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State v. Williams

Court of Appeals of Kansas.
Aug 10, 2012
281 P.3d 1147 (Kan. Ct. App. 2012)

Opinion

Nos. 106,598 106,599.

2012-08-10

STATE of Kansas, Appellee, v. David Lee WILLIAMS, Appellant.

Appeal from Johnson District Court; John P. Bennett, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Johnson District Court; John P. Bennett, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.

MEMORANDUM OPINION


PER CURIAM.

In two separate cases David Lee Williams pled no contest to various charges of making false information, misdemeanor theft, and felony theft. Williams' criminal history included a prior 2004 conviction for identity theft. The district court scored the 2004 conviction as a person felony because the law at the time of the offense classified the conviction as a severity level 7 person felony.

Williams objected. He argued that in 2005 the legislature reclassified the crime of identity theft as a nonperson felony and that the 2005 amendment should be applied retroactively because it was remedial in nature. He also claimed that the classification of his prior crime as a person felony violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and § 1 of the Bill of Rights of the Kansas Constitution. The district court overruled Williams' objection.

At Williams' sentencing hearing, the district court did not address the imposition of attorney fees. However, in the journal entry of sentencing, the district court ordered Williams to pay the court-appointed attorney fees in an unspecified amount.

Williams appeals, claiming the district court erred in calculating his criminal history score and in ordering him to pay court-appointed attorney fees.

Williams' criminal history issue is an issue of law over which our review is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). At the time of Williams' 2004 conviction, identity theft was classified as a severity level 7 person felony. See K.S.A.2004 Supp. 21–4018(c). K.S.A.2010 Supp. 21–4710(d)(9) states that “[p]rior convictions of a crime defined by a statute which has since been repealed shall be scored using the classification assigned at the time of such conviction.” When identity theft was changed from a person felony to a nonperson felony, the previous version of K.S.A. 21–4018 was repealed. See L.2005, ch. 131, sec. 2. Pursuant to the plain language of K.S.A.2010 Supp. 21–4710(d)(9), the district court was required to score Williams' 2004 conviction for identity theft as a person felony. This is consistent with the basic principle that criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004).

In State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), the defendant argued that her out-of-state prior convictions for identity thefts in 2001 and 2002 should have been classified as nonperson felonies because of the 2005 amendment to the identity theft statute. In rejecting the defendant's argument, our Supreme Court cited the general rule that a statute operatives prospectively unless the legislature included language clearly indicating that it is intended to operate retroactively. Further, the 2005 change was substantive rather than merely procedural in nature and therefore was prospective in application. 291 Kan. at 557. Williams argues that his case is distinguishable from Williams because his case does not involve out-of-state convictions. This is a distinction without a meaningful difference. Williams controls.

Next, citing State v. Gaudina, 284 Kan. 354, 160 P.3d 854 (2007), Williams argues that applying the 2005 amendment prospectively violates the Equal Protection Clause of the Fourteenth Amendment because similarly situated defendants are treated differently. In Gaudina, the court stated:

“The guiding principle of the Equal Protection Clause is that similarly situated individuals should be treated alike. [Citations omitted.] This constitutional guarantee does not require that all persons receive identical treatment, but only that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” 284 Kan. at 372.
But the court in Gaudina held that the defendant's equal protection argument failed because he was given equal treatment with all other similarly situated offenders. 284 Kan. at 373.

In State v. Standifer, 24 Kan.App.2d 441, 446, 946 P.2d 637,rev. denied 263 Kan. 890 (1997), this court rejected an equal protection argument based on defendants being treated differently prior to and after the enactment of the Kansas Sentencing Guidelines Act. This court held that prospective application of sentencing statutes satisfied the rational basis test: “The rule that the criminal statute in effect at the time the crime was committed is the penalty to be imposed serves ... legitimate governmental interests and does not violate the Equal Protection Clause of the Fourteenth Amendment or § 1 of the Kansas Constitution Bill of Rights.” 24 Kan.App.2d at 446. Williams' equal protection rights were not violated by prospective application of the 2005 amendment. The district court correctly classified Williams' 2004 conviction as a person felony as provided for in the identity theft statute in effect in 2004.

Finally, Williams argues that the district court erred in ordering him to pay court-appointed attorney fees in an unspecified amount and without considering his ability to pay. The State concedes that this case should be remanded for resentencing as required by K.S.A. 22–4513(b) and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). We agree. In State v. Stevens, 285 Kan. 307, 330, 172 P.3d 570 (2007), the Supreme Court stated that the district court must state a specific amount on the record to meet the requirements of K.S.A. 22–4513: “When the district court initially fails to tax a specific amount of attorney fees claimed by BIDS, then obviously that court is unable to adequately evaluate the amount of such unknown sum that the defendant is able to pay.” We are bound to follow Robinson and Stevens. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010). Accordingly, we vacate the order for attorney fees and remand for a determination of attorney fees consistent with K.S.A. 22–4513(b), Robinson, and Stevens.

Affirmed in part, vacated in part, and remanded with directions.


Summaries of

State v. Williams

Court of Appeals of Kansas.
Aug 10, 2012
281 P.3d 1147 (Kan. Ct. App. 2012)
Case details for

State v. Williams

Case Details

Full title:STATE of Kansas, Appellee, v. David Lee WILLIAMS, Appellant.

Court:Court of Appeals of Kansas.

Date published: Aug 10, 2012

Citations

281 P.3d 1147 (Kan. Ct. App. 2012)