State v. Stevenson

• Decision Date: 17 April 2015
• Docket Number: 111,022,111,023.
• Citation: 347 P.3d 239 (Table)
• Parties: STATE of Kansas, Appellee, v. Daniel E. STEVENSON, Appellant.
• Court: Kansas Court of Appeals

347 P.3d 239 (Table)

STATE of Kansas, Appellee

v.Daniel E. STEVENSON, Appellant.

111,022

111,023.

Court of Appeals of Kansas.

April 17, 2015.

Review Denied October 9, 2015.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

In this consolidated appeal, Daniel E. Stevenson appeals his sentences in two cases. He first argues that the district court erred by denying his motions for durational or dispositional departure. Next, he argues that the district court erred by ordering him to pay Board of Indigents' Defense Services (BIDS) attorney fees without considering his ability to pay such fees. Finally, he argues that he is entitled to an order nunc pro tunc correcting an error in the written journal entry of judgment regarding the amount of BIDS attorney fees actually imposed at sentencing.

Facts

Stevenson entered into a plea agreement relating to charges against him in two Shawnee County District Court cases. In case number 12–CR–2467, Stevenson pled no contest to one count of possession of methamphetamine, a drug severity level 5 felony. In case number 13–CR–143, he pled no contest to one count of aggravated assault with a deadly weapon, a severity level 7 person felony, and one count of possession of marijuana, a class A nonperson misdemeanor. The district court judge accepted Stevenson's pleas and convicted him of all three counts.

Prior to sentencing, Stevenson filed motions in both cases seeking durational or dispositional departure sentences. A single sentencing hearing was held for both cases. In case 13–CR–143, the district court sentenced Stevenson to a controlling sentence of 29 months' imprisonment based on a criminal history score of B. The court also ordered Stevenson to pay $650 in BIDS attorney fees. In case 12–CR–2467, the district court sentenced Stevenson to 40 months' imprisonment based on a criminal history score of A. No BIDS attorney fees were assessed in that case. After announcing the underlying sentences in each case, the district court denied Stevenson's departure motions. Stevenson appeals his sentence in both cases.

Analysis

Departure motions

Stevenson first argues that the district court improperly denied his departure motions. But the State argues that this court lacks jurisdiction to decide this issue.

The right to appeal is entirely statutory, and the limits of appellate jurisdiction are defined by the legislature. State v. Berreth, 294 Kan. 98, 110, 273 P.3d 752 (2012). Appellate courts are statutorily prohibited from reviewing any sentence that comes within the presumptive sentence for a crime. K.S.A.2014 Supp. 21–6820(c)(1). In case 13–CR143, Stevenson's 29–month sentence was the standard presumptive sentence, given Stevenson's criminal history score and the severity level of the crime. See K.S.A.2014 Supp. 21–6804(a). Similarly, in case 12–CR–2467, the district court imposed the standard presumptive sentence within the appropriate grid box for a drug severity level 5 felony. See K.S.A.2014 Supp. 21–6805(a).

Because both of Stevenson's sentences were within the presumptive sentence for the crimes charged, this court is without jurisdiction to review the district court's denial of his departure motions.

BIDS attorney fees

Stevenson argues the district court violated K.S.A. 22–4513(b) when it ordered him to pay $650 in BIDS attorney fees. Specifically, Stevenson complains that the court improperly failed to consider his financial resources and the nature of the burden the payment of those fees will impose before entering its order. Stevenson did not object to the district court's failure in this regard, but this does not preclude him from raising the issue for the first time on appeal. See State v. Knight, 44 Kan.App.2d 666, 687, 241 P.3d 120 (2010), rev. denied 292 Kan. 967 (2011). Review of Stevenson's claim of error requires the interpretation of a statute, which raises a question of law over which this court has unlimited review. State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006).

K.S.A. 22–4513(a) requires a defendant represented by appointed counsel and subsequently convicted to reimburse the State for the expenditures made by BIDS. K.S.A. 22–4513(b) provides: “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.” The Kansas Supreme Court has interpreted K.S.A. 22–4513(b) to mean that—at the time BIDS attorney fees are assessed—the sentencing court must explicitly consider a defendant's financial resources and the nature of the burden payment will impose and thereafter must state on the record how those factors were weighted in its decision. Robinson, 281 Kan. at 546. A district court's failure to do so is reversible error. State v. Voyles, 284 Kan. 239, 260, 160 P.3d...