Opinion
110,936.
11-07-2014
STATE of Kansas, Appellee, v. Rhashida BAILEY, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Rhashida Bailey pled guilty to a fourth or subsequent driving under the influence (DUI) and to driving while a habitual violator. At sentencing, the district court ordered that she pay a $2,500 fine for the DUI conviction and a $200 fine for the habitual violator conviction. Bailey appeals, arguing that the district court improperly assessed both fines. Because we find that the district court failed to make the necessary findings on the record to support the imposition of the habitual violator fine and failed to make the necessary findings on the record regarding the method of payment of the DUI fine, we vacate the fine assessments and remand with directions.
Factual and procedural Background
As part of a plea agreement, Bailey agreed to plead guilty to a felony DUI and a habitual violator charge, and the State dismissed two other two charges. In the plea agreement, the State agreed to recommend concurrent 9–month sentences to be served primarily on work release for the two offenses. The State also memorialized its intention to request fines: the $2,500 statutory fine for the DUI conviction, and a $200 fine for the habitual violator conviction. The plea agreement also noted that Bailey could opt to perform community service in order to pay off any fines imposed.
The district court accepted Bailey's pleas and found her guilty. At sentencing, the State maintained the request for the 9–month sentences but did not recommend work release due to Bailey's previous failure to appear at sentencing. Bailey requested that the court follow the plea agreement and “impose a sentence of nine months and a $2,500 fine.” Accordingly, district court ordered that Bailey serve 9 months' imprisonment in work release and that she pay the $2,500 fine for the DUI conviction. For the habitual violator conviction, the court ordered a 9–month imprisonment sentence to run concurrent with the DUI sentence as well as a $200 fine. Bailey never objected to the imposition of either fine.
Bailey timely appealed.
Analysis
The sole issue on appeal is whether the district court properly assessed the fines. Bailey argues that the district court ran afoul of statutory procedures because it failed to make certain findings on the record. The State concedes that the district court failed to make the appropriate findings for the habitual violator fine but argues that this court is precluded from reviewing the DUI fine.
Because this case involves the interpretation of multiple statutes, this court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). For ease of understanding, the two fines will be discussed separately.
The habitual violator fine
The offense of driving while a habitual violator is a class A misdemeanor. K.S.A.2011 Supp. 8–287. Until a third or subsequent conviction, however, the offense carries no mandatory sentence or fine. K.S.A.2011 Supp. 8–287. That said, our Kansas criminal code provides generally for sentences of imprisonment and fines for misdemeanor offenses. See K.S.A.2011 Supp. 21–6602(a) ; K.S.A.2011 Supp. 21–6611(b).
The district court is specifically permitted to assess fines against misdemeanants “in addition to or instead of the imprisonment authorized.” K.S.A.2011 Supp. 21–6611(b). When, as here, the offense is a class A misdemeanor, the authorized fine is “a sum not exceeding $2,500.” K.S.A.2011 Supp. 21–6611(b)(1). However, K.S.A.2011 Supp. 21–6612(b)(1) and (2) provide that the district court shall not assess a fine in addition to imprisonment unless the court first finds that the defendant “derived a pecuniary gain from the crime” and that the “fine is adapted to deterrence of the crime involved or to the correction of the offender.” The district court must also consider the defendant's financial resources and the burden the fine will impose. K.S.A.2011 Supp. 21–6612(c). All these findings must be stated on the record. K .S.A.2011 Supp. 21–6612(d) ; see State v. McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988) (judge must make specific findings prior to imposing fines).
Clearly, the district court failed to follow these steps when assessing the $200 fine as part of Bailey's habitual violator sentence. The State concedes that this portion of Bailey's sentence must be vacated and that this court must remand for resentencing.
The DUI fine
Unlike the habitual violator conviction, Bailey's DUI offense carried with it very specific penalties. Our Kansas statutes provide that a fourth or subsequent DUI conviction is a nonperson felony and that “[t]he person convicted shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500.” K.S.A.2011 Supp. 8–1567(b)(1)(E). This fine is mandatory on the district court and “leaves no room for considering financial resources” when assessing it. State v. Copes, 290 Kan. 209, 222, 224 P.3d 571 (2010). However, the district court may order community service at a rate of $5 per hour in lieu of the monetary fine. K.S.A.2011 Supp. 8–1567(f).
Bailey argues that the district court's failure to consider her financial resources and the community service option is a procedural default that requires vacating and remanding her sentence. Although Bailey failed to raise this issue below, this court will generally consider a new legal theory on appeal when that newly asserted theory involves only a question of law arising on proved or admitted facts and that question is finally determinative of the case. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012) ; Copes, 290 Kan. at 213.
In Copes, our Supreme Court reasoned that although the district court is not required to consider financial resources when imposing the $2,500 DUI fine, the court is still required to state on the record that it has “take[n] into account the defendant's financial resources and the burden of the fine when considering” whether the defendant is eligible to pay the fine through community service. 290 Kan. at 222–23. The court reasoned that “[b]y failing to consider [the defendant's] ability to pay and the burden the payment will impose on [defendant], the district court bypassed the consideration of whether community service was an option.” 290 Kan. at 223. The instant case mirrors Copes: the district court properly imposed the mandatory fine but also improperly failed to consider Bailey's resources and the fine's burden before ordering simple monetary payment with no discussion of the community service option.
The State attempts to skirt around this issue in two ways. First, the State claims that Bailey invited the district court's error. Generally speaking, a party who invites an error cannot complain of that same error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Clearly, Bailey requested at sentencing that the district court follow the plea agreement and impose the $2,500 fine. This request, the State argues, indicates Bailey's intent to simply pay the fine rather than to complete community service. But the State's position is merely conjecture. Nothing in the record supports the contention that Bailey's request served to waive the community service option. In fact, the plea agreement that Bailey requested the district court follow explicitly advises her of the community service option:
“Defendant will pay all fines and costs during the course of post-release supervision. Defendant is given the option to perform community service at rate of $5 per hour to pay towards fines. Defendant must either pay fines or earn community service credit, up to the balance of the fines, prior to probation or post-release supervision termination date.”
To construe Bailey's request that the district court follow the plea agreement—foregoing language included—as a waiver of the community service option is unreasonable. Surely the instant appeal would not exist if Bailey did not intend to work off the fine through community service. See State v. Wells, No. 105,204, 2012 WL 718929, at *2 (Kan.App.2012) (unpublished opinion) (McAnany, J., concurring in part and dissenting in part) (“Had the defendant wanted to pay the fine outright rather than working it off through community service, there would be no reason for this appeal.”).
Second, the State contends that any error is immaterial because Bailey is unable to complete the required community service hours within a year of sentencing. K.S.A.2011 Supp. 8–1567(f) provides that any community service shall “be performed not later than one year after the fine is imposed or by an earlier date specified by the court.” Therefore, if a defendant “is already subject to a term of imprisonment or sentenced to a term beyond 12 months, the trial court need not consider” the community service option. State v. Grebe, 46 Kan.App.2d 741, Syl. ¶ 4, 264 P.3d 511 (2011), rev. denied 294 Kan. 945 (2012).
The State reasons that because more than a year has passed since Bailey's sentencing, community service is no longer a viable option. However, caselaw suggests that the relevant point of inquiry is whether circumstances exist on the day of sentencing that will definitely prevent the defendant from completing community service within a year. See State v. White, No. 108,775, 2013 WL 3491299, at *2 (Kan.App.2013) (unpublished opinion) (applying Grebe when, at sentencing, defendant faced two 12–month terms of imprisonment with limited jail time credit), rev. denied 298 Kan. –––– (February 12, 2014); State v. Jefferson, No. 106,265, 2012 WL 2045370, at *3 (Kan.App.2012) (unpublished opinion) (declining to apply Grebe when, at sentencing, defendant's term of imprisonment was 17 days less than 1 year), rev. denied 296 Kan. 1133 (2013); State v. Kent, No. 105,118, 2012 WL 308536, at *1 (Kan.App.2012) (unpublished opinion) (declining to apply Grebe when, at sentencing, defendant might qualify for work release during his 1–year sentence of imprisonment and be able to perform community service that way).
The district court sentenced Bailey to two concurrent terms of 9 months' imprisonment with the possibility of work release. Although it is now nearly 2 years from her January 2013 sentencing, Bailey's sentences were such on the date of the hearing that she could have completed community service within a year. Accordingly, the district court was still required to consider the community service option at sentencing.
In sum, the district court was required to consider Bailey's resources and the burden imposed by the mandatory $2,500 fine in deciding whether community service might be an appropriate alternative to the monetary fine payment. The district court failed to do so. As such, the DUI fine must also be vacated and remanded with instructions for the district court to follow the mandate of Copes.
For the reasons stated above the fines assessed are vacated and the case remanded with directions to consider Bailey's fines consistent with K.S.A.2011 Supp. 21–6612 and our Supreme Court's decision in Copes.
Vacated and remanded with directions.