State v. Phillips

• Decision Date: 19 June 2009
• Docket Number: No. 96,754.,No. 97,548.,96,754.,97,548.
• Citation: 210 P.3d 93
• Parties: STATE of Kansas, Appellee, v. Robert G. PHILLIPS, Appellant. and State of Kansas, Appellee, v. Alan Wenzel, Appellant.
• Court: Kansas Supreme Court

210 P.3d 93

STATE of Kansas, Appellee, v. Robert G. PHILLIPS, Appellant. and State of Kansas, Appellee, v. Alan Wenzel, Appellant.

No. 96,754.

No. 97,548.

Supreme Court of Kansas.

June 19, 2009.

Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause on behalf of the appellants and was on the brief for appellant Wenzel, and Carl Folsom, III, of the same office, was on the brief for appellant Phillips.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee in case No. 96,754.

Amanda G. Voth, assistant district attorney, argued the cause, Karen S. Smart, assistant district attorney, Keith E. Schroeder, district attorney, and Paul J. Morrison, attorney general, were on the brief for appellee in case No. 97,548.

The opinion of the court was delivered by LUCKERT, J.:

In this opinion we address the question of whether a district judge may validly order a defendant who has been convicted of a felony to pay a docket fee, a booking fee, Board of Indigents' Defense Services (BIDS) attorney fees, and a BIDS application fee if the judge did not announce the order in open court during the sentencing proceeding. The defendants in this consolidated appeal argue that imposing these fees in a journal entry of judgment without an oral announcement violates K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a), which require felony criminal judgments to be rendered and sentences to be imposed in open court. We reject this argument, finding these fees are not part of the sentence because they are not imposed for punishment but are taxed as costs in order to recoup expenses incurred by a unit of government in processing, prosecuting, or providing services for the defense of a criminal case. Further, although the fees are a judgment, K.S.A. 22-3803 provides that costs are to be taxed in a statement of costs issued at the conclusion of a criminal proceeding. Consequently, costs need not be stated as part of the judgment in open court, although the better practice is to do so.

Nevertheless, we agree with the defendants' alternative argument that due process requires a judge to make the findings necessary to support the allocation and assessment of any cost where the assessment or amount is not mandatory, i.e., where the legislature has granted judges with discretion to impose costs or to determine the amount of costs. Because findings were not made regarding the discretionary amount of BIDS fees in Wenzel's case, the BIDS's orders in his case are vacated and the case is remanded to the district court. In Robert G. Phillips' case, the district judge made adequate findings, and the imposition of costs is affirmed.

Procedural Background

The question of the validity of the various orders to pay costs was raised in separate petitions seeking this court's discretionary review of two Court of Appeals opinions: State v. Wenzel, 39 Kan.App.2d 194, 177 P.3d 994 (2008), and State v. Phillips, No. 96,754, 172 P.3d 1222, unpublished opinion filed December 28, 2007. We granted review of questions related to the written taxation of costs, denied review on other questions presented in each appeal, and consolidated the cases for proceedings before this court.

In Wenzel, a Court of Appeals panel held that orders to pay BIDS attorney fees and the BIDS application fee may be included in a journal entry of judgment even if not announced from the bench because the assessment of such fees is mandatory under K.S.A. 22-4513 (fee for counsel and defense services) and K.S.A. 22-4529 (application fee) and the requirement of paying these fees was not part of Wenzel's punishment for a felony conviction of driving under the influence. Nevertheless, because K.S.A. 21-4603d(i) and K.S.A. 22-4529 require a district judge to consider a defendant's ability to pay when imposing BIDS attorney fees and BIDS application fees, respectively, and the record does not reflect that the district judge did so, the Court of Appeals vacated the fees and remanded with directions to consider Wenzel's ability to pay in deciding if the fee should be imposed and, if so, how much Wenzel should be required to pay. 39 Kan. App.2d at 200-02, 177 P.3d 994.

In State v. Phillips, No. 96,754, 2007 WL 4571093, unpublished opinion filed December 28, 2007, a different panel of the Court of Appeals similarly found no error in assessing the docket fee, a booking fee, and the BIDS application fee in the journal entry because "court costs and other court-ordered fees are not punitive in nature" and they were not part of Phillips' criminal sentence for burglary and felony theft. The Court of Appeals affirmed all of the fees imposed against Phillips.

These holdings are consistent with decisions of some other panels of the Court of Appeals. E.g., State v. Loggins, 40 Kan. App.2d 585, 194 P.3d 31 (2008); State v. Bale, 39 Kan.App.2d 655, 182 P.3d 1280 (2008); State v. Patterson, No. 99,759, 2009 WL 863111, unpublished opinion filed March 27, 2009; State v. Rose, No. 98,902, 2008 WL 4849440, unpublished opinion filed November 7, 2008; State v. Clark, No. 97,442, 2008 WL 3852162, unpublished opinion filed August 15, 2008; State v. Bench, No. 98,151, 2008 WL 2891073, unpublished opinion filed July 25, 2008; State v. Stevens, No. 97,640, 2008 WL 2510176, unpublished opinion filed June 20, 2008; State v. Proctor, No. 97,504, 2008 WL 1847637, unpublished opinion filed April 18, 2008; State v. Bradley, No. 94,810, 2007 WL 2239216, unpublished opinion filed August 3, 2007, rev. denied 285 Kan. 1175 (2008); State v. Littleton, No. 94,611, 2006 WL 2043104, unpublished opinion filed July 21, 2006, rev. denied 282 Kan. 794 (2006); State v. Harley, No. 93,349, 2005 WL 2665768, unpublished opinion filed October 14, 2005, rev. denied 281 Kan. 1380 (2006).

Other panels have reached the opposite conclusion, however, and have reversed orders to pay fees if the district judge did not pronounce the fees as part of a defendant's sentence. See, e.g., State v. Whillock, 38 Kan.App.2d 431, 436, 168 P.3d 56 (2007); State v. Bedell, 36 Kan.App.2d 870, 878, 146 P.3d 1096 (2006), rev. denied 283 Kan. 932 (2007); State v. Miller, No. 96,025, 2007 WL 2695826, unpublished opinion filed September 14, 2007, rev. denied 285 Kan. 1176 (2008).

We granted the petitions for review in these cases to resolve this conflict in the Court of Appeals' decisions.

Standards of Review

The issue of whether a district judge must announce an order to pay fees at the sentencing hearing is dictated by statutory requirements and, as a result, requires our interpretation of various statutes relating to sentencing procedures and the imposition of costs. See State v. Scaife, 286 Kan. 614, 625, 186 P.3d 755 (2008) (BIDS application fee); State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006) (BIDS attorney fee); State v. Granville, 26 Kan. 158, 160 (1881) (noting appellant's argument that costs in criminal cases were unknown at common law and can be imposed only if authorized by statute).

The interpretation of a statute presents a question of law over which appellate courts exercise unlimited review. See Scaife, 286 Kan. at 625, 186 P.3d 755. When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied ___ U.S. ___, 129 S.Ct. 36, 172 L.Ed.2d 239 (2008). If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. In re Adoption of G.L.V., 286 Kan. at 1041, 190 P.3d 245; State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768-69, 69 P.3d 1087 (2003).

Also, our standard of review on the defendants' due process claim is unlimited. Robinson, 281 Kan. at 540, 132 P.3d 934; Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).

Sentence in Open Court

Both defendants base their argument on the requirements of K.S.A. 22-3405, which provides in part: "(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law." (Emphasis added.) Similarly, K.S.A. 2008 Supp. 22-3424(a) states: "The judgment shall be rendered and sentence imposed in open court."

As the defendants argue, K.S.A. 22-3405 and K.S.A. 2008 Supp. 22-3424(a) clearly require that a defendant in a felony case be present in open court for the imposition of sentence. A corollary to this rule is that "[t]he court's judgment and sentence in a criminal case do not derive their effectiveness from the journal entry, or from any act of the clerk; they are effective when announced." State v. Royse, 252 Kan. 394, 397, 845 P.2d 44 (1993). Stated another way: "The journal entry `is thus a record of the sentence imposed; but the actual sentencing occurs when the defendant appears in open court and the judge orally states the terms of the sentence.'" Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007). The rationale for these rules is that announcing the sentence in the defendant's presence "protects the defendant's rights, as `[t]he defendant is personally present [when the sentence is imposed], and thus knows that at that moment he or she has...