State v. Cummings

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No. 103,343

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHARLES RAYMOND CUMMINGS, III,
Appellant.

SYLLABUS BY THE COURT

1.
At the time of the initial assessment of Board of Indigents' Defense Services
attorney fees under K.S.A. 22-4513, sentencing courts 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. The remedy for a sentencing court's failure to make such explicit findings is to
remand to the sentencing court for such findings. Merely asking the defendant how much
he or she could pay and when he or she could start paying it back does not satisfy the
statutory requirement of K.S.A. 22-4513.

2.
K.S.A. 22-4513 recognizes no exception to follow the statutory mandate of K.S.A.
2010 Supp. 22-3717 just because the defendant was not granted probation and any such
findings may not be binding on the parole board.

3.
Attorneys fees are not restitution but are part of the court costs, and there is no bar
to the requirements of K.S.A. 22-4513 despite a sentence of imprisonment and related
prohibition on restitution.
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4.
K.S.A. 2010 Supp. 22-3717(m)(5) requires the Kansas Parole Board to include
repayment of BIDS attorney fees as a condition of parole or postrelease supervision,
unless repayment would be unworkable. This statute is entirely consistent with the
mandate of K.S.A. 22-4513, which requires the imposition of BIDS attorney fees as part
of sentencing, regardless of whether the defendant is incarcerated or given probation.
There is no conflict between these statutes.

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed March 4,
2011. Vacated in part and remanded with directions.

Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six,
attorney general, for appellee.

Before GREENE, C.J., BUSER and ATCHESON, JJ.

GREENE, C.J.: Charles Raymond Cummings, III, appeals the district court's order
to reimburse his Board of Indigents' Defense Services (BIDS) attorney fees, arguing that
the court failed to make the necessary findings to impose such an order. We agree,
vacate the order of reimbursement, and remand for further proceedings.

Cummings pled guilty to attempted aggravated robbery and was sentenced to 31
months' imprisonment. Before imposing the attorney fees, the district court had the
following conversation with Cummings and his counsel:

"The Court: AID.
"[Defense Counsel]: Two hundred, but considering the fact that he will not be able to pay
that.
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"The Court: Can he pay it when he gets out?
"[Defense Counsel]: Judge, I can't predict.
"The Court: The appellate courts say I shall award AID, so you tell me how much you're
willing to pay per month after you get out, sir.
"[Defense Counsel]: Judge, once again, I don't know if he is able.
"The Court: I am told by the appellate courts I shall award AID, so I'm trying to figure
out. You're going to pay $50 a month?
"[Cummings]: Yes.
"The Court: All right. Good luck to you at the Department of Corrections. All right, sir."

Cummings' sole contention on appeal is that the district court failed to make the
requisite findings to support the reimbursement order under K.S.A. 22-4513.
Interpretation and application of a statute is a question of law over which we exercise
unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), our Supreme Court
directed sentencing courts, "at the time of the initial assessment" of BIDS attorney fees
under K.S.A. 22-4513, to "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." The remedy for a sentencing court's
failure to make such explicit findings is to remand to the sentencing court for such
findings. 281 Kan. at 548; see State v. Copes, 290 Kan. 209, 218, 224 P.3d 571 (2010)
(determining that K.S.A. 22-4513[b] applies when the defendant enters into a plea
agreement, absent an explicit waiver of the rights granted by the statute).

The State argues on appeal that Cummings is not entitled to relief for a plethora of
reasons, all of which have been rejected previously by this court, albeit some contained in
unpublished opinions.

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First, the State argues that the district court's colloquy with Cummings was
sufficient to satisfy the statutory mandate. Under very similar if not virtually identical
facts, a panel of our court has rejected this argument. State v. Knight, 44 Kan. App. 2d
666, 241 P.3d 120 (2010). The Knight panel noted that the district court

"merely asked Knight how much he could pay and when he could start paying it back; it
did not inquire into Knight's financial resources. The trial court also did not consider the
nature of the burden a reimbursement payment would impose on Knight. Finally, the
court did not state how those factors were weighed in coming to the decision to impose a
reimbursement payment on Knight." 44 Kan. App. 2d at 687.

In this case, as in Knight, the district court erred in ordering Cummings to pay BIDS fees
without first making the proper Robinson inquiries and findings on the record.

Next, the State argues that if there was error, it was harmless. The State seeks to
distinguish this case from Robinson by arguing that because Cummings was not granted
probation, there was no need to assess the defendant's financial resources after his
sentence was served, as this finding would not be binding on the parole board. This court,
in unpublished opinions, has specifically rejected this argument. See State v. Dennis, No.
101,313, unpublished opinion filed June 11, 2010 (Kan. App.), rev. denied Aug. 3, 2010;
State v. Geolas, No. 97,949, unpublished opinion filed Feb. 1, 2008 (Kan. App.); see also
State v. Frost, No. 98,433, unpublished opinion filed July 31, 2009 (Kan. App.), rev.
denied Sept. 7, 2010 (rejecting argument that Robinson did not apply).

Next, the State argues that there was no need to assess Cummings' future financial
resources and the nature of the burden imposed because Cummings was sent to prison for
31 months and could not be ordered to pay restitution, citing State v. Bowers, 239 Kan.
417, 721 P.2d 268 (1986). This argument was recently rejected by a panel of our court in
Dennis. There, the State argued harmless error because the defendant went to prison, and
therefore the court could not order her to immediately pay restitution. Slip op. at 2.
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Dennis rejected this argument, finding that although Bowers states that the defendant in
prison cannot be charged with payment of restitution while she is in prison, attorneys fees
are not restitution, but are part of the court costs. The panel found that the Bowers
holding that immediate payment of restitution cannot be required of an incarcerated
prisoner in no way affects the well settled rule of law that upon conviction, a defendant
shall be ordered to pay court costs. Slip op. at 2 (citing State v. DeHerrera, 251 Kan.
143, 155, 834 P.2d 918 [1992]).

Finally, the State argues that K.S.A. 22-3717, which deals exclusively with parole
dispositions, is a more specific statute dealing with the reimbursement of BIDS attorney
fees and, therefore, controls over the more general statute, K.S.A. 22-4513. This
argument has also been rejected by a panel of this court:

"However, before a more specific statute is deemed to control a general statute, a
court must identify a conflict between the statutes. State v. LaMunyon, 259 Kan. 54, Syl.
¶ 1, 911 P.2d 151 (1996). Here, there is no conflict between the statutes. K.S.A. 22-3717
(m)(5) merely requires the Kansas Parole Board to include repayment of BIDS attorney
fees as a condition of parole or postrelease supervision, unless repayment would be
unworkable. This statute is entirely consistent with the mandate of K.S.A. 22-4513,
which requires the imposition of BIDS attorney fees as part of sentencing, regardless of
whether the defendant is incarcerated or given probation." State v. Proctor, No. 97,504,
unpublished opinion filed April 18, 2008 (Kan. App.).

We conclude the district court failed to make the requisite findings to impose
BIDS attorney fees against Cummings, so we vacate the reimbursement order and
remand for further proceedings in accordance with the mandates of Robinson.

Vacated and remanded.