State v. Copes
| Decision Date | 26 February 2010 |
| Docket Number | No. 99,403.,99,403. |
| Citation | 224 P.3d 571 |
| Parties | STATE of Kansas, Appellee, v. Mary Jean COPES, Appellant. |
| Court | Kansas Supreme Court |
Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the brief for appellant.
David R. Maslen, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.
On review of a Court of Appeals' decision, we consider two issues of first impression for this court. Both arise from the district court's failure to consider a defendant's financial resources when imposing attorney fees and a fine.
First, can a defendant waive a K.S.A. 22-4513(b) requirement that a district court take into consideration "the financial resources of the defendant and the nature of the burden that payment of such sum will impose" in setting attorney fees in Board of Indigents' Defense Services (BIDS) cases and, if so, can that waiver occur when a plea agreement states that the defense attorney will recommend payment of costs and appointed attorney fees in an "amount to be determined"? The Court of Appeals held there could be a waiver through a plea agreement and that there was a waiver in this case. State v. Copes, No. 99,403, unpublished opinion, filed December 19, 2008. While we agree a defendant can waive his or her statutory rights under K.S.A. 22-4513(b), we hold there was not an intentional relinquishment of a known right in this case because the plea agreement merely states defense counsel will recommend that the defendant pay attorney fees and does not contain an explicit waiver of rights.
The second issue is whether a district court must consider a defendant's financial resources before imposing a fine for a conviction of driving under the influence of alcohol (DUI), fourth offense, pursuant to K.S.A. 2009 Supp. 8-1567(g)(1)? According to the defendant, the answer to this question is "yes" because K.S.A. 21-4607(3) states: "In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose." The Court of Appeals rejected this argument and answered the question "no," concluding K.S.A. 21-4607(3) is a general statute and is not applicable in light of the more specific applicability of K.S.A.2009 Supp. 8-1567(g)(1), which requires a $2,500 fine for a fourth or subsequent DUI conviction. State v. Copes, slip op. at 5-6. On review of that decision, we agree with the Court of Appeals' conclusion that the mandatory nature of the fine means financial resources need not be considered in setting the fine amount. Nevertheless, we disagree with the ultimate conclusion that K.S.A. 21-4607(3) has no application because the statute also applies to the determination of the method of payment, and K.S.A.2009 Supp. 8-1567(j) provides an alternative method of payment by allowing the district court to order payment of a DUI fine through community service.
On November 3, 2005, Copes entered a no contest plea to DUI, fourth offense, pursuant to K.S.A.2005 Supp. 8-1567(g). The district court sentenced Copes to 12 months in jail, with a postrelease supervision term of 12 months. In addition, the court ordered Copes to pay $350 in BIDS attorney fees and assessed a mandatory fine of $2,500 pursuant to K.S.A.2005 Supp. 8-1567(g). On direct appeal, Copes argued the district court erred by requiring her to pay the BIDS attorney fees and by imposing the $2,500 fine without first determining on the record whether she had the ability to pay. In State v. Copes, the Court of Appeals affirmed the district court.
Regarding the BIDS attorney fees, the Court of Appeals acknowledged that in State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), this court held, pursuant to K.S.A. 22-4513(b), the sentencing court "must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court's decision." (Emphasis added.) Copes, slip op. at 3. The sentencing transcript indicates the district court did not consider any of the factors listed in K.S.A. 22-4513.
The Court of Appeals concluded, however, that Copes agreed to pay BIDS attorney fees as part of the plea agreement. Although the plea agreement did not specify an exact amount of BIDS attorney fees, Copes agreed that at sentencing her attorney "will recommend" that she be required to pay the costs and appointed attorney fees in "the amount to be determined." The amount of $350 was written into the journal entry at sentencing. Following the rationale of State v. Perry, 39 Kan.App.2d 700, 183 P.3d 12, rev. denied 286 Kan. 1184 (2008), the Court of Appeals held that Copes effectively waived her statutory rights under Robinson and K.S.A. 22-4513. Copes, slip op. at 3.
Regarding the district court's imposition of a $2,500 fine without first considering Copes' financial resources, the Court of Appeals held that under the circumstances—where the fine was mandatory and not discretionary— the district court was not required to make findings about Copes' ability to pay. The panel noted that K.S.A. 21-4607(3)—which requires a district court determining the amount and method of payment of a fine to "take into account the financial resources of the defendant and the nature of the burden that its payment will impose"—is a general statute. The more specific statute, K.S.A. 2009 Supp. 8-1567, controls over the general statute, and K.S.A.2009 Supp. 8-1567(g)(1) mandates the imposition of a $2,500 fine for a fourth or subsequent DUI offense and does not contain a provision for waiver of the fine. The Court of Appeals held that in this situation the district court was not required to make the findings under Robinson and K.S.A. 21-4607(3). Copes, slip op. at 5-6.
This court granted the petition for review filed by Copes.
Both issues in this appeal involve statutory interpretation, and statutory interpretation is a question of law over which appellate courts have unlimited review. See State v. Raschke, 289 Kan. 911, Syl. ¶ 3, 219 P.3d 481 (2009) (); Robinson, 281 Kan. at 539, 132 P.3d 934 (considering BIDS fees). Because a question of law is presented and that question is determinative of the appellate issues (and hence the case), we are able to consider Copes' argument even though she did not raise the issues before the district court. See State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008); see also Raschke, 289 Kan. 911, Syl. ¶ 2, 219 P.3d 481 (); Robinson, 281 Kan. 538, 132 P.3d 934 ().
First, Copes argues that the district court erred by ordering her to reimburse BIDS attorney fees without first considering her financial resources and the burden such payment will impose as required by K.S.A. 22-4513(b). See Robinson, 281 Kan. 538, 132 P.3d 934. In response, the State argues that Copes effectively contracted away her rights under K.S.A. 22-4513(b) in her plea agreement. Accordingly, the district court was not required to consider Copes' financial resources or the burden paying the BIDS attorney fees would have on her.
K.S.A. 22-4513(a) requires that BIDS attorney fees "shall be taxed" against the defendant and "shall be enforced" as judgments for payment of money in civil cases. In setting the amount of the fee, K.S.A. 22-4513(b) requires the district court to take into consideration "the financial resources of the defendant and the nature of the burden that payment of such sum will impose." Applying that requirement, this court has held that a district court must consider these factors on the record at the time the fee is assessed. Robinson, 281 Kan. at 546, 132 P.3d 934; see State v. Phillips, 289 Kan. 28, 43, 210 P.3d 93 (2009).
According to the Court of Appeals, these same rules do not apply if a defendant waives his or her statutory rights under Robinson and K.S.A. 22-4513(b) in a plea agreement. Copes did so, according to the Court of Appeals, because her plea agreement stated that "[a]t the time of sentencing, my attorney will recommend . . . [t]hat I be required to pay the costs of this action, and pay appointed counsel fees in the amount to be determined." In so holding, the panel relied upon Perry, 39 Kan.App.2d 700, 183 P.3d 12.
In Perry, a plea agreement required the defendant to pay "`the costs of this action, and pay appointed counsel fees in the amount of $150.'" Perry, 39 Kan.App.2d at 700, 183 P.3d 12. In finding this agreement amounted to a waiver of rights granted by K.S.A 22-4513(b), the Court of Appeals first observed that a plea agreement is akin to a contract. Perry, 39 Kan.App.2d at 702, 183 P.3d 12 (citing State v. Wills, 244 Kan. 62, 68-69, 765 P.2d 1114 [1988]). Next, the court noted that both parties to a plea agreement are bound by its terms, and Kansas appellate courts have consistently forced the parties to abide by their agreement. See, e.g., State v. Ratley, 253 Kan. 394, Syl. ¶ 5, 855 P.2d 943 (1993). The Perry court observed that Robinson recognized a criminal defendant's statutory right to have the district court take into account the defendant's financial resources and the nature of the burden that payment will impose before determining the amount and method of BIDS attorney fee reimbursement. But in a plea agreement a "defendant waives...
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