Opinion
No. 110,276.
2014-10-31
STATE of Kansas, Appellee, v. Andrew Thomas FINCH, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
MALONE, C.J.
Andrew T. Finch appeals his convictions of one count of fleeing or attempting to elude an officer and one count of criminal damage to property. Finch claims the district court: (1) committed reversible error and violated his constitutional rights by responding to a jury question in writing; (2) erred by ordering restitution for a party who did not make a formal request for restitution; (3) erred in imposing a fine without making the requisite statutory findings; and (4) violated his constitutional rights when it imposed an increased sentence based upon his prior criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. For the reasons explained herein, we affirm the district court's judgment.
In the early morning hours of October 18, 2012, Wichita Police Department (WPD) Officer Dominic Artis was riding in a patrol vehicle with another officer. Shortly before 1a.m., they encountered a red Honda Accord, and Artis ran the vehicle's tag using the in-car computer. The results showed that the tag was registered to an Acura, not a Honda. Artis activated the patrol vehicle's lights and sirens and initiated a traffic stop.
The Honda came to a stop northbound on Market Street near its intersection with 21st Street. Artis approached the Honda; he was in uniform and had his law enforcement badge prominently displayed. Artis observed a male driver, later identified as Finch, and a female passenger. As Artis neared the driver's side door, Finch sped away from the scene. Finch turned right on 21st Street, without signaling, and headed toward Interstate 135 (I–135). Artis and his partner gave chase with their lights and sirens activated. The patrol car was having transmission issues and could not exceed 70 miles per hour, so they called for other officers to assist and take over the pursuit.
WPD Officer Rex Leffew responded to Artis' radio call. Leffew also was in uniform with his badge displayed. As Leffew headed toward the pursuit in his patrol vehicle, he saw the Honda make a turn and head south on I–135. Leffew activated his lights and sirens and pursued the Honda onto the interstate, assuming the lead position in the chase. While driving on I–135, Finch traveled at speeds between 80 and 100 miles per hour in a posted 60–mile–per–hour zone. Finch eventually took an exit ramp off of I–135 and headed east on Kellogg Avenue. He then exited at Woodlawn Avenue onto the frontage road, Kellogg Drive. Finch ran a red light at the intersection of Kellogg Drive and Woodlawn Avenue and continued to travel at speeds between 60 and 80 miles per hour in a posted 40–mile–per–hour zone.
WPD Officer Jonathan Estrada joined in the pursuit, also in uniform with his badge displayed and driving his patrol vehicle with lights and sirens activated. Finch continued on Kellogg Drive until he reached its easternmost end; there, without signaling, he made a U-turn across all the lanes and headed west on Kellogg Avenue. Finch then took the Rock Road exit, without signaling, and proceeded north on Rock Road in the southbound lanes of traffic. Finch ran a red light at the intersection of Rock Road and Douglas Avenue before crossing back into the northbound lanes of travel. Finch then ran another red light at the intersection of Rock Road and Central Avenue.
WPD Officer Kevin McKenna—in uniform with his badge displayed—attempted to assist the other officers by driving his patrol vehicle parallel to the pursuit. McKenna hoped to intercept the Honda and use “stop sticks” to puncture the Honda's tires. However, another WPD officer advised via radio that he would be deploying stop sticks just north of Central Avenue on Rock Road. As he approached the stop sticks, Finch swerved to miss them and lost control of his car. The Honda crashed between a utility pole and a service box on the right side of Rock Road. Finch did not remain stopped, but rather headed back southbound on Rock Road. The officers resumed their pursuit.
Finch turned east onto Killarney Street—a dead-end residential street. When Finch reached the end of the street, he drove through a metal gate and fence and through two yards before the Honda came to rest on top of a swimming pool, floating over the water atop the pool cover. McKenna approached Finch and ordered him to get out of the Honda. McKenna helped to pull Finch from the vehicle and then arrested him. Finch's arrest was captured on video by nearby security cameras. The Honda floated on the pool cover for 4–5 minutes before sinking to the bottom of the pool, taking the cover with it.
The State charged Finch with fleeing or attempting to elude an officer by driving around a tire-deflating device, or in the alternative, by committing five or more moving violations, a severity level 9 person felony; criminal damage to property valued between $1,000 and $25,000 at 8200 E. Killarney, a severity level 9 felony; criminal damage to property at 8201 E. Killarney, a class B misdemeanor; and driving while suspended (DWS), a class A misdemeanor. After Finch's preliminary hearing, the State filed an amended complaint, increasing the value of the property damage at 8200 E. Killarney to greater than $25,000, a severity level 7 person felony.
On May 29, 2013, before Finch's jury trial began, he pled guilty to DWS. The remainder of the counts proceeded to trial. The State called Artis, Leffew, Estrada, and McKenna as witnesses and showed the security camera video footage of Finch's arrest to the jury. The State also called Maria Chandler, the owner of the home at 8200 E. Killarney, to testify about the damage caused to her property. Chandler spent in excess of $30,000 repairing the damage caused by Finch to her yard, landscaping, and swimming pool. The State admitted into evidence photographs to document the damages to both 8200 and 8201 E. Killarney. Finch presented no evidence at trial.
During deliberations, the jury submitted two written questions concerning the alternative counts of fleeing or attempting to elude an officer. With Finch present, the district court proposed answers to the jury questions, and both attorneys stated they had no objection to the responses. The judge stated that he would send the written responses back to the jury, and neither party objected to this procedure. The jury's written questions and the district court's written responses were later filed in the court file.
The jury found Finch guilty of fleeing or attempting to elude an officer under both theories. Regarding the damage to 8200 E. Killarney, the jury found Finch guilty of the lesser included offense of criminal damage to property valued between $1,000 and $25,000. The jury acquitted Finch of misdemeanor criminal damage to property.
On July 18, 2013, the district court sentenced Finch to 14 months' imprisonment on the first count of fleeing or attempting to elude an officer; 6 months' imprisonment for the criminal damage to property; and a consecutive 12–month jail term and a $100 fine for DWS. The district court dismissed the alternative charge of fleeing or attempting to elude an officer. The district court also ordered Finch to pay $31,057.06 in restitution; with $5,000 to be paid to Chandler to reimburse her for her insurance deductible and the remainder to be paid to her insurance carrier, The Chubb Group. Defense counsel objected to the restitution order on the ground that The Chubb Group had not submitted a formal restitution request. The district court overruled the objection. Finch timely appealed the district court's judgment.
Response to Jury Question
In his first issue on appeal, Finch contends that the district court committed reversible error and violated his constitutional rights when it sent the jury written answers to its questions instead of reading them in open court. Specifically, Finch claims that this procedure violated his constitutional rights to a public trial, to be present at every critical stage of a trial, and to an impartial judge. The State acknowledges that the district court did not follow the correct procedure in responding to the jury questions but argues that this error was harmless beyond a reasonable doubt.
K.S.A. 22–3420(3) governs the procedure for a jury question during deliberation:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The analysis of the district court's procedure for responding to a jury question requires both statutory and constitutional interpretation. This presents a question of law over which an appellate court has unlimited review. See State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012) (citing State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 [2010] ), rev. denied 297 Kan. 1256 (2013).
As a preliminary matter, Finch did not object to the district court about the procedure he now challenges. Generally, a party may not raise constitutional issues for the first time on appeal. See State v. Williams, 298 Kan. 1075, 1083–84, 319 P.3d 528 (2014). However, as Finch correctly states, our Supreme Court previously has addressed claims for the first time on appeal regarding the procedure used by a district court to respond to jury questions. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014); State v. Bell, 266 Kan. 896, 919–20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). Because our Supreme Court previously has addressed this issue for the first time on appeal, we will address the merits of Finch's claim.
Right to be present
Finch argues that the procedure used by the district court in responding to the jury questions violated his constitutional right to be present at every critical stage of the trial because he was not present when the district court's response was communicated to the jury. “A defendant has a constitutional right to be present during critical stages of a criminal proceeding. That right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. [Citations omitted.]” State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007).
The Kansas Supreme Court has been inconsistent in its rulings on whether the procedure of sending written responses to jury questions back to the jury room without bringing the jury into the courtroom violates K.S.A. 22–3420(3). In State v. Wells, 296 Kan. 65, Syl. ¶ 21, 290 P.3d 590 (2012), our Supreme Court unanimously held that to ensure a defendant's constitutional and statutory right to be present at all critical stages of the trial is protected, a defendant must be present during the court's discussion with the attorneys and ultimate decision on how to respond to a jury question. But there is no need that the court read the written answer to the jury in open court in the defendant's presence; simply delivering the answer to the jury via written note is sufficient. 296 Kan. at 90–92; accord State v. Bums, 295 Kan. 951, 956–57, 287 P.3d 261 (2012) (approving the same procedure for answering written question from jury).
But less than 1 year after its unanimous decision in Wells, our Supreme Court reexamined this issue in State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013), and unanimously held; “[W]e overrule the statement in Burns suggesting that a jury question need not be answered in open court.... [A]ny question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. [Citation omitted.]” The ruling in King was reaffirmed in Bowen, 299 Kan. at 357–58.
Finch's jury trial was held in May 2013. Under Burns and Wells, which were controlling at the time of Finch's trial, it was deemed permissible to provide a written response to a jury question outside the defendant's presence in open court as long as the defendant was present when the answer was formulated. Unfortunately, the trial judge in Finch's case was unable to foresee that the Kansas Supreme Court was about to reverse its position on this issue. King and Bowen, which were decided after Finch's trial, now make it clear that the district court's procedure in responding to questions from the jury violated K.S.A. 22–3420(3) and Finch's constitutional right to be present at every critical stage of his trial.
However, the King and Bowen courts also held that this error is subject to the constitutional harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). Bowen, 299 Kan. at 357–58; King, 297 Kan. 955, Syl. ¶ 4. Under that standard,
“ ‘the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” State v. Lowrance, 298 Kan. 274, 283, 312 P.3d 328 (2013).
Bowen further instructs that a court should consider four factors when resolving whether communication between a district court judge and jury outside the defendant's presence amounts to constitutional harmless error:
“(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error. [Citations omitted.]” 299 Kan. at 357.
None of these factors require reversal of Finch's convictions. First, the State had a strong case against Finch and presented evidence supporting both theories of fleeing or attempting to elude, as well as the property damage to 8200 E. Killarney. Multiple officers pursued Finch, each wearing his uniform with badge displayed and driving a marked patrol vehicle with lights and sirens activated. Finch refused to stop and committed at least nine moving violations during the chase. He dodged tire-deflating devices placed on the road that would have deflated his tires. Once Finch started fleeing from officers, he failed to stop even after wrecking his car. Officers did not stop pursuing Finch until he drove atop the Chandlers' swimming pool and was removed from the driver's seat by McKenna. Finch's arrest was captured on video by a security camera and shown to the jury. Photographs were admitted showing the damage to 8200 E. Killarney. Chandler testified that she spent more than $26,000 for repairs and cleanup as of the trial date and had just received another bill for more than $4,000.
As to the second factor, Finch did not object to the district court's procedure of responding to the jury questions in writing. As to the third factor, the jury's questions were legal in nature and sought clarification regarding the alternative counts of fleeing or attempting to elude an officer. The answers sent to the jury were a correct statement of the law, and Finch does not argue otherwise. Finally, Finch did not pursue relief on this issue through posttrial remedies. Finch's inaction prevented the district court from determining whether the use of this incorrect procedure actually caused any harm and from considering potential remedies to mitigate that harm.
In light of the entire record, we find there is no reasonable possibility that the district court's procedure for responding to the jury questions contributed to the verdict. Therefore, the error was harmless beyond a reasonable doubt.
Rights to a public trial and to an impartial judge
Finch next argues that the district court's procedure in responding to the jury questions violated his rights to a public trial and to an impartial judge. He contends that a defendant's constitutional rights to a public trial and to an impartial judge are so fundamental that they are examined with structural error analysis on appeal. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
As the State points out, this court previously has rejected both of Finch's claims. In Womelsdorf, the district court, after consulting with counsel, responded to two questions from the deliberating jury by sending a written answer to the jury room. The defendant asserted on appeal that this procedure violated her rights to a public trial and to an impartial judge. Regarding the right to a public trial, the Womelsdorf court stated:
“[T]he judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to a public trial.” 47 Kan.App.2d at 325.
Likewise, the Womelsdorf court concluded that “the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to an impartial judge.” 47 Kan.App.2d at 324. Numerous panels of this court have followed Womelsdorf's holding that the procedure of sending a written response to a deliberating jury's question does not violate a defendant's right to an impartial judge. See, e.g., State v. Owens, No. 109,369, 2014 WL 1612457, at *4–5 (Kan.App.2014) (unpublished opinion); State v. Armstead, No. 108,533, 2014 WL 349561, at *11–12 (Kan.App.2014) (unpublished opinion), petition for rev. filed February 28, 2014; State v. Wells, No. 108,165, 2013 WL 3455798, at *9–10 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 18, 2014); State v. Hogan, No. 106,220, 2012 WL 5364674, at *8–9 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1251 (2013); see also State v. Ramirez, ––– Kan.App.2d ––––, 334 P.3d 324, 332 (2014).
Cumulative error
Finch also argues that the individual instances of error—both statutory and constitutional—regarding the procedure used by the district court to respond to the jury questions acted cumulatively to deny him a fair trial. Here, the only error committed by the district court was delivering its responses to the jury's questions without Finch present, but this error was harmless beyond a reasonable doubt. Finch is not entitled to relief under a claim of cumulative error.
Conclusion
In summary, the district court's procedure in responding to the jury questions did not violate Finch's constitutional rights to a public trial and to an impartial judge. The procedure did violate K.S.A. 22–3420(3) and Finch's constitutional right to be present at every critical stage of his trial; but in light of the entire record, there is no reasonable possibility that the error contributed to the verdict. Thus, the error was harmless beyond a reasonable doubt.
Restitution Award
Next, Finch argues that the district court violated K.S.A.2013 Supp. 22–3424(d) by awarding restitution to Chandler's insurance carrier, The Chubb Group, even though it had not submitted a restitution request. The State disagrees, contending that the district court properly determined restitution.
Two statutes govern this court's consideration of this issue. First, K.S.A.2013 Supp. 22–3424(d), which is part of the general procedural statute regarding judgment and sentence, provides in relevant part: “If the verdict or rinding is guilty, upon request of the victim or the victim's family and before imposing sentence, the court shall hold a hearing to establish restitution.” Second, K .S.A.2013 Supp. 21–6604, which sets out the authorized dispositions for crimes committed after July 1, 1993, states in relevant part:
“(b)(1) In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable....
“(e) ... If the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole, conditional release or post-release supervision.”
K.S.A.2013 Supp. 22–6607(c)(2) provides similar authority for a district court to impose restitution on defendants placed on probation. As a result of the limitations imposed by these statutes, “[i]n Kansas, restitution for a victim's damages or loss depends on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages.” State v. Hunziker, 274 Kan. 655, Syl. ¶ 9, 56 P.3d 202 (2002).
“An appellate court's review of a restitution order can involve three standards of review. Issues regarding the amount of restitution and the manner in which it is made to the aggrieved party are normally subject to review under an abuse of discretion standard. [Citation omitted.] However, a district judge's factual finding of causation between the crime and the victim's loss is subject to a substantial competent evidence standard of review. [Citation omitted.] Finally, this court has unlimited review over the district court's interpretation of statutes. [Citation omitted.]” State v. Dexter, 276 Kan. 909, 912–13, 80 P.3d 1125 (2003).
Finch acknowledges that as Chandler's insurance carrier, The Chubb Group would potentially be eligible for reimbursement through restitution. However, he claims the district court did not have the authority to order restitution to The Chubb Group because it failed to file a restitution claim. In support of this argument, Finch relies on State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011). According to Finch, the McDaniel court determined that K.S.A.2013 Supp. 22–3424(d) only authorizes restitution when the crime victim or the victim's family formally files a request for restitution.
Finch mischaracterizes the Supreme Court's holding in McDaniel. In that case, the defendant entered a guilty plea to one count of aggravated battery arising from his involvement in a fight that ended with him stabbing the victim. At the sentencing hearing, the defendant objected to the restitution amount and the district court scheduled a separate hearing to determine restitution, which was held 3 weeks after the sentencing hearing. At the later hearing to determine restitution, the defendant stipulated to a restitution amount of $7,744.26, and the judge entered an order consistent with that stipulation.
On appeal, the defendant argued that the district court lacked jurisdiction to order restitution because, pursuant to K.S.A. 22–3424(d), any hearing on restitution must take place before sentencing. Our Supreme Court acknowledged that the plain language of the statute provides that a court “shall” hold a hearing to establish restitution before imposing sentence, but it found this language is limited to situations in which the crime victim or the victim's family requested restitution. 292 Kan. at 446. Furthermore, the court held that K.S.A. 22–3424(d) is directory, not mandatory, and thus the district court's failure to hold a hearing on the amount of restitution before sentencing did not deprive the district court of jurisdiction. 292 Kan. at 447.
The McDaniel decision does not support Finch's argument that K.S.A.2013 Supp. 22–3424(d) requires a party to make a formal request for restitution before restitution can be ordered. Rather, the McDaniel decision merely deals with the timing of the hearing to establish restitution; it does not address whether a district court may order restitution for a party who has not submitted a formal restitution request. Furthermore, even the timing sequence for the restitution hearing set forth in the statute is directory, not mandatory.
K.S.A.2013 Supp. 21–6604(b)(l) clearly states that a district court “shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” The statute does not impose a requirement that a party submit a formal request before a court may order restitution.
Here, the State presented detailed testimony from Chandler regarding the damages and loss she sustained to her property at 8200 E. Killarney. The parties also proffered that the full loss amount of $31,057.06 had been paid by Chandler's insurance carrier—less her $5,000 deductible—based on Chandler's receipts and request for restitution. The district court noted in its ruling that if it awarded the full restitution amount to Chandler, her insurance carrier would likely have to be indemnified for its expenses in paying out her policy. The district court apparently chose to eliminate this step by ordering that Chandler be reimbursed for the deductible she paid out of pocket and that the balance of the restitution be paid to her insurance carrier.
The district court properly applied K.S.A.2013 Supp. 21–6604(b)(1) by ordering restitution when it was owed and did not make any factual errors in determining the amount of restitution owed. Thus, the district court did not err in ordering Finch to pay restitution to The Chubb Group even though it did not file a formal request for restitution.
DWS Fine
Next, Finch argues that the district court erred when it imposed a $100 fine for his DWS conviction without making findings on the record pursuant to K.S.A.2013 Supp. 21–6612. He asserts that imposition of the fine constitutes an illegal sentence and asks this court to vacate that portion of his sentence. The State contends that the district court correctly imposed the statutorily mandated minimum fine for Finch's DWS conviction.
K.S.A.2013 Supp. 21–6612, which addresses the criteria for imposing fines, states in pertinent part:
“(b) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment, probation or assignment to a community correctional service program unless:
(1) The defendant has derived a pecuniary gain from the crime; or
(2) the court finds that a fine is adapted to deterrence of the crime involved or to the correction of the offender.
“(c) In 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.
“(d) If a fine is ordered pursuant to subsection (b), the court's findings regarding the requirements of subsections (b) and (c) shall be stated on the record.”
The resolution of this issue requires statutory interpretation. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The district court ordered Finch to serve 20 months in prison for his fleeing or attempting to elude and criminal damage to property convictions, followed by 12 months in jail and a $100 fine for his DWS conviction. Because it imposed both prison time and a $100 fine, Finch contends that the district court was required to make statutory findings under K.S.A.2013 Supp. 21–6612(b) before imposing the fine.
However, K.S.A.2013 Supp. 8–262(a)(3), the specific statute governing penalties for a DWS conviction, states in pertinent part that “every person convicted under this section shall be sentenced to at least five days' imprisonment and fined at least $100.” Thus, a $100 fine constitutes the mandatory minimum fine to be imposed by the court for any DWS conviction, even when a term of imprisonment is also imposed.
In State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010), our Supreme Court interpreted K.S.A. 21–4607, which has been recodified as K.S.A.2013 Supp. 21–6612, in the context of the defendant's conviction of driving under the influence of alcohol (DUI). The court found that the phrase “[s]hall be guilty of a non-person felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500” in K.S.A. 8–1567(g)(l) makes the imposition of a $2,500 fine for a fourth or subsequent DUI conviction mandatory, not directory, even when a term of imprisonment is also imposed. 290 Kan. at 220. The mandatory minimum $100 fine under K.S.A.2013 Supp. 8–262(a)(3) for a DWS conviction is similar to the mandatory minimum fine for a DUI conviction. Thus, we conclude the district court was not required to make statutory findings under K.S.A.2013 Supp. 21–6612(b) before imposing the mandatory minimum $100 fine for Finch's DWS conviction. See also State v. Raschke, 289 Kan. 911, Syl. ¶ 6, 219 P.3d 481 (2009) (when court imposes mandatory minimum fine, court is not required to take into account defendant's financial resources and the nature of the burden that payment will impose).
Apprendi Issue
Finally, Finch argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 435 (2000), when it sentenced him based in part on his criminal history without first requiring the State to present the criminal history to a jury and prove it beyond a reasonable doubt. Finch concedes that the Kansas Supreme Court already has decided this issue against him. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). This court is duty bound to follow Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no indication that the Kansas Supreme Court is departing from its holding in Ivory. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory ). Thus, this claim must fail.
Affirmed.