State v. Montes

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NOT DESIGNATED FOR PUBLICATION

No. 119,642

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PABLO R. MONTES, a/k/a CARLOS JAVIER ROMERO,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed March 1, 2019.
Fine vacated and case remanded with directions.

Caroline M. Zuscheck, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, senior assistant district attorney, and Derek Schmidt, attorney general, for
appellee.

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

PER CURIAM: Pablo Montes, a/k/a Carlos Javier Romero, appeals the mandatory
minimum $1,750 fine the district court imposed for his third DUI conviction. He argues
the district court erred by failing to consider whether community service would be an
appropriate method to pay off the fine due to his financial circumstances and the burden
the fine would impose. We agree. Accordingly, we vacate the $1,750 fine and remand for
the district court's consideration of the method of repayment.

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Montes pled guilty in Reno County to DUI for the third time—a felony. The
district court accepted his plea and sentenced him to 12 months in jail, with release to
community corrections permitted after 6 months. The court imposed the statutory
minimum $1,750 fine for a DUI but waived attorney fees, noting "it's clear there's no way
we're ever going to get the BIDS fees paid." See K.S.A. 2017 Supp. 8-1567(b)(1)(D).
Montes was already in the Sedgwick County jail serving another sentence. The court
ordered this sentence to be served concurrently. At the sentencing hearing, Montes'
attorney asked that he be transferred to Colorado once he was on probation because he
had a job there. The court permitted such transfer. Montes also noted that he was on an
Immigration and Customs Enforcement hold and did not know what was going to happen
to him after he served his jail sentence. On the journal entry, the court checked a box
indicating that it had considered Montes' financial resources and the burden imposed by
the BIDS fees under K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934
(2006).

On appeal, Montes argues that the district court committed reversible error by
failing to consider his financial circumstances and the burden that the $1,750 fine would
impose, and whether he could work off the fine through community service. He did not
ask for community service before the district court and instead raises this issue for the
first time on appeal.

Indeed, a minimum fine of $1,750 is mandatory for a third conviction for DUI.
K.S.A. 2017 Supp. 8-1567(b)(1)(D). In lieu of payment of the fine, however, "the court
may order that the person perform community service specified by the court" provided
that community service can be performed "not later than one year after the fine is
imposed." The defendant receives a $5 credit on the fine for every hour of community
service. K.S.A. 2017 Supp. 8-1567(f).

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Our Supreme Court has ruled that a district court must take into account the
defendant's financial resources and the burden of the fine when considering the method of
payment of a fine for a DUI offense, i.e., whether the defendant must pay a monetary fine
or provide community service under K.S.A. 8-1567. See State v. Copes, 290 Kan. 209,
222-23, 224 P.3d 571 (2010). The Copes court construed K.S.A. 2009 Supp. 8-1567 with
K.S.A. 21-4607(3) (now codified at 2017 Supp. K.S.A. 21-6612[c]), which provided that,
"In determining the amount and method of payment of a fine, the court shall take into
account the financial resources of the defendant and the nature of the burden that its
payment will impose." (Emphasis added.) 290 Kan. at 218-23.

The court does not need to consider the defendant's financial circumstances or the
burden imposed by the fine if the defendant was sentenced to a term of incarceration that
cannot be completed in less than a year. This is because the statute requires that the
community service be performed within a year. State v. Grebe, 46 Kan. App. 2d 741,
744-45, 264 P.3d 511 (2011). A defendant can, in a plea agreement, waive his or her
statutory right to have the district court make such findings, but there must be an
intentional relinquishment of a known right. See Copes, 290 Kan. at 217-218.

Montes raises an issue of statutory interpretation which is a question of law over
which we have unlimited review. Because a question of law is presented, we can consider
his argument even though he did not raise the issue before the district court. See Copes,
290 Kan. at 213.

Here, Montes was to serve 6 months in jail. While the district court apparently
considered Montes' financial circumstances and burden in relation to the BIDS fee, the
court did not consider those things with regard to the method of payment of the $1,750
fine. Therefore, the district court erred.

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We note that while this appeal was pending, the State moved to dismiss
contending that Montes had been deported to Mexico and the doctrine of fugitive
disentitlement should apply. The fugitive disentitlement doctrine is a means of dismissing
an appeal "when a criminal defendant has chosen to thwart the appellate process by
absconding from the jurisdiction of the courts." State v. Raiburn, 289 Kan. 319, Syl. ¶ 1,
212 P.3d 1029 (2009). This court's power to dismiss the appeal is discretionary. 289 Kan.
319, Syl. ¶ 2. The State's motion cites a deportation document that was supposed to be an
attachment to the motion, but the document was not actually attached. In response,
Montes' attorney noted that whether Montes has been deported is not contained in the
record and argued that involuntary deportation is not a choice and, therefore, Montes
would not be a fugitive under the doctrine if he was deported.

We do not have sufficient information to determine whether Montes has been
deported or is a fugitive. That is a fact that the district court will have to find on remand.
See Raiburn, 289 Kan. at 332. If Montes has been deported, then whether the doctrine of
fugitive disentitlement applies is likely beside the point because Montes would not be
able to perform community service anyway.

Additionally, the State argues that Montes invited the error because he agreed to
pay the mandatory fine as part of the plea agreement and his immigration hold would
complicate his ability to perform community service.

The record does not support the State's argument that Montes invited the error by
agreeing to pay a monetary fine in the plea agreement. A written plea agreement is not in
the record. The State points to a transcript where Montes' attorney stated the plea
agreement "was an agreement for the minimums, minimum time, minimum costs."
Montes agrees that the plea agreement for was for the minimum fine, but argues the plea
agreement was silent on the method of repaying the fine, i.e., whether he had to pay a
monetary fine or work off the amount through community service. Without an explicit
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waiver of his right to have the district court consider his financial resources and the
burden that payment of the fine would impose, we cannot say that Montes invited the
error.

Obviously, Montes' immigration hold and/or deportation complicates his ability to
perform community service. But that is something that the district court will have to
consider and make findings about on remand. We vacate the $1,750 fine and remand to
the district court for consideration of whether the alternative method of payment set out
in K.S.A. 2017 Supp. 8-1567(f) would be appropriate.