Opinion
No. 106,864.
2012-09-28
STATE of Kansas, Appellee, v. Rock MOODY, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rock Moody appeals his sentence, claiming that the district court erred by ordering him to pay attorney fees without considering his financial resources and his ability to pay, by denying his request for a dispositional departure, by failing to grant a greater durational departure, and by considering his prior criminal history without requiring the State to prove that history to a jury beyond a reasonable doubt. We affirm in part, dismiss in part, reverse and vacate in part, and remand for further proceedings under K.S.A. 22–4513(b) and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006).
FACTS
Rock Moody pled no contest to one count of aggravated burglary, a severity level 5 person felony, and one count of felony theft, a severity level 9 nonperson felony. Prior to sentencing, Moody moved for a dispositional and/or a durational departure. Moody's presentence investigation report reflected that Moody had 33 prior convictions and had a criminal history score of C. Citing Moody's previous theft convictions and extensive criminal history, the district court denied his request for a dispositional departure but granted his request for a durational departure and sentenced him to 30 months' imprisonment on the aggravated burglary charge and 6 months' imprisonment on the theft charge. The sentences were ordered to run concurrently, and he was ordered to pay $400 in attorney fees. In ordering the attorney fees, the judge stated:
“As far as the attorney's fees, Mr. Moody, I'll—I know a little bit about your background from your attorney. I'll reduce those to $400.00 which is a little less than half and require the $100.00 application fee. So that's something you can work on once you're out and employed.”
Moody timely filed his notice of appeal.
Attorney Fees
Moody asserts that the district court failed to consider the factors enumerated in K.S.A. 22–4513(b) before ordering him to pay $400 in attorney fees. This issue involves the interpretation of a statute, which is a question of law over which an appellate court exercises unlimited review. Robinson, 281 Kan. at 539. Moody contends that the district court's vague statement that it knew “a little bit about [his] background from [his] attorney” did not comply with the court's obligation to consider the statutory factors before ordering a defendant to pay attorney fees.
When assessing attorney fees against a defendant, a 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.” K.S.A. 22–4513(b). In Robinson, our Supreme Court noted that when a district court fails to make an adequate record regarding the statutory factors in assessing attorney fees, it is difficult for an appellate court to adequately review such an assessment. Robinson, 281 Kan. at 546.
Moody cites State v. Wiles, No. 106,066, 2012 WL 1237909 (Kan . App.2012) (unpublished opinion), to support his argument that the imposition of attorney fees must be reversed. In Wiles, the sentencing court asked Wiles if he had any financial resources that he could use to pay attorney fees, and Wiles responded, “I will have to speak to a member of my family. I may have.” Without acquiring any additional information or engaging in any further inquiry, the district court ordered Wiles to pay $975 in attorney fees. A panel of this court concluded that the district court failed to explicitly consider Wiles' financial resources and the burden imposed and failed to state on the record how those factors weighed into the court's decision. Wiles, 2012 WL 1237909, at *1.
At Moody's sentencing, the district judge ordered him to pay attorney fees after stating, “I know a little bit about your background from your attorney.” Because the district court did not inquire about Moody's financial resources and the burden that the $400 payment would impose on him, we reverse and vacate the attorney fee order and remand for further proceedings in compliance with K.S.A. 22–4513(b) and Robinson.
Durational and Dispositional Departures
An appellate court reviews a district court's ruling on a departure motion for an abuse of discretion. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). A judicial action constitutes an abuse of discretion if the action is: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Moody argues that the district court abused its discretion in denying his motion for a dispositional departure and by not granting him a greater durational departure because the victim suffered little harm, he does not have a history of committing violent criminal offenses, and he suffers from a drug abuse addiction. Moody claims that allowing him to participate in drug abuse treatment would be a more appropriate sentencing alternative. Moody points out that prior to his sentencing in this case, the Shawnee County District Court granted him probation with placement in a drug treatment program in a different case.
Moody is unable to show that he has been aggrieved by the district court's decision to grant him a durational departure. Moody had a criminal history score of C, and the presumptive prison sentencing range for an aggravated burglary conviction was 53 to 60 months. Moody's motion for a durational departure was granted, and he was sentenced to 30 months' imprisonment. Essentially, Moody is complaining that the district court should have granted him probation or even less time in prison.
In State v. Crawford, 21 Kan.App.2d 169, 170, 897 P.2d 1041 (1995), a panel of this court held that a party's right to appeal a district court's order on a departure motion is limited to situations in which the court's decision is adverse to the appealing party. In State v. Fay, No. 103,883, 2011 WL 432378, at *1 (Kan .2011) (unpublished opinion), our Supreme Court approvingly cited the Crawford decision as support for the proposition that the court lacked jurisdiction to review a defendant's appeal of a favorable departure sentence. Although an unpublished decision is not binding precedent, it may nonetheless be cited as persuasive authority with respect to a material issue in a case that is not addressed in a published decision and when it will assist the court in its disposition. See Supreme Court Rule 7.04(f)(2)(ii) (2011 Kan. Ct. R. Annot. 57).
K.S.A.21–4721(d) states:
“In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) Constitute substantial and compelling reasons for departure.”
Moody contends that the district court abused its discretion because Moody's substantial and compelling reasons warranted either a dispositional departure or a more substantial durational departure. However, Moody has failed to show that the district court's decision was fanciful, arbitrary, or capricious or grounded upon an error of law or fact. The district court rejected Moody's claim for a dispositional or greater durational departure and gave substantial and compelling reasons for its decision; Moody had 33 prior criminal convictions, including numerous prior convictions for theft. Based upon Moody's extensive criminal history and his repeated disregard for the property rights of others, the district court found that a dispositional departure or a greater durational departure was not warranted. Without any facts or law to support Moody's request for a dispositional or more substantial durational departure, we dismiss his appeal of this issue.
Use of Criminal History In Sentencing
Moody argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to increase his sentence and did not require that criminal history to be submitted to a jury and proven beyond a reasonable doubt. Moody concedes that in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), our Supreme Court already decided this issue adverse to his position; however, he raises this argument to preserve it for federal review.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007). Our Supreme Court has shown no indication that it intends to depart from its decision in Ivory. See State v. Gonzales, 289 Kan. 351, 372, 212 P.3d 215 (2009) (affirming Ivory ), Thus, Moody's argument is without merit.
Affirmed in part, dismissed in part, reversed and vacated in part, and remanded with directions for further proceedings.