Opinion
No. 111,206.
2014-10-17
STATE of Kansas, Appellee, v. Mitchell OSUNA, a/k/a James A. Martinez, Appellant.
Appeal from Barton District Court; Ron Svaty, Judge.Adam D. Stolte, 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; Ron Svaty, Judge.
Adam D. Stolte, 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 LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
As part of a plea agreement, Mitchell Osuna pled no contest to a single charge of possession of methamphetamine with intent to distribute. At sentencing, the district court waived his court-appointed attorney fees but required that he pay the application fee associated with applying for that attorney. Osuna appeals imposition of the application fee. Because he did not object to imposition of the fee in the district court either at the time it was assessed or at the time of sentencing and the court clearly considered his financial situation, we find that the district court did not abuse its discretion in waiving one fee but not the other. Moreover, Osuna attempts to raise this issue for the first time on appeal without indicating why we should consider it when it was not raised to the district court. Accordingly, we affirm the decision of the district court.
Factual and Procedural History
The State charged Osuna with several offenses, including possession of methamphetamine with intent to distribute. At his first appearance, Osuna applied for and received a court-appointed defense attorney with the Board of Indigents' Defense Service (BIDS). The court assessed a $100 BIDS application fee, to be paid within 30 days.
Osuna subsequently entered a plea agreement in which he agreed to plead no contest to the possession with intent to distribute charge and the State agreed to dismiss the other three charges. The district court ultimately accepted the plea and convicted Osuna. At sentencing, Osuna requested probation rather than imprisonment in order to deal with a pending immigration issue. Pursuant to the State's recommendation, the district court sentenced Osuna to 18 months' imprisonment. In terms of costs and fees, the district court assessed court costs, a booking fee, KBI laboratory fees, DNA database fee, and the BIDS application fee. However, the district judge waived the court-appointed attorney fees, saying: “I'm going to find that in this situation I do not believe he's going to have an ability to repay, because I don't think he's going to be in this country eventually, so there's no point in ordering him to pay the court-appointed attorney's fees.” Osuna made no objection to the imposition of the other costs and fees.
Osuna filed a timely notice of appeal.
Analysis
The sole issue on appeal involves the assessment of the $100 BIDS application fee. Osuna argues that because the district court determined he lacked the resources to pay the BIDS attorney fees, the court was also required to waive the BIDS application fee. Osuna actually theorizes that the district court did not realize that it could waive the fee, thereby abusing its discretion.
Judges are allowed “considerable discretion in determining the amount of BIDS attorney and application fees.” State v. Phillips, 289 Kan. 28, 42, 210 P.3d 93 (2009). Accordingly, we review the court's finding for an abuse of discretion.
K.S.A.2012 Supp. 22–4529 provides that any defendant who is entitled to court-appointed counsel “shall pay an application fee in the amount of $100.” However, “[i]f it appears to the satisfaction of the court that the payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee.” K.S.A.2012 Supp. 22–4529. The determination of manifest hardship is to be made at the time the defendant applies for court-appointed counsel, in this case at the first appearance. See State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008). If the application fee remains unpaid at the time of sentencing, the district court may include the unpaid fee in its sentencing order without additional findings. 285 Kan. at 853, 176 P.3d 174; see State v. Casady, 289 Kan. 150, 156–57, 210 P.3d 113 (2009); State v. Phillips, 289 Kan. 28, Syl. ¶ 8, 210 P.3d 93 (2009). If, however, “the defendant raises the issue of ability to pay and demonstrates circumstances that preclude payment of the application fee, the district court may reduce or waive a previously imposed application fee.” Casady, 289 Kan. at 158–59, 210 P.3d 113.
In this case, at Osuna's first appearance, the district court ordered him to pay the application fee within 30 days. There is nothing in the record to suggest that he claimed any manifest hardship at that time or that the court reduced or waived the fee based on his financial affidavit. Apparently, Osuna did not comply, and no action was taken to enforce the order prior to sentencing. Nevertheless, an order was in place that Osuna never attempted to modify. The sentencing court was not required to make any further inquiry.
At the time of sentencing, the court ordered Osuna to pay the costs of the actions, including the $100 BIDS application fee. The court then inquired of counsel what the court-appointed attorney fees were, and counsel responded that they totaled $1,618, which was above the $1,050 maximum allowable for a level 2 nontried felony. Counsel then stated that since Osuna was going to prison, he was claiming hardship and asking that repayment be waived. The district court granted that request and waived payment of the attorney fees. It does not appear that Osuna requested, at the time of sentencing, that the BIDS application fee be reduced or modified. There does not seem to be any confusion regarding the court's order because the sentencing journal entry, signed by all parties, clearly indicates that payment of the attorney fees was waived but not the other costs and fees, including the BIDS application fee. Nor did Osuna ask that the court modify its order assessing the fee.
As in Casady, the district court clearly considered Osuna's financial circumstances because it declined to impose attorney fees. There is no indication, as Osuna suggests, that the district court believed it could not waive the application fee. As in Casady, it simply chose to waive one fee and not the other. See 289 Kan. at 151, 210 P.3d 113. We cannot find that this was an abuse of discretion, particularly when Osuna never argued to the contrary.
Moreover, issues not raised before the trial court generally cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (cautioning future litigants to comply with rule). Osuna raises this legal theory for the first time on appeal and has failed to explain why it should be considered.
The decision of the district court is affirmed.