State v. Campbell

NOT DESIGNATED FOR PUBLICATION

No. 120,406

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RODNEY DEE CAMPBELL,
Appellant.


MEMORANDUM OPINION

Appeal from Barton District Court; SCOTT E. MCPHERSON, judge. Opinion filed September 20,
2019. Vacated and remanded with directions.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., LEBEN, J., and WALKER, S.J.

LEBEN, J.: Rodney Dee Campbell appeals the district court's imposition of Board
of Indigents' Defense Services (BIDS) attorney fees totaling $975. He claims that the
district court didn't properly consider his financial resources and the burden that imposing
the attorney fees would create as required by K.S.A. 22-4513(b) and State v. Robinson,
281 Kan. 538, 132 P.3d 934 (2006).

We agree. In Robinson, 281 Kan. at 546, our Supreme Court said that the
sentencing court must explicitly consider the financial resources of the defendant and the
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burden that payment will impose. The court also must state on the record how it has
weighed those factors in arriving at its assessment of attorney fees. The district court
didn't do that here, so we must vacate Campbell's attorney fees and send the case back for
further consideration of this issue.

FACTUAL AND PROCEDURAL BACKGROUND

Campbell pleaded no contest to one count of failing to stop and remain at the
scene of an accident resulting in death. The plea agreement, which Campbell, the State's
attorney, and Campbell's court-appointed attorney signed, said that "[t]he defendant
agrees to pay, as provided by law . . . court-appointed attorney fees not to exceed the
reimbursable cap of $975.00 . . . ." At sentencing, the district court sentenced Campbell
to 36 months in prison and ordered that he pay $975 for attorney fees.

Campbell appealed to our court, arguing that the district court didn't follow proper
procedures in assessing the attorney fees.

ANALYSIS

Campbell argues that the district court didn't comply with K.S.A. 22-4513(b) and
Robinson before assessing the attorney fees. To rule on his claim, we must interpret a
statute, something we do independently, without any required deference to the district
court. Robinson, 281 Kan. at 539; State v. Hendricks, 52 Kan. App. 2d 737, 739, 372 P.3d
437 (2016).

Under K.S.A. 22-4513(b), when a district court determines the amount and
method of payment of BIDS attorney fees, "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." In Robinson, the Kansas Supreme Court interpreted the statute to mean that
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when a sentencing court assesses BIDS attorney fees, the 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." 281 Kan. at 546. The court said that doing so is mandatory and that
"[w]ithout an adequate record on these points, meaningful appellate review of whether
the court abused its discretion in setting the amount and method of payment of the fees
would be impossible." 281 Kan. at 546. The court has reaffirmed these requirements in
two recent cases, State v. Garcia-Garcia, 309 Kan. 801, Syl. ¶ 8, 441 P.3d 52 (2019); and
State v. Ayers, 309 Kan. 162, Syl. ¶ 1, 432 P.3d 663 (2019).

At Campbell's sentencing hearing, the district judge asked Campbell's attorney,
Heather Helvie, how much her attorney fees would be. She responded that they would
"be over the cap" of $975. The judge then ordered Campbell to pay that amount, $975—
but without any discussion of Campbell's financial resources or the burden that imposing
the fees would create.

The State agrees that the district court never discussed Campbell's ability to pay
the attorney fees. But it argues that Campbell waived his protections under K.S.A. 22-
4513(b) and Robinson in his plea agreement with the State.

It's true that a defendant can waive rights in a plea agreement, including statutory
ones like those provided in K.S.A. 22-4513(b). A defendant can even waive
constititutional rights. But a waiver is the intentional relinquishment of a known right.
See State v. Copes, 290 Kan. 209, 211, 216-17, 224 P.3d 571 (2010). To waive the
protection provided by K.S.A. 22-4513(b), a defendant's waiver must be knowing,
voluntary, and informed. 290 Kan. at 217.

With that overview, let's consider the factual setting of Copes, where our Supreme
Court found no waiver. The Copes court explained that while Copes' plea agreement did
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explicitly waive some rights, it made "no mention of attorney fees or the district court's
obligation to consider Copes' financial resources or the burden the fees would impose."
290 Kan. at 217. Since "the agreement to waive rights under K.S.A. 22-4513(b) and the
fee amount. . . [were] missing from the contract," the Copes court found that there was no
indication that Copes intentionally gave up his rights under K.S.A. 22-4513(b). 290 Kan.
at 217-18.

The facts here are similar to those in Copes. As in Copes, Campbell's plea
agreement didn't specify an exact amount of BIDS attorney fees that Campbell would
have to pay. See 290 Kan. at 215. Instead, in the plea agreement, Campbell agreed to pay
"court-appointed attorney fees not to exceed the reimbursable cap of $975." But agreeing
to pay an unspecified amount up to $975 is not the same as agreeing to pay exactly $975.

As in Copes, Campbell's plea agreement contained explicit waivers of some of his
rights, including his right to go to trial, to present evidence on his own behalf, and to
testify on his behalf. But it didn't include any indication that he knew of his rights under
K.S.A. 22-4513(b) and Robinson—or that he had waived them.

The State also notes Campbell's acknowledgment at his plea hearing that he was
going to have to pay restitution in the case along with his explanation that "he ha[d] a job
[and] had worked there for five years" and he "plan[ned] on getting back to work." The
State argues that these statements should suffice for the required discussion and inquiry
on Campbell's ability to pay the BIDS attorney fees. But these comments came up when
the State and Campbell's attorney were discussing Campbell's bond—not BIDS fees. That
conversation with the court can't substitute for the inquiry required by Robinson. Nor do
they show that Campbell knew about his Robinson rights and agreed to waive them.

In short, neither the written plea agreement nor the transcripts from Campbell's
plea and sentencing hearings show that Campbell intentionally waived these rights.
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Without a waiver, the district court had to comply with K.S.A. 22-4513(b) and Robinson;
it failed to do so. We therefore vacate the assessment of $975 in attorney fees and remand
the case to the district court for reconsideration of that assessment.