Opinion
111,704.
06-12-2015
STATE of Kansas, Appellee, v. Jennifer N. COOK, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jennifer N. Cook appeals the district court's order to pay a $500 fine and reimburse the State Board of Indigents' Defense Services (BIDS) $600 for court-appointed attorney fees. Cook contends the district court failed to fully comply with its statutory obligations under K.S.A. 22–4513 and K.S.A.2014 Supp. 21–6612 to make appropriate findings on the record regarding the amount of the court-imposed financial obligations she was capable of paying.
Cook's appeal has merit. Accordingly, we vacate the district court's orders relating to the fine and reimbursement of BIDS attorney fees and remand with directions for further proceedings consistent with this opinion.
Factual and Procedural Background
In keeping with a plea agreement, Cook pled guilty to one count of felony theft, in violation of K.S.A.2011 Supp. 21–5801(a)(1), (b)(6), for stealing merchandise from a department store. Cook was sentenced on January 17, 2014. After discussing at length the serious nature of Cook's crime, the district court sentenced her to 12 months' probation with an underlying prison term of 6 months. Additionally, the district court imposed a $500 fine and ordered Cook to reimburse BIDS for attorney fees totaling $600 plus the administrative fee of $100.
Although the district court did not make any particularized findings about its decision to impose a fine, the judge made the following remarks regarding the assessment of BIDS' attorney fees:
“[The fees are] payable on a schedule set by probation pursuant to ... State v. Robinson [, 281 Kan. 538, 132 P.3d 934 (2006) ]. I do believe you have the financial resources and that is not an undue burden. There's no disabilities, no physical limitations on work, and you've got the whole course of probation....”
Defense counsel asked the district court to reconsider its “Robinson findings, particularly with regard to the attorney's fees but also the fine.” Defense counsel asserted that payment of the fine and BIDS' fees would impose an undue burden upon Cook because she had other court costs to pay, she only had a short time to satisfy her court-imposed financial obligations, and she had been unemployed for “the past couple of months ... [and] unable to obtain employment.”
In response, the district court had a colloquy with Cook to confirm her age (25 years old) and that she had no physical disabilities or limitations to employment. The district court also pointed out that Cook had “a lengthy period of time” to pay the court-ordered obligations. Finally, the district judge observed: “This is a financial crime. And I do believe that it is necessary that, you know, an individual be required to pay a fine on these and be financially responsible.” Upon reconsideration, the district court did not modify its prior orders.
Cook filed this timely appeal.
Discussion
On appeal, Cook contends the district court erred when it ordered her to pay a fine and reimburse BIDS because the court failed to explicitly consider, on the record, her ability to pay and the financial burden payment would impose as required by K.S.A. 22–4513(b) and K.S.A.2014 Supp. 21–6612(c) and (d).
With regard to the $500 fine, K.S.A.2014 Supp. 21–6612 grants district courts the discretion to impose a fine in addition to a sentence of imprisonment, probation, or assignment to community corrections, provided the defendant derived a pecuniary gain from the crime or a fine promotes deterrence or the offender's reformation. Mirroring language nearly identical to K.S.A. 22–4513(b), K.S.A.2014 Supp. 21–6612(c) requires district courts to “take into account the financial resources of the defendant and the nature of the burden that its payment will impose” when determining the amount and method of payment of a fine. Moreover, K.S.A.2014 Supp. 21–6612(d) obligates the district court to state on the record that it has considered these factors.
Our Supreme Court has emphasized the plain language of this fine statute. Citing a prior version of the statute in State v. McGlothlin, 242 Kan. 437, 440, 747 P.2d 1335 (1988), our Supreme Court held:
“The [district] court cannot automatically impose ... a fine; to do so, the court must find that the defendant profited from the crime, or that a fine is adapted to deterrence or to correction. The court must take into consideration the financial resources of the defendant and the nature of the burden that payment of the fine will impose.”
Although Cook mentions that she “did not obtain pecuniary gain from the crime” because the department store recovered the stolen merchandise, she does not specifically complain about this lack of findings by the district court. See K.S.A.2014 Supp. 21–6612(b) –(d).
With regard to the reimbursement of BIDS' attorney fees by convicted criminal defendants, our Supreme Court has stated: “District court judges have discretion in determining the amount of BIDS fees a defendant is assessed, along with discretion to waive part of or all of the fees.” State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 (2013) ; see K.S.A. 21–4603d(i) ; K.S.A. 22–4513(b). But according to K.S.A. 22–4513(b), when determining the amount and method of payment, the district court “shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.”
In State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), our Supreme Court held this statutory language is mandatory. In other words, K.S.A. 22–4513(b) obligates district courts, at the time of the assessment of such fees, to “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 in the court's decision.” 281 Kan. at 546. The court explained: “Without an adequate record on these points, meaningful appellate review of whether the court abused its discretion in setting the amount and method of payment of the fees would be impossible.” 281 Kan. at 546.
Cook argues that the district court violated K.S.A. 22–4513(b) and K.S.A.2014 Supp. 21–6612(c) because rather than fully assessing her financial situation, i.e., her savings, debts, liabilities, and expenses, the judge merely inquired as to her age and ability to work, an inquiry which did not satisfy the court's statutory obligation to explicitly consider her financial resources and the burden payment would impose.
The State counters that the district court satisfied the requirements of K.S.A. 22–4513(b) and K.S.A.2014 Supp. 21–6612 because, in addition to inquiring as to Cook's future employability, the district court had at its “disposal, [Cook]'s financial affidavit in which she attested that she did not have any monthly bills or financial obligations.”
Whether the district court complied with the requirements of K.S.A. 22–4513(b) and K.S.A.2014 Supp. 21–6612 involves the interpretation of statutory language, a question of law over which this court has unlimited review. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014).
Having reviewed the record, we are persuaded that the district court's limited factfinding focusing on Cook's ability to be employed did not satisfy the requirements of K.S.A. 22–4513(b) and K .S.A.2014 Supp. 21–6612. The district court did not make findings regarding Cook's assets, debts, financial obligations, or resources. Moreover, without that information, the district court also could not meet the statutory requirements of explicitly considering the burden the fine and BIDS' reimbursement would impose upon Cook. While the district court confirmed that Cook did not have any disabilities to being employed, it failed to question Cook regarding her financial resources and obligations and her ability to pay the court-ordered obligations.
Our court has deemed similar omissions by district courts as reversible error. See, e.g., State v. Cummings, 45 Kan.App.2d 510, 511–12, 247 P.3d 220 (judge asked defense counsel if defendant could pay when he got out and said to defendant, “ ‘[Y]ou tell me how much you're willing to pay per month after you get out, sir’ ”), rev. denied 292 Kan. 966 (2011); State v. Knight, 44 Kan.App.2d 666, 686–87, 241 P.3d 120 (2010) (judge asked defendant how much of his attorney fees he could pay and when he could start paying it back, but judge did not inquire into defendant's financial resources), rev. denied 292 Kan. 967 (2011); State v. Long, No. 107,740, 2013 WL 5925899, at *8 (Kan.App.2013) (unpublished opinion) (judge asked defendant if he was capable of earning “ ‘a livable wage’ “ but failed to consider his financial resources or the hardship associated with the repayment of attorney fees), rev. denied 300 Kan. ____ (November 4, 2014); State v. Smith, No. 108,447, 2013 WL 4404218, at *2 (Kan.App.2013) (unpublished opinion) (although judge noted that defendant was employed and had adequate transportation, the court never considered whether defendant was supporting others or inquired as to his financial obligations prior to ordering him to reimburse BIDS), rev. denied 299 Kan. ____ (April 14, 2014).
Moreover, the fact that Cook completed a financial affidavit in order to obtain court-appointed counsel does not remedy the district court's error. The record does not indicate the district court considered the affidavit during sentencing or that Cook confirmed that its contents were still accurate. Additionally, the district court never stated on the record how the affidavit factored into its decision to impose a fine and assess attorney fees.
In State v. Farrington, No. 107,781, 2013 WL 3970179, at *2 (Kan.App.2013) (unpublished opinion), our court considered a similar factual situation and observed:
“We pause here to note that Robinson [, 281 Kan. 538,] does not impose an unduly burdensome standard on the district court. Farrington completed a financial affidavit in order to obtain court-appointed counsel. It set forth considerable information regarding his financial status. If the district court had simply asked Farrington whether the information in the affidavit was still current and accurate and then briefly stated on the record how the court weighed those factors in arriving at its ruling regarding reimbursement, the requirements of K.S.A. 22–4513 and Robinson would have been met. [Citation omitted.]”
See also State v. Griffith, No. 108,266, 2013 WL 2936079, at *2 (Kan.App.2013) (unpublished opinion) (similarly suggesting district courts review existing financial affidavits in making BIDS reimbursement decisions).
For the reasons discussed above, we conclude the district court erred when it imposed a $500 fine and assessed $600 in BIDS' attorney fees without explicitly considering Cook's financial resources and the nature of the burden that payment would impose. Accordingly, we vacate the order regarding payment of the fine and BIDS attorney fees and remand the case to the sentencing court with instructions to make the required on-the-record findings. See Smyser, 297 Kan. at 207 ; State v. Bastian, 37 Kan.App.2d 156, 164–65, 150 P.3d 912 (2007). With regard to the imposition of a fine, we also direct the district court to make findings regarding whether the defendant profited from the crime or whether the fine is necessary for deterrence or correction. See K.S.A.2014 Supp. 21–6612(b) and (d).
Vacated and remanded with directions.