City of Wichita v. Lucero, 69839

• Decision Date: 27 May 1994
• Docket Number: No. 69839,69839
• Citation: 255 Kan. 437,874 P.2d 1144
• Parties: CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, v. James LUCERO, Appellee.
• Court: Kansas Supreme Court

Page 1144

874 P.2d 1144

255 Kan. 437

CITY OF WICHITA, Kansas, a Municipal Corporation, Appellant, v. James LUCERO, Appellee.

No. 69839.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. Basic principles and guidelines to be followed in considering the constitutionality of a statute or ordinance are stated and applied.

2. Statutes and ordinances which authorize enhanced penalties based upon prior convictions of criminal conduct do not violate the Due Process and Equal Protection Clauses of the United States Constitution or the Kansas Constitution Bill of Rights.

3. The imposition of a fine, costs, and an order of restitution against an indigent criminal defendant is not inherently unconstitutional. However, before an indigent defendant may be incarcerated for failure to pay a fine, costs, or restitution it must be shown not only that the defendant is indigent but that the defendant has willfully refused to make such payment or has failed to make sufficient bona fide efforts to legally acquire the resources to pay. If an indigent defendant cannot make such payments despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment adequate to meet the State's interests in punishment and deterrence, such as community service.

4. Basic principles relating to constitutional attacks upon statutes and ordinances based upon assertions of vagueness are stated and applied.

5. Section 5.66.055 of the Code of the City of Wichita is not unconstitutionally vague and does not violate the due process and equal protection clauses of the United States Constitution and the Kansas Constitution Bill of Rights.

Sharon L. Chalker, Asst. City Atty., argued the cause, and Gary E. Rebenstorf, City Atty., was with her on the briefs, for appellant.

Alice L. Knetsch, Law Offices of S.A. (Tim) Scimeca, Wichita, argued the cause and was on the brief, for appellee.

HOLMES, Chief Justice.

This is an appeal by the City of Wichita (City) from the district court's ruling that the mandatory minimum fine provision for repeat offenders, as set forth in § 5.66.055(b) of the Code of the City of Wichita, is unconstitutional. This appeal is taken upon a question reserved by the City pursuant to K.S.A.1993 Supp. 22-3602(b)(3).

The facts are not in dispute. James Lucero was arrested on December 2, 1992, for violating § 5.66.055(a)(1) of the Code of the City of Wichita. The ordinance makes it unlawful for any person to intentionally interfere with or obstruct the conduct of a lawful business. The defendant was arrested while participating in a pro-life demonstration at a women's clinic located in Wichita.

On February 18, 1993, the defendant appeared pro se before the Wichita Municipal Court and was found guilty of violating § 5.66.055(a)(1). He was ordered to pay the mandatory minimum fine of $250, serve six months in jail, and pay court costs. On February 25, 1993, the defendant appealed his conviction to the Sedgwick County District Court. On April 19, 1993, the defendant, who again appeared pro se, was found guilty in a jury trial of violating the ordinance.

On April 20, 1993, the defendant was sentenced by the district court. During sentencing, Assistant City Attorney Sharon Chalker informed the court of the defendant's prior conviction under the same ordinance. The City recommended that the defendant be fined the mandatory minimum fine of $250 and be placed on six months' probation with credit for time served. The City further recommended that the defendant be required to perform community service in lieu of paying the fine if the court found the defendant indigent. The court examined the defendant as to his assets, employment, and possible indigency. The defendant denied having any assets or employment. The court then proceeded to sentence the defendant, stating:

"Here's the sentence: the jury has found you guilty and I've accepted their verdict. I'll enter the same as a judgment finding you guilty of having violated the City's ordinance numbered 5.66.055(1).

"I will impose a sentence of 90 days in the Sedgwick County Adult Detention Facility and a fine of $250 and I'll find that you are indigent as that term is used in the Kansas Code of Criminal Procedure and to follow the dictates of the City's ordinance would be violative of due process of law as set out in [Sections] 1 and 2 of the Kansas Constitution [Bill of Rights] and applicable U.S. Constitution provisions.

"You are, therefore, paroled outright on time served."

The journal entry signed by the trial judge provides in pertinent part:

"THEREUPON, a Jury having been duly impaneled, having heard the statements of Plaintiff's counsel and the Defendant, the evidence presented, instructions of the Court and having duly deliberated, returned their verdict, finding the Defendant guilty of Interference with a Lawful Business contrary to Section 5.66.055 of the Code of the City of Wichita.

"THEREUPON, the Court having received and accepted the verdict of the jury does proceed to sentence the Defendant on the 20th day of April, 1993.

"THEREUPON, the Court, after inquiring of the defendant of his financial status, determines that he is indigent within the meaning of the Kansas Criminal Code.

"IT IS FURTHER ORDERED that the mandatory fine imposed in the City of Wichita's Ordinance Section 5.66.055(b)(2) is unconstitutional in violation of the defendant's constitutional rights as enumerated in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution.

"IT IS THE SENTENCE OF THE COURT AND IT IS HEREBY ORDERED AND ADJUDGED that the defendant be imprisoned for a period of 90 days in the Sedgwick County Detention Facility.

"IT IS FURTHER ORDERED that the defendant receive credit for time served and is to be paroled outright.

"IT IS SO ORDERED."

The City appealed and states the question on appeal as follows:

"Did the District Court err in holding that the mandatory fines, as set forth in Section 5.66.055(b) of the Code of the City of Wichita, violated the defendant's constitutional rights as set forth in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution?

The Code of the City of Wichita § 5.66.055, entitled "Interference with the conduct of a lawful business," provides:

"(a) Interference with the conduct of a lawful business is:

"(1) Intentional conduct at or in any building owned, operated or controlled by a private individual or corporation that causes an obstruction to or interference with the free and uninterrupted use of such property as a lawful business by any employee, patron, patient or other invitee on such premises, or which prevents the free and uninterrupted ingress, egress or regress therein, thereon or thereto;

"(2) Wilfully or intentionally refusing or failing to leave any such building owned, operated or controlled by a private individual or corporation upon being requested to do so by the owner thereof, any law enforcement officer or other authorized individual.

"(b) Any person who violates any of the provisions of this chapter within the corporate limits of the city shall be deemed guilty of a misdemeanor and upon conviction hereof shall be punished by the following fines:

"(1) Upon a first conviction, not more than two thousand five hundred dollars;

"(2) Upon a second conviction, not less than two hundred fifty dollars nor more than two thousand five hundred dollars;

"(3) Upon a third conviction, not less than five hundred dollars nor more than two thousand five hundred dollars;

"(4) Upon a fourth conviction, not less than seven hundred fifty dollars nor more than two thousand five hundred dollars;

"(5) Upon a fifth conviction, not less than one thousand dollars nor more than two thousand five hundred dollars;

"(6) Upon a sixth conviction, not less than one thousand two hundred fifty dollars nor more than two thousand five hundred dollars;

"(7) Upon a seventh conviction, not less than one thousand five hundred dollars nor more than two thousand five hundred dollars;

"(8) Upon a eighth conviction, not less than one thousand seven hundred fifty dollars nor more than two thousand five hundred dollars;

"(9) Upon a ninth conviction, not less than two thousand dollars nor more than two thousand five hundred dollars;

"(10) Upon a tenth conviction, not less than two thousand two hundred fifty dollars nor more than two thousand five hundred dollars;

"(11) And upon an eleventh or subsequent conviction, not less than two thousand five hundred dollars.

"In addition to the preceding fines such person may be punished by a term of imprisonment which shall not exceed six months, or by both such fines and imprisonment.

"(c) The imposition of the fines established in subparagraphs (b)(2) through (11) herein shall be mandatory and the court shall not waive, remit, suspend, parole or otherwise excuse the payment thereof except that the court may order that the defendant perform community service specified by the court but such an order shall be entered only after the court has required the defendant to file an affidavit of such defendant's financial condition as required by Section 1.04.210(e) and amendments thereto, and the court has found from the information contained in the affidavit that the defendant is financially unable to pay the fines imposed herein.

"(d) For the purposes of determining whether a conviction is a first or subsequent conviction in sentencing under this section, conviction includes being convicted of a violation of this section, and it is irrelevant whether an offense occurred before or after conviction for a previous offense."

During sentencing, the court was advised that the defendant had one prior conviction under the same ordinance and therefore was subject to a mandatory minimum fine of not less than $250 under § 5.66.055(b)(2) of the ordinance. Based upon its determination that the defendant was indigent, the court paroled ...