State v. Robinson

Luckert, J.,

concurring: I disagree with the majority’s conclusion that a sentencing court must consider the defendant’s financial resources at the time of assessing fees pursuant to K.S.A. 2005 Supp. 22-4513. This conclusion, in my view, is contrary to the plain and unambiguous language of the provision, specifically subsection (a). I would hold, however, that the sentencing court is required to take the defendant’s financial resources into account at the time of determining the amount and method of payment of that sum under subsection (b) and, because the sentencing court did not do so in this case, I agree that remand is appropriate.

The legislature has instructed that we should read words “according to the context and the approved language of the statute.” K.S.A. 2005 Supp. 77-201, Second. In other words, “[ojrdinary words are to be given their ordinary meaning.” GT, Kansas, L.L.C. *549 v. Riley County Register of Deeds, 271 Kan. 311, 316 , 22 P.3d 600 (2001). The legislature has further directed that “words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meaning.” K.S.A. 2005 Supp. 77-201, Second; see Rose v. Via Christi Health System, Inc., 279 Kan. 523, 527 , 113 P.3d 241 (2005). These rules are applied under the presumption that the legislature expressed its intent through the language it enacted; that legislative intent governs a court’s interpretation of the statute. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88 , 106 P.3d 492 (2005).

K.S.A. 2005 Supp. 22-4513(a) provides in relevant part that the State Board of Indigents’ Defense Services (BIDS) fees “shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.” “Shall” is defined as “[h]as a duty to; more broadly, is required to.” Black’s Law Dictionary 1407 (8th ed. 2004). While it has also been defined to mean directory, as opposed to mandatory, the former is related to matters of mere form, not substance as here. See Wilcox v. Billings, 200 Kan. 654 , 657 438 P.2d 108 (1968) (whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form). Thus, the amount, as specified by the statute, must be “taxed.” The word “tax” distinguishes the fees from a punishment and also determines the level of priority the claim will receive when there are multiple claimants seeking recovery of an asset held by the defendant. See, e.g., K.S.A. 75-6211(a) (provision relating to a person’s assets in the control of the State — such as tax refunds or lottery proceeds— being setoff against taxes or other debts, giving highest priority to taxes).

K.S.A. 2005 Supp. 22-4513(a) specifies the amount is to be enforced as a civil, as opposed to criminal, judgment. Thus, BIDS has the ability to utilize enforcement procedures established by law. One such enforcement procedure provided under K.S.A. 2005 Supp. 22-4504(c) and 22-4513(c) allows the State to recover the fees from third parties to whom a defendant has transferred property without adequate consideration. Under these provisions, “[a] *550 determination by the court that the defendant is financially unable to employ counsel or pay other costs of the defendant’s defense may preclude a recoveiy from the defendant but may not preclude recovery from any person to whom the defendant may have transferred or conveyed any property without adequate monetary consideration after the date of tire commission of the alleged crime.” K.S.A. 2005 Supp. 22-4504(c); K.S.A. 2005 Supp. 22-4513. See also K.S.A. 22-4510 (relating to reimbursement of BIDS attorney fees and providing “[w]henever the court finds that funds are available for payment from or on behalf of a defendant, the court shall direct that such funds be paid to the court for deposit in the state treasury to the credit of the state general fund.” [Emphasis added.]).

Contrary to the majority’s holding, tire provisions of K.S.A.' 2005 Supp. 22-45l3(a) do not impose a requirement that the sentencing court take into consideration the defendant’s ability to pay when assessing die fees. Rather, under the plain language of the provision, the court is to assess either (a) the amount of actual expenditures for providing counsel and other defense services or (b) the amount allowed by the BIDS’ defense reimbursement tables, whichever is less. Statutes relating to the appointment of counsel and the payment of attorney fees impose upon the court the obligation to examine ability to pay at two other points in time: (1) when counsel is appointed and (2) when the court requires any payment of the fees.

K.S.A. 2005 Supp. 22-4504 imposes the first requirement — that inquiry be made into a defendant’s financial resources at the time counsel is appointed. That statute provides that when a defendant claims to be financially unable to employ counsel, “the court shall require that the defendant file an affidavit” in the form required in regulations promulgated by BIDS. See K.A.R. 105-4-3. That affidavit presents the court with the information necessary to make the determination of whether the defendant is financially able to employ counsel. The statute specifies the considerations for this decision:

“In making such determination the court shall consider the defendant’s assets and income; the amount needed for the payment of reasonable and necessary expenses incurred, or which must be incurred to support the defendant and the defendant’s *551 immediate family; the anticipated cost of effective representation by employed counsel; and any property which may have been transferred or conveyed by tire defendant to any person without adequate monetary consideration after the commission of the alleged crime. If the defendant’s assets and income are not sufficient to cover the anticipated cost of effective representation by employed counsel when the length and complexity of the anticipated proceedings are taken fully into account, the defendant shall be determined indigent in full or in part and the court shall appoint an attorney as provided in K.S.A. 22-4503, and amendments thereto.” K.S.A. 2005 Supp. 22-4504(b).

The second circumstance when an inquiry of the defendant’s ability to pay must be made is whenever the court requires payment by the defendant. For example, K.S.A. 2005 Supp. 22-4513(b) requires: “In determining the amount and method of payment of such sum [imposed under K.S.A. 2005 Supp. 22-4513(a)], 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.” See also K.S.A. 2005 Supp. 21-4603d(d) (requiring defendant to reimburse county for defense expenses incurred by county unless court finds manifest hardship); K.S.A. 2005 Supp. 21-4610(d)(3) (requiring reimbursement as condition of probation unless court finds manifest hardship).

In this case, the sentencing court required the defendant to make monthly payments as a condition of probation, as required by K.S.A. 2005 Supp. 21-4610(d)(3), but did not make findings required by K.S.A. 2005 Supp. 22-4513(b). Thus, I agree with the majority that this matter must be remanded for the findings required by K.S.A. 2005 Supp. 22-4513(b). However, the legislature has distinguished between the taxation of the fees and an order to pay the fees. The distinction may be significant in another case and this court should not blur a distinction which the legislature has made.