Opinion
No. 107,797.
2013-01-11
STATE of Kansas, Appellee, v. Antonio FABELA, Appellant,
Appeal from Barton District Court; Hannelore Kitts, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Amy J. Mellor, assistant county attorney, Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Barton District Court; Hannelore Kitts, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Amy J. Mellor, assistant county attorney, Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Antonio Fabela pled no contest to aggravated burglary. As part of his plea agreement, Fabela agreed to pay court-appointed attorney fees in an unspecified amount. At sentencing, the court ordered Fabela to pay the Board of Indigents' Defense Services (BIDS) attorney fees in the amount of $558. Fabela appeals the assessment of the attorney fees on the basis that the sentencing court failed to consider his financial resources when it imposed the attorney fees. We agree and remand for further consideration of Fabela's financial resources and the burden that such payment of the fees would impose on him.
On July 7, 2011, Fabela was originally charged with aggravated indecent liberties with a child, aggravated burglary, and criminal damage to property. As a result of plea negotiations, the State agreed to drop two of the charges in exchange for Fabela's plea to aggravated burglary. The plea agreement also provided:
“The defendant will pay, as provided by law, court costs in the amount of $195.00; court-appointed attorney fees in the amount of $ TBD; the BIDS fee in the amount of $100.00; a jail processing fee in the amount of $15.00; the DNA Database Fee in the amount of $200.00; the Probation Fee in the amount of $120.00, if applicable; and any other costs and fees that may be determined.”
The judge sentenced Fabela to 32 months in prison and further ordered Fabela to pay the BIDS attorney fees “according to the plea agreement” in the amount of $558. Fabela appeals the sentencing court's order imposing attorney fees.
Fabela argues that the sentencing court erred by ordering him to reimburse BIDS attorney fees without first considering his financial resources and the burden such payment would impose, as required by K .S.A. 22–4513(b). See State v. Robinson, 281 Kan. 538, 546–47, 132 P.3d 934 (2006). The State concurs that the sentencing court did not explicitly consider the financial burden on Fabela as well as Fabela's ability to pay the fees. But the State argues the sentencing court was exempt from making findings under Robinson because Fabela agreed to pay the BIDS fees as part of his plea agreement.
Interpretation of a statute is a question of law over which we exercise unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
K.S.A. 22–4513(a) requires that BIDS attorney fees “shall be taxed” against the defendant and “shall be enforced” as judgments. K.S.A. 22–4513(b) states: “In determining the amount and method of payment of such sum, 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.”
In Robinson, our Supreme Court held: “A sentencing court assessing fees to reimburse the Board of Indigents' Defense Services under [K.S.A. 22–4513] must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934.
The State is claiming that Fabela effectively contracted away his rights under K.S.A. 22–4513(b) in his plea agreement. In State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010), our Supreme Court addressed a similar argument.
In Copes, the Supreme Court stated that a defendant could waive his or her statutory rights under K.S.A. 22–4513(b) but only when the defendant has explicitly waived such rights. 290 Kan. at 217–18, 224 P.3d 571. The plea agreement provided that defense counsel would recommend that the defendant be ‘ “required to pay the costs of this action, and pay appointed counsel fees in the amount to be determined.1” 290 Kan. at 214, 224 P.3d 571. The court found that a sentencing court may order the payment of BIDS attorney fees without making findings under K.S.A. 22–4513(b) so long as there is a knowing, voluntary, and intelligent waiver. 290 Kan. at 217, 224 P.3d 571. However, as the facts stood in Copes, the court held: “[W]e hold there was not an intentional relinquishment of a known right in this case because the plea agreement merely states defense counsel will recommend that the defendant pay attorney fees and does not contain an explicit waiver of rights.” 290 Kan. at 211, 224 P.3d 571; but see State v. Perry, 39 Kan.App.2d 700, 183 P.3d 12 , Syl., 39 Kan.App.2d 700, 183 P.3d 12,rev. denied 286 Kan. 1184 (2008) (entry into valid plea agreement to pay specific amount of attorney fees waives statutory requirements that must normally be met under Robinson).
In Copes, the Supreme Court recognized that a defendant may relinquish his or her rights based on principles of contract law, but it held that “the contract terms the State seeks to enforce—the agreement to waive rights under K.S.A. 22–4513(b) and the fee amount—are missing from the contract.” 290 Kan. at 217–18, 224 P.3d 571.
Here, Fabela's plea agreement provided that he would pay court-appointed attorney fees in an amount “TBD.” We acknowledge that Fabela's plea agreement is distinguishable from the plea agreement in Copes and makes for a closer issue to be decided. In Copes, the plea agreement only provided for a recommendation to be made by defense counsel with no explicit waiver of a statutory right. 290 Kan. at 211, 224 P.3d 571. Here, Fabela explicitly agreed he would pay attorney fees in an amount to be announced. Consequently, it is not unreasonable to argue Fabela made a knowing, voluntary, and intelligent waiver. Our difficulty with such a conclusion is that the Supreme Court in Copes emphasized under its analysis based on contract law that waiver would not be presumed in the absence of a fee amount in the plea agreement. 290 Kan. at 218, 224 P.3d 571. That required element of a binding contract—the dollar amount to be assessed and paid—is likewise missing in the plea agreement signed by Fabela. Thus the Supreme Court's interpretation of K.S.A. 22–4513(b) in Copes compels us to conclude there was no unequivocal relinquishment of a statutory right by Fabela.
Absent some indication that our Supreme Court is departing from its previous positions, we are duty bound to follow Robinson and Copes. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Accordingly, we vacate the order for attorney fees and remand for a determination of attorney fees consistent with Robinson,
Vacated in part and remanded.