test). Mossman, 294 Kan. 901, Syl. ¶ 4, 281 P.3d 153 (2012). Under the Freeman test, a court must consider:
“(] ) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
As our Supreme Court has further explained in discussing application of this Freeman test:
“No one factor controls. ‘Ultimately, one consideration may weigh so heavily that it directs the final conclusion,’ but ‘consideration should be given to each prong of the test.’ [Citation omitted.] Particularly where the focus of an argument is proportionality,
... ‘the factual aspects are a necessary part of the overall analysis.’ [Citation omitted.] Further, ... the use of these factors is disfavored if analyzing any aspect of a criminal sentence other than its length.” State v. Cameron, 294 Kan. 884, 890, 281 P.3d 143 (2012).
The Freeman test is substantially similar to the analytical framework applied under the Eighth Amendment cruel and unusual punishment cases cited above. See Gomez, 290 Kan. 858, Syl. ¶¶ 5–6. Buser references the Eighth Amendment in the subject heading of this first issue and briefly discusses these rules governing analysis of the issue under the Eighth Amendment. But he limits his analysis to the Freeman factors. Our courts usually consider claims mentioned only in passing but not argued to be abandoned on appeal. See State v. Holman, 295 Kan. 116, 139, 284 P.3d 251 (2012).
The district court factual findings are inadequate for this court to review this issue.
This court cannot, however, even reach the issue of whether it should analyze this issue under both the federal and state constitutions because the above-cited tests for both involve inherently factual inquiries, and a lack of adequate factual findings by the district court precludes this court's review. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (acknowledging fact-specific nature of federal analysis); State v. Seward, 289 Kan. 715, 719, 217 P.3d 443 (2009) (quoting State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 [2008] ) (discussing fact-dependent inquiry under first factor of the Freeman test). Buser did fully brief this issue in a written motion filed well in advance of the sentencing hearing. He also presented evidence and oral argument on the issue of the constitutionality of lifetime postrelease supervision during the sentencing hearing, at least under the Freeman factors. Yet, in denying the motion, the only factual findings made by the district court were as follows:
“With regard to the post-release supervision for a lifetime, the Court too has researched this matter. Your counsel has argued that this is cruel and unusual punishment. There is no authority that the Court can find for that finding. This is because you have engaged in a sexually violent crime in which indecent liberties with a child is considered a sexually violent crime, and once again, this is an issue in which the Court, in weighing your constitutional rights, must also protect the rights of the individuals who you are living with in the community. And because you have reoffended, the Court must find that the post-release, as statutorily required, will be imposed in this matter,
“The Court does not find that this is cruel and unusual punishment due to looking at the nature of the offense.”
Although neither party challenges the sufficiency of these findings, a cursory review of Buser's arguments on appeal demonstrates why they are inadequate to permit this court's review of Buser's case-specific challenge under either proportionality test. For example, Buser states: that his sexual acts with his 15–year–old victim were in the context of a “consensual, dating situation”; that he was not violent with her, did not threaten her, or did not otherwise place her in fear of losing her life; that “absolutely no injury resulted”; that he admitted to the crime; that he has made significant progress in therapy towards learning what was inappropriate about his prior behavior and how to prevent reoffending; that his therapist did not feel he was a pedophile or at risk to reoffend; and that, while he does have a prior juvenile adjudication for a similar offense, “considering the slipshod way his treatment was handled in the first case, he is not as culpable as a reoffender who was given proper treatment upon the first offense.” The district court seems to have simply found lifetime postrelease is not unconstitutional simply because it is mandated by statute. This ignores the basis of Buser's argument. Without the benefit of findings by the district court, whether for or against Buser, this court cannot simply cannot adequately analyze this issue.
Buser's failure to ensure adequate factual findings precludes this court's review.
Because of this failing by the district court, this court could remand for the district court to make sufficient factual findings based on the evidence already presented by the parties. Our Supreme Court took this approach in Seward, 289 Kan. at 721. But in Seward, the court also cautioned that the remand in that case was an “exceptional” circumstance. 289 Kan. at 721. Thus, Seward announced that “a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under [Supreme Court] Rule 165 , if necessary.” 289 Kan. at 721. Our Supreme Court applied this same reasoning in ordering remand for additional findings in Berriozabal, 291 Kan. at 594, and State v. Raskie, 293 Kan. 906, 923–24, 269 P.3d 1268 (2012). But it did so only after finding that the district court's decisions on review in those cases preceded the court's holding in Seward, so the defendant's duty under Rule 165 was unclear at the time. See 293 Kan. at 925.
Here, on the other hand, the district court heard and rejected Buser's challenge to lifetime postrelease supervision in September 2010, almost a year after the court handed down its decision in Seward. The record does not reveal that Buser ever moved to invoke the district court's duties under Rule 165(a) to make findings of facts and conclusions of law.
Accordingly, in light of our Supreme Court's holdings in Seward, Berriozabal, and Raskie, we must conclude that Buser failed to preserve his constitutional challenges to lifetime postrelease supervision because he failed to ensure the trial court issued adequate findings under Rule 165 to permit this court's review of this issue. See, e.g., State v. Roberts, 293 Kan. 1093, 1095–97, 272 P.3d 24 (2012). To hold otherwise would require this court to disregard the clear mandate of those decisions that places the duty on defendants to seek the necessary factual findings to permit meaningful appellate review of claims that punishment constitutes cruel and/or unusual punishment.
The District Court Erred In Ordering Buser To Register For His Lifetime Under The KORA
Buser's second issue on appeal concerns the district court's separate order that, once he is released from prison, he must register as a sex offender under the KORA for his lifetime. That order apparently stemmed from the fact that this was Buser's second conviction of a sexually violent crime since he had a prior juvenile adjudication for aggravated indecent liberties. See K.S.A.2012 Supp. 22–4906 (required periods of registration under KORA for sexually violent crimes depends on whether “conviction” is first or subsequent). According to Buser, this was error because the court was statutorily precluded from considering his prior juvenile adjudication as a “conviction.”
Standard of review
Because resolution of this issue requires statutory interpretation, which is a question of law, this court has unlimited review. See State v. Jackson, 291 Kan. 34, 37–38, 238 P.3d 246 (2010).
The State concedes error.
The State concedes that Buser was not subject to a lifetime sex offender registration requirement because Buser's prior juvenile adjudication for aggravated indecent liberties was not considered a “conviction” under KORA. See State v. Reese, 42 Kan.App.2d 388, Syl., 212 P.3d 260 (2009) (holding, “[b]ecause the legislature knows the distinction between juvenile adjudications and adult convictions and has set up a separate registration protocol for juvenile offenders, a juvenile adjudication does not qualify as a conviction for purposes of K.S.A. 22–4906[a]”); accord Jackson, 291 Kan. 34, Syl. ¶ 3 (finding “legislature has retained a distinction between prosecution as an adult and prosecution as an extended jurisdiction juvenile offender. This distinction applies to sentences and to incidents of sentencing.”); State v. Boyer, 289 Kan. 108, Syl. ¶ 3, 209 P.3d 705 (2009) (holding juvenile adjudication not included as conviction for purposes of persistent sex offender status under K.S.A. 21–4704[j] ).
The parties dispute the appropriate remedy on remand.
The parties disagree, however, about the proper remedy on remand, i.e., how long Buser should have to register under KORA. Their divergent positions stem from statutory amendments to KORA between the time of sentencing and their briefing on appeal. Both when Buser committed his crime in 2009 and when he was sentenced in 2010, K.S.A. 22–4906 and K.S.A.2010 Supp. 22–4906 required registration for a first-time conviction of a sexually violent crime such as indecent liberties with a child for a period of 10 years. By the time the parties briefed this issue, however, our legislature amended the registration term to 25 years for a first-time conviction of indecent liberties with a child. K.S.A.2011 Supp. 22–4906(b)(l).
The State advocates retroactive application of the amendment to KORA requiring registration for 25 years.
The State summarily argues that this amendment applies retroactively to conclude Buser must register under KORA for 25 years. In support, the State cites this court's decision in State v. Evans, 44 Kan.App.2d 945, Syl. ¶ 5, 242 P.3d 220 (2010). In Evans, a panel of our court was asked to decide whether an amendment to KORA could be retroactively applied without violating the Ex Post Facto Clause of the United States Constitution. In deciding that it could, the Evans panel cited to our Supreme Court's holding in State v. Myers, 260 Kan. 669, 696, 923 P.2d 1024 (1996), cert. denied521 U.S. 1118 (1997), that the offender-registration provisions are not part of the punishment for the crime. Thus, the Evans panel held that retroactive application of changes in the registration requirements does not violate the Ex Post Facto Clause. 44 Kan.App.2d at 948–49.
Buser argues retroactive application of amendments to KORA violates the Ex Post Facto Clause, so he can only be ordered to register for 10 years,
Buser argues 10 years is the proper registration duration because the retroactive application of KORA advocated by the State violates the Ex Post Facto Clause of both our state and federal constitutions. Interestingly, Buser does not cite to Evans. He does, however, acknowledge the Myers holding relied upon by this court in Evans. He also cites the United States Supreme Court's holding in Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), that the Ex Post Facto Clause does not apply to offender registration because it is not considered additional punishment. Buser argues, however, that these decisions do not support the State's position for at least two reasons.
First, Buser points out that in Myers, the Kansas Supreme Court held that the public notice provisions of KORA are punishment. As a result, Buser contends, “[a]t minimum ..., [he] can only be required to publically register for [the] 10 years” duration applicable at the time of his sentencing. See Myers, 260 Kan. 669, Syl. ¶ 1 (treating KORA registration, on the one hand, as nonpunitive, and public disclosure of that information under KORA, on the other, as punitive); accord State v. Scott, 265 Kan. 1, 5–6, 961 P.2d 667 (1998) (accepting this distinction in Myers in presuming public disclosure requirements to be punitive and finding they impose constitutionally permissible form of punishment).
A recent unpublished decision by a panel of this court undermines Buser's argument. Specifically, this court found that the United States Supreme Court's more recent interpretation of the Eighth Amendment in Smith v. Doe, 538 U.S. at 105–06, regarding the nonpunitive nature of Alaska's similar offender registration requirements, “effectively undermines the holding in Myers that the disclosure requirements of KORA are punitive for Ex Post Facto purposes.” In re E.L.W., No. 106,241, 2012 WL 686861, at *4(Kan.App.2012) (unpublished opinion), pet. for rev. filed March 19, 2012 (pending). The E.L. W. panel then reasoned:
“In turn, the premise underlying Scott—that the disclosure provisions of KORA amount to punishment-has been undone. See Scott, 265 Kan. at 5 (acknowledging that the Kansas Supreme Court has interpreted the state constitutional bar on cruel and unusual punishment to be coterminous with the Eighth Amendment prohibition).” In re E.L. W., 2012 WL 686861, at *4.
We agree with the E.L.W. panel's reasoning and accordingly Buser's argument concerning the limit on public disclosure for a maximum duration of 10 years to avoid a violation of the Ex Post Facto Clause necessarily fails.
Turning to Buser's second and primary challenge to the State's position that he should have to register under KORA for 25 years, Buser contends that he is subject only to the 10–year registration period in effect at the time he was sentenced because to hold otherwise would violate the Ex Post Facto Clause of the United States Constitution. To reiterate, Buser acknowledges the holdings in Smith and Myers. He suggests, however, that both the United States Supreme Court and the Kansas Supreme Court might now reach a different result in analyzing the 2011 version of the KORA. In support, Buser argues there are stark differences between the following categorical provisions of the current version of the KORA versus the version of the KORA analyzed in Myers and the Alaskan statutory scheme analyzed in Smith: (1) the class of offenders; (2) the penalties for failing to register; (3) the registration procedures; (4) the duration of registration periods for first-time offenders; (5) the information required for registration; and (6) the ability (or lack thereof) to apply for relief from registration. Based on these differences, Buser asks this court to revisit the issue of whether registration under KORA is now punishment under the factors applied by the United States Supreme Court in the punitive/nonpunitive effect analysis in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
This court is duty bound to follow Supreme Court precedent.
Until the Kansas Supreme Court signals an intent to depart from its holding in Myers, however, this court is duty bound to follow its conclusion that KORA's registration requirement challenged by Buser here does not violate Kansas' Ex Post Facto Clause. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Likewise, this court is bound by the United States Supreme Court's interpretation of Alaska's similar offender-registration scheme under the United States Constitution's Ex Post Facto Clause in Smith v. Doe. See Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665,cert. denied361 U.S. 846 (1959) (noting that, under Article VI of the United States Constitution, “the interpretation placed on the Constitution and laws of the United States by the decisions of the supreme court of the United States is controlling upon state courts and must be followed. This we may add is true regardless of views of state courts even though such decisions are inconsistent with their prior decisions.”).
Buser cites to no authority suggesting any such intention on the part of the Kansas Supreme Court, and none was independently found. Accordingly, we decline Buser's invitation to revisit the holdings in Myers or Smith.
Buser must register for 25 years.
We agree with the State that Buser is required to register under the KORA for 25 years. Granted, in the most recent 2012 amendments to KORA, our legislature added juvenile adjudications in various provisions. See, e.g., L.2012, ch. 149, sec. 1 (amending the definition of ‘ “sexually violent crime” * at K.S.A.2012 Supp. 22–4902(c)(13) to include, as emphasized, “any conviction or adjudication for an offense ... that is comparable to a sexually violent crime as defined in this subsection, or any out of state conviction or adjudication for an offense that under the laws of this state would be a sexually violent crime as defined in this subsection”). However, our legislature has not substantively amended those statutory provisions interpreted by this court in Reese to hold that a juvenile adjudication does not qualify as a “conviction” for purposes of determining the duration of registration under K.S.A. 22–4906. See Reese, 42 Kan.App.2d at 388–90. Nor has our legislature added any language to provide that KORA's provisions cannot be applied retroactively, so Evans remains good law. Accordingly under both the 2011 and the 2012 versions of KORA, Buser must register for 25 years as a result of his conviction of indecent liberties with a child. See K.S.A.2011 Supp. 22–4906(b)(1)(E); K.S.A.2012 Supp. 22–4906(b)(l)(E).
The Court's Imposition of A Set 30% Collection Fee In The Event That The Court Trustee Must Pursue Collection of Buser's Court Costs Is Authorized Under Kansas Law
In his third and final issue on appeal, Buser complains about the district court's allowance of the imposition of a 30% collection fee in the event that Buser fails to pay any of his fines or other court costs. That collection fee appears in the journal entry of sentencing as follows:
“In the event Defendant fails to pay any amount of court costs, fees, fines or restitution ordered by the Court and the Court utilizes the services of the Court Trustee, the cost of collection shall be paid by the Defendant as an additional court cost. In all cases referred to the Court Trustee for collection of court debt and/or restitution, a 30% administrative fee shall be charged on the amounts collected from the Defendant. The cost of collection shall be paid from the amount collected, but not be deducted for the debt or restitution owed by the ... Defendant.”
According to Buser, this 30% collection fee is not authorized by Kansas statutes.
Standard of Review
Resolution of this issue involves statutory interpretation, which is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Kansas does have statutes that allow for the imposition of such collection fees under a local administrative rule.
Kansas law does permit the imposition of such fees for collection of unpaid court costs and restitution under certain circumstances. For example, K.S.A.2012 Supp. 75–719(a) provides, in pertinent part:
“The attorney general is authorized to enter into contracts in accordance with this section for collection services for debts owed to courts or restitution owed under an order of restitution. On and after July 1, 1999, the cost of collection shall be paid by the defendant as an additional court cost in all criminal, traffic and juvenile offender cases where the defendant fails to pay any amount ordered by the court and the court utilizes the services of a contracting agent pursuant to this section.”
K.S.A.2012 Supp. 75–719(b)(3) defines “ ‘cost of collection’ “ as, “the fee specified in contracts hereunder to be paid to or retained by a contracting agent for collection services.”
Buser contends, however, that because a set 30% collection fee is not explicitly authorized by statute, this portion of his sentence must be reversed. He further argues that setting a collection fee at 30% is in violation of the relevant statutes because it may not reflect the actual cost of collection.
Buser's argument ignores several statutory provisions. First, K.S.A.2012 Supp. 75–719(c)(5) provides:
“Each contract entered pursuant to this section shall provide for a fee to be paid to or retained by the contracting agent for collection services. Such fee shall be designated as the cost of collection hereunder, and shall not exceed 33% of the amount collected. The cost of collection shall be paid from the amount collected, but shall not be deducted from the debts owed to courts or restitution.”
K.S.A.2012 Supp. 75–719(d) further provides that subject to Kansas Supreme Court rules and orders, each judicial district in the state is authorized to establish local rules relating to court costs and other fees assessed in district court cases. The State has attached to its brief a local administrative rule that mandates the 30% collection fee imposed here in the event that the court trustee is called upon to collect court debt and/or restitution. This court may take judicial notice of this administrative rule. See K.S.A. 60–409(b).
Because the 30% collection fee is authorized by local administrative rule and complies with the maximum collection amount allowed for in K.S.A.2012 Supp. 75–719(c)(5), we hold Buser's argument on this point is without merit.
Affirmed in part, reversed in part, and remanded for correction of the duration of time Buser must register under KORA.