State v. Robinson, No. 91,875.

• Decision Date: 28 April 2006
• Docket Number: No. 91,875.
• Parties: STATE of Kansas, Appellee, v. Timothy A. ROBINSON, II, Appellant.
• Court: Kansas Supreme Court

Page 934

132 P.3d 934

STATE of Kansas, Appellee, v. Timothy A. ROBINSON, II, Appellant.

No. 91,875.

Supreme Court of Kansas.

April 28, 2006.

COPYRIGHT MATERIAL OMITTED

Shawn E. Minihan, assistant appellate defender, argued the cause and was on the briefs for appellant.

Bobby J. Hiebert, Jr., assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

This case arises on petition for review from the Court of Appeals' decision in State v. Robinson, 33 Kan.App.2d 773, 109 P.3d 185 (2005), affirming the district court's assessment of attorney and administrative fees to reimburse the State Board of Indigents' Defense Services (BIDS) against defendant Timothy A. Robinson, II.

We must consider two issues: (1) Whether such an assessment under K.S.A.2005 Supp. 22-4513 is error if a sentencing judge fails to explicitly consider sua sponte at the time of assessment a defendant's ability to pay and the financial burden payment would impose, and (2) whether such an assessment violates a defendant's due process rights if the sentencing judge fails to consider the validity of the fees at the time of assessment.

Robinson was convicted of felony possession of marijuana and misdemeanor possession of drug paraphernalia. A public defender had been appointed to act as his counsel. Robinson was sentenced to 17 months' incarceration for possession and 90 days for drug paraphernalia and placed on 12 months' probation.

Robinson also was ordered to pay $400 in restitution; approximately $150 in court costs; a $50 probation fee; and $845 in other fees, which included a $745 assessment for attorney fees and a $50 BIDS administrative fee. He was required to begin making monthly payments of $203.46, and his failure to make these payments is among several alleged violations of his probation not at issue here.

On appeal, Robinson challenges the $745 attorney fees assessment and the $50 administrative fee. He argues the sentencing judge violated K.S.A.2005 Supp. 22-4513 by failing to explicitly consider Robinson's ability to pay and the financial burden payment would impose at the time of the assessment. He also argues the fees were assessed in violation of due process because the judge also did not consider the validity of the fees. Robinson did not object to the fees at sentencing, and he has not petitioned the sentencing court to waive the fees at any other time.

Standards of Review

Our standard of review of Robinson's statutory challenge is unlimited, because interpretation of statutes raises a question of law. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

To the extent we are called upon to interpret the statute, we first attempt to give effect to the intent of the legislature as expressed through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to express language, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. State v. Post, 279 Kan. 664, 666, 112 P.3d 116 (2005); State v. de la Cerda, 279 Kan. 408, 411, 109 P.3d 1248 (2005). Stated yet another way, a clear and unambiguous statute must be given effect as written. If a statute is clear and unambiguous, then there is no need to resort to statutory construction or employ any of the canons that support such construction. See State v. Sodders, 255 Kan. 79, Syl. ¶ 4, 872 P.2d 736 (1994).

Our standard of review on Robinson's due process claim also is unlimited. See Murphy v. Nelson, 260 Kan. 589, 594, 921 P.2d 1225 (1996).

Statutory Claim

K.S.A.2005 Supp. 22-4513 provides in pertinent part:

"(a) If the defendant is convicted, all expenditures made by the state board of indigents' defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents' defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.

"(b) 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. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment."

Various panels of our Court of Appeals have split on the statutory issue Robinson raises, i.e., whether K.S.A.2005 Supp. 22-4513 requires a sentencing court to consider the defendant's financial circumstances at the time BIDS fees are assessed. See, e.g., State v. Moody, 34 Kan.App.2d 526, 532-34, 120 P.3d 1156 (2005) (defendant's financial resources need not be considered at time of assessment); State v. Ellis, No. 91,037, 2004 WL 1245626, unpublished opinion filed June 4, 2004, rev. denied 278 Kan. 838 (2004) (consideration of defendant's financial resources must occur when BIDS fees assessed).

Likewise, the panel that took up Robinson's case was divided. Judges Tom Malone and Stephen D. Hill denied relief. They considered the provision in K.S.A.2005 Supp. 22-4513 for a defense petition to the sentencing court to waive BIDS fees an adequate protection for a defendant's rights. They ruled that Robinson's appeal on the issue was premature, given his failure to object at sentencing or otherwise petition for waiver. 33 Kan.App.2d at 784, 109 P.3d 185.

Judge Richard Greene dissented, saying the waiver provision could not negate the plain, mandatory language of 22-4513(b): "In determining the amount and method of payment. . ., 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." (Emphasis added.) See 33 Kan.App.2d at 784-86, 109 P.3d 185 (GREENE, J., dissenting).

The State argues first that Robinson's appeal is premature. In its view, because the statute specifically allows Robinson to petition for waiver of the fees, he still has a remedy at the district court level that he has not pursued. We acknowledge that Robinson could have petitioned the district court for relief. However, that procedure is permissive. It does not rule out the possibility of an appeal. We also do not, in this particular case, regard the absence of an objection before the district court as fatal. As we have often stated, we may reach an issue on appeal despite a failure to raise it below when the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case. See State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). In addition, the conflict that has arisen in the Court of Appeals compels us to settle the question to guide litigants, their counsel, and the district courts.

For his part, Robinson opens his arguments by asserting that a sentencing court must sua sponte consider a defendant's ability to pay because the governing statute for BIDS fees, K.S.A.2005 Supp. 22-4513, is analogous to other legislation with similar requirements.

Robinson first compares the BIDS statute to K.S.A.2005 Supp. 21-4603, which authorizes certain assessments against defendants convicted of crimes committed prior to July 1, 1993. Subsection (b) of that statute states:

"In addition to any of the above [dispositions], the court shall order the defendant to reimburse the state general fund for all or part of the expenditures by the state board of indigents' services. . . . 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. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment."

Robinson also calls our attention to K.S.A. 2005 Supp. 21-4610(d)(3). That statute states:

"(d) In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to . . .:

. . . .

(3) reimburse the state general fund for all or a part of the expenditures by the state board of indigents' defense services to provide counsel and other defense services to the defendant. 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. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's...