Opinion
111,022 111,023.
04-17-2015
STATE of Kansas, Appellee, v. Daniel E. STEVENSON, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Daniel E. Stevenson appeals his sentences in two cases. He first argues that the district court erred by denying his motions for durational or dispositional departure. Next, he argues that the district court erred by ordering him to pay Board of Indigents' Defense Services (BIDS) attorney fees without considering his ability to pay such fees. Finally, he argues that he is entitled to an order nunc pro tunc correcting an error in the written journal entry of judgment regarding the amount of BIDS attorney fees actually imposed at sentencing.
Facts
Stevenson entered into a plea agreement relating to charges against him in two Shawnee County District Court cases. In case number 12–CR–2467, Stevenson pled no contest to one count of possession of methamphetamine, a drug severity level 5 felony. In case number 13–CR–143, he pled no contest to one count of aggravated assault with a deadly weapon, a severity level 7 person felony, and one count of possession of marijuana, a class A nonperson misdemeanor. The district court judge accepted Stevenson's pleas and convicted him of all three counts.
Prior to sentencing, Stevenson filed motions in both cases seeking durational or dispositional departure sentences. A single sentencing hearing was held for both cases. In case 13–CR–143, the district court sentenced Stevenson to a controlling sentence of 29 months' imprisonment based on a criminal history score of B. The court also ordered Stevenson to pay $650 in BIDS attorney fees. In case 12–CR–2467, the district court sentenced Stevenson to 40 months' imprisonment based on a criminal history score of A. No BIDS attorney fees were assessed in that case. After announcing the underlying sentences in each case, the district court denied Stevenson's departure motions. Stevenson appeals his sentence in both cases.
Analysis
Departure motions
Stevenson first argues that the district court improperly denied his departure motions. But the State argues that this court lacks jurisdiction to decide this issue.
The right to appeal is entirely statutory, and the limits of appellate jurisdiction are defined by the legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Appellate courts are statutorily prohibited from reviewing any sentence that comes within the presumptive sentence for a crime. K.S.A.2014 Supp. 21–6820(c)(1). In case 13–CR143, Stevenson's 29–month sentence was the standard presumptive sentence, given Stevenson's criminal history score and the severity level of the crime. See K.S.A.2014 Supp. 21–6804(a). Similarly, in case 12–CR–2467, the district court imposed the standard presumptive sentence within the appropriate grid box for a drug severity level 5 felony. See K.S.A.2014 Supp. 21–6805(a).
Because both of Stevenson's sentences were within the presumptive sentence for the crimes charged, this court is without jurisdiction to review the district court's denial of his departure motions.
BIDS attorney fees
Stevenson argues the district court violated K.S.A. 22–4513(b) when it ordered him to pay $650 in BIDS attorney fees. Specifically, Stevenson complains that the court improperly failed to consider his financial resources and the nature of the burden the payment of those fees will impose before entering its order. Stevenson did not object to the district court's failure in this regard, but this does not preclude him from raising the issue for the first time on appeal. See State v. Knight, 44 Kan.App.2d 666, 687, 241 P.3d 120 (2010), rev. denied 292 Kan. 967 (2011). Review of Stevenson's claim of error requires the interpretation of a statute, which raises a question of law over which this court has unlimited review. State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006).
K.S.A. 22–4513(a) requires a defendant represented by appointed counsel and subsequently convicted to reimburse the State for the expenditures made by BIDS. K.S.A. 22–4513(b) provides: “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.” The Kansas Supreme Court has interpreted K.S.A. 22–4513(b) to mean that—at the time BIDS attorney fees are assessed—the sentencing court must explicitly consider a defendant's financial resources and the nature of the burden payment will impose and thereafter must state on the record how those factors were weighted in its decision. Robinson, 281 Kan. at 546. A district court's failure to do so is reversible error. State v. Voyles, 284 Kan. 239, 260, 160 P.3d 794 (2007).
When the district court sentenced Stevenson in case 13–CR–143, it ordered Stevenson to pay $650 in BIDS attorney fees but did not mention his financial resources or the burden that paying such a sum would impose on him. By failing to identify on the record the factors it considered and the weight it gave to each factor in ordering Stevenson to pay fees, the district court failed to comply with its statutory duty as construed by the court in Robinson. The correct remedy for a district court's failure in this regard is remand so the court can make the proper findings required by K.S.A. 22–4513(b). Knight, 44 Kan.App.2d at 686–87.
Journal entry
Finally, Stevenson argues that case 13–CR–143 must be remanded with directions for the district court to enter an order nunc pro tunc correcting the journal entry of judgment. The original journal entry of judgment stated that Stevenson was to pay only $600 in BIDS attorney fees rather than the $650 that was ordered by the district court at sentencing. The district court later entered an order nunc pro tunc amending the written journal entry so that it reflected the correct $650 amount. Then, a second nunc pro tunc order was filed that stated that the amount of BIDS attorney fees imposed was $675. As a result, the journal entry of judgment, as amended by the second nunc pro tunc order, remains in conflict with the district court judge's oral ruling at sentencing.
“A journal entry that imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.” Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007). Therefore, a remand is clearly appropriate here. As discussed above, it is necessary to remand this case so that the district court may make the proper findings under K.S.A. 22–4513(b). It is possible that the amount of BIDS attorney fees Stevenson must pay will change after the district court considers his financial resources. Whether or not the amount changes, the district court should ensure the next written journal entry correctly reflects the amount of BIDS attorney fees actually imposed.
The appeal from the sentence imposed in case 12–CR–2467 is dismissed for lack of jurisdiction. The appeal from the order requiring Stevenson to pay a BIDS fee in case 13–CR–143 is remanded to the district court for findings pursuant to K.S.A. 22–4513(b) and the filing of a journal entry consistent with the amount of BIDS fees ultimately ordered to be reimbursed.