State v. Reyes

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NOT DESIGNATED FOR PUBLICATION

No. 118,423


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT REYES,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed March 1, 2019.
Affirmed in part, reversed in part, and remanded with directions.

Joshua D. Seiden, of Seiden Law Office, P.A., of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

PER CURIAM: After Defendant Robert Reyes pleaded no contest to battery, the
Douglas County District Court sentenced him and ordered that he pay statutory costs and
reimburse the county for the fees it paid to his appointed lawyers. On appeal, Reyes
contends the district court should have taken into account his ability to pay the statutory
costs and attorney fees before entering the order. Reyes is correct as to the attorney fees.
We, therefore, reverse that part of the order and remand to the district court for further
proceedings.
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The facts underlying Reyes' crime are irrelevant to the issues on appeal. He was
convicted of and sentenced for one count of battery, a misdemeanor, on September 11,
2017. Reyes was represented in the case sequentially by two court-appointed lawyers. At
the September 11 hearing, the district court ordered Reyes to pay statutory costs of $158
and to reimburse the county for the fees paid the lawyers in an amount to be determined.
The record shows the district court did not inquire about Reyes' ability to pay the costs or
the fees. Reyes has appealed on the ground the district court was required to consider his
ability to pay and had the authority to adjust the costs and fees accordingly.

As to the statutory costs, Reyes is mistaken. Under K.S.A. 22-3801(a), "court
costs shall be taxed against the defendant" upon conviction in a criminal case. The costs
become an enforceable judgment against the defendant. Nothing in the statute suggests
the "shall" should be read other than in its customary way as requiring a mandatory act.
See Gannon v. State, 298 Kan. 1107, 1141, 319 P.3d 1196 (2014). And the statute
contains no language indicating the district court may reduce the costs for good cause,
financial hardship, or some other reason. In turn, K.S.A. 2017 Supp. 28-172a establishes
the court costs for a misdemeanor as $136 with a $22 surcharge for a total of $158. That
corresponds to the amount the district court imposed on Reyes. The district court properly
ordered Reyes to pay the costs.

Reimbursement of the fees the county paid Reyes' court-appointed lawyers is
another matter. When sentencing defendants, a district court is required to order them to
reimburse the county "for all or part" of what the county has paid for their appointed legal
representation. K.S.A. 2017 Supp. 21-6604(d). But in ordering repayment, the district
court "shall take account of the financial resources of the defendant and the nature of the
burden that payment of such sum will impose." K.S.A. 2017 Supp. 21-6604(d). The
language in K.S.A. 2017 Supp. 21-6604(d) is functionally no different from that in
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K.S.A. 22-4513(b), requiring reimbursement of attorney fees to the Board of Indigents'
Defense Services (BIDS) in felony cases.

In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), the Kansas
Supreme Court held that in ordering BIDS reimbursement, a district court must explicitly
consider on the record "the financial resources of the defendant" and "the burden"
payment may impose in determining the specific amount a defendant should pay. About a
year and half after Robinson, the Kansas Supreme Court held that a district court must
first determine the full amount due BIDS to make any meaningful adjustment based on a
defendant's ability to pay and the commensurate burden. State v. Stevens, 285 Kan. 307,
330, 172 P.3d 570 (2007). That is, the burden can't be reasonably assessed without
establishing the reimbursement amount itself.

We see no reason the principles of Robinson and Stevens should not apply here
given the legally indistinguishable language governing reimbursement of fees for
appointed lawyers in K.S.A. 2017 Supp. 21-6604(d) and K.S.A. 22-4513(b). That one
deals with county reimbursement typically for misdemeanors and the other with BIDS
reimbursement for felonies provides no obvious difference of any legal import. The
parties have suggested none.

We, therefore, reverse the order directing Reyes to pay an amount to be
determined for the fees the county advanced to his court-appointed lawyers. We remand
to the district court for a hearing to determine the base amount of the reimbursement and
then to determine Reyes' ability to pay that amount and whether some reduction would be
warranted under K.S.A. 2017 Supp. 21-6604(d).

Affirmed in part, reversed in part, and remanded with directions.