State v. Bonner

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 98,430
98,431

STATE OF KANSAS,
Appellee,

v.

TABITHA L. BONNER,
Appellant.


SYLLABUS BY THE COURT

1.
Interpretation of a sentencing statute is a question of law, and the appellate court's
standard of review is unlimited.

2.
When a court is called upon to interpret a statute, the intent of the legislature governs if
that intent can be ascertained. The legislature is presumed to have expressed its intent through
the language it enacted. For this reason, when the language of a statute is plain and
unambiguous, courts need not resort to statutory construction. If a statute is subject to more than
one interpretation, however, a court attempting to discern legislative intent may employ rules of
statutory construction and look to the historical background of the enactment, the circumstances
attending its passage, the purposes to be accomplished, and the effects the statute may have
under the various constructions suggested.

3.
As a general rule, courts strictly construe a criminal statute in favor of the accused, which
simply means that the court reads words with their ordinary meaning. The court decides any
reasonable doubt about a word's meaning in favor of the accused. This rule of strict
construction, however, is subordinate to the rule that judicial interpretation must be reasonable
and sensible so as to give effect to the legislative design and intent.
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4.
Under K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 21-4603d(g), a court was
required to consider placement at Labette Correctional Conservation Camp, another established
conservation camp, or a community intermediate sanction center in the following five
circumstances: (1) prior to imposing a dispositional departure for a defendant whose offense is
classified in the presumptive nonprison grid block of either sentencing guidelines grid; (2) prior
to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-I, or
6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or
3-I of the sentencing guidelines grid for drug crimes; (3) prior to sentencing a defendant to
incarceration whose offense is classified in grid blocks 4-E or 4-F of the sentencing guidelines
grid for drug crimes and whose offense does not meet the requirements of K.S.A. 21-4729, and
amendments thereto; (4) prior to revocation of a nonprison sanction of a defendant whose
offense is classified in grid blocks 4-E or 4-F of the sentencing guidelines grid for drug crimes
and whose offense does not meet the requirements of K.S.A. 21-4729, and amendments thereto,
or (5) prior to revocation of a nonprison sanction of a defendant whose offense is classified in the
presumptive nonprison grid block of either sentencing guidelines grid or grid blocks 5-H, 5-I, or
6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or
3-I of the sentencing guidelines grid for drug crimes. The word "or" must be read as a
disjunctive term rather than conjunctive. In other words, a district court was required to consider
one of the alternative sentencing sanctions if any of the five circumstances applies.

5.
Under K.S.A. 2005 Supp. 21-4603d(f) and K.S.A. 2006 Supp. 21-4603d(f), if a defendant
committed an offense while on felony bond, the defendant could be sentenced for the new
conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In
this event, imposition of a prison sentence for the new crime did not constitute a departure.


6.
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A failure to comply with K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 21-
4603d(g) is not reversible error if none of the alternative nonprison sanctions listed in the statute
is available.

7.
A defendant incurs the obligation to pay the Board of Indigents' Defense Services (BIDS)
application fee when the application is completed. Consequently, an order in a journal entry of
sentencing to pay an unpaid application fee—even if not pronounced from the bench—is not
improper.

8.
An order to pay a BIDS application fee is merely an imposition of costs and is neither
punitive nor part of a sentence. Because the defendant's ability to pay the fee is considered at the
time the defendant submits an application for appointed counsel, the district court is not required
to make further findings at sentencing to validate the assessment of the application fee.

9.
A defendant's constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), are not violated if the defendant's criminal
history is not proven to a jury beyond a reasonable doubt.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 1, 2008. Appeal
from Montgomery district court; RUSSELL D. CANADY, judge. Judgment of the Court of Appeals affirming the
district court on those issues subject to our grant of review is affirmed. Judgment of the district court on those issues
is affirmed. Opinion filed March 5, 2010.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the
same office, was on the brief for appellant.

David Maslen, assistant county attorney, argued the cause, and Paul J. Morrison, former attorney general,
was with him on the brief for appellee.

The opinion of the court was delivered by
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LUCKERT, J.: This appeal requires us to consider whether an error in failing to consider
the alternative nonprison sanctions provided for in K.S.A. 2005 Supp. 21-4603d(g) and K.S.A.
2006 Supp. 21-4603d(g)—placement at Labette Correctional Conservation Camp (Labette), in
another conservation camp, or in a community intermediate sanction center (CISC)—is a
reversible error when none of those alternatives is available. We conclude the error is harmless
and does not require us to vacate the sentence. This question arises because we hold the district
court erred in concluding that the alternative nonprison sanctions did not have to be considered
under 21-4603d(g) if the crime was committed while the defendant was on felony bond, even if
another circumstance under the statute applies. In addition, following well-established
precedent, we hold the district court did not err by including a Board of Indigents' Defense
Services (BIDS) application fee in the journal entry of judgment even though it did not consider
Bonner's ability to pay the fee during the sentencing hearing, and the district court did not err in
considering Bonner's criminal history without submitting it to a jury for determination.

FACTS

This is a consolidated appeal arising from sentences imposed in two cases. In both cases,
Tabitha L. Bonner committed the crimes while on felony bond.

In one case (No. 05CR553I), Bonner pleaded no contest to two counts of forgery in
violation of K.S.A. 2005 Supp. 21-3710, severity level 8 felonies. Because she had a criminal
history score of E, her convictions fell in block 8-E on the nondrug sentencing guideline grid,
which is a presumptive probation grid block. See K.S.A. 2005 Supp. 21-4704.

At sentencing, Bonner requested she be given probation under the supervision of
community corrections. The district court denied this request and invoked the special sentencing
rule in K.S.A. 2005 Supp. 21-4603d(f), which grants a district court the discretion to sentence a
defendant to prison if the crime of conviction is a felony that was committed while the defendant
was on felony bond. The district court imposed the standard sentence in the grid block and did
not make any findings regarding alternative nonprison sanctions under K.S.A. 2005 Supp. 21-
4603d(g). The district court also awarded court costs, restitution, and BIDS attorney fees in an
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amount to be determined by the BIDS fee schedule. In the journal entry, the district court
awarded $460 for BIDS attorney fees and the $100 BIDS administrative fee.

In the second case (No. 08CR395I), Bonner pleaded no contest to attempted possession
of cocaine in violation of K.S.A. 2006 Supp. 21-3301 and K.S.A. 2006 Supp. 65-4160, a severity
level 4 felony. Even though this conviction was subsequent to the forgery convictions, Bonner's
criminal history score remained an E. This placed Bonner in a presumptive probation grid block
on the sentencing guidelines drug grid. See K.S.A. 2006 Supp. 21-4705.

The sentencing hearing in this case, which was held approximately 1 week after the
sentencing hearing in the forgery case, went much the same as the prior hearing. Bonner again
requested probation, and the district court again invoked 21-4603d(f), imposed the standard
prison sentence in the 4-E grid block, and failed to consider the alternative nonprison sanctions
provided for in 21-4603d(g). (K.S.A. 2005 Supp. 21-4603d applied to the forgery crimes, which
were committed in 2005. The cocaine offense was committed in 2006, and K.S.A. 2006 Supp.
21-4603d applied. Although 21-4603d was amended in 2005, neither 21-4603d[f] or [g] were
amended. L. 2005, ch. 150, § 5. In this opinion, we will cite the 2005 supplement when
referring to the forgery case and the 2006 supplement when referring to the attempted possession
of cocaine case and when analyzing 21-4603d as it applied in both cases).

Further, at the sentencing hearing for the attempted possession of cocaine conviction, the
district court awarded attorney fees in an amount to be determined by the BIDS fee schedule. In
the journal entry, the district court awarded $525 for BIDS attorney fees and the $100 BIDS
administrative fee.

On direct appeal, Bonner argued the district court was required to apply K.S.A. 2006
Supp. 21-4603d(g) and consider alternative nonprison sanctions—Labette, another qualifying
conservation camp, or a CISC—before sentencing her to prison, because her convictions fell
within presumptive probation grid blocks. Second, Bonner argued the district court erred when it
failed during the sentencing hearing to consider her ability to pay the BIDS attorney fees and the
BIDS administrative fee. Finally, Bonner argued the district court erred by not having a jury
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determine her criminal history. In State v. Bonner, No. 98,430, unpublished opinion filed August
1, 2008, the Court of Appeals affirmed in part and vacated in part.

With regard to the forgery convictions, the Court of Appeals recognized that 2005 Supp.
K.S.A. 21-4603d(g) requires the district court to consider alternative nonprison sanctions before
ordering a dispositional departure from a presumptive nonprison sentence. The Court of Appeals
determined this provision was not applicable, however, because the forgeries were committed
while Bonner was on felony bond and K.S.A. 2005 Supp. 21-4603d(f) gave the district court the
discretion to impose imprisonment and provides "imposition of a prison sentence for the new
crime does not constitute a departure."

Regarding Bonner's conviction for attempted possession of cocaine, the Court of Appeals
observed that K.S.A. 2006 Supp. 21-4603d(g) requires the district court to consider alternative
nonprison sanctions before imposing a prison sentence when the defendant's conviction is
classified as 4-E on the drug grid and the defendant does not qualify for placement in a drug
treatment program under K.S.A. 2006 Supp. 21-4729. The court recognized grid block 4-E
applied and that Bonner did not qualify for a drug treatment program because she had a prior
felony conviction in Missouri for sale of a controlled substance. Nevertheless, the Court of
Appeals determined alternative nonprison sanctions did not need to be considered because
Bonner's crime of conviction took place while she was on felony bond. Bonner, slip op. at 2.

Regarding the BIDS attorney fees, the Court of Appeals observed that State v. Robinson,
281 Kan. 538, 546, 132 P.3d 934 (2006), requires the district court to consider the defendant's
financial resources and to evaluate the burden payment would impose before awarding such fees.
See K.S.A. 2006 Supp. 22-4513(b). The State conceded that the district court failed to follow
Robinson when awarding the BIDS attorney fees and that Bonner's cases had to be remanded.
The Court of Appeals, therefore, vacated the BIDS attorney fee awards and remanded to the
district court for a determination of Bonner's financial resources in light of Robinson. Bonner,
slip op. at 5-6.

As for the BIDS administrative fee ordered in each journal entry of judgment, the Court
of Appeals rejected the notion that the district court was required to apply the Robinson analysis
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at sentencing. The Court of Appeals pointed out that in State v. Hawkins, 285 Kan. 842, 176
P.3d 174 (2008), this court established that the district court assesses the application fee when a
defendant applies for court-appointed counsel and that determining whether the fee would cause
manifest hardship is "a minor extension of the analysis which the district court is already
performing when assessing eligibility for court-appointed counsel." 285 Kan. at 853. The Court
of Appeals stated that the district court made the required inquiry to assess the BIDS
administrative fee in Bonner's cases. Bonner, slip op. at 6.

Finally, concerning Bonner's contention that the district court erred by imposing a
sentence without first proving her prior convictions to a jury beyond a reasonable doubt, the
Court of Appeals cited State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002), and State v.
Gonzalez, 282 Kan. 73, 115-18, 145 P.3d 18 (2006), where the same argument was rejected by
this court. Bonner, slip op. at 7.

Bonner now petitions this court for review. Because the Court of Appeals ruled in her
favor on the issue regarding the BIDS attorney fees, Bonner does not raise that issue in her
petition for review. She raises all other issues, however, and we granted review under K.S.A.
22-3602(e).

STANDARD OF REVIEW

The issues Bonner raises require us to interpret various sentencing statutes. Interpretation
of a statute is a question of law, and the appellate court's standard of review is unlimited. State v.
Ellmaker, 289 Kan. 1132, ___, 221 P.3d 1105 (2009); State v. Gonzales, 289 Kan. 351, 365, 212
P.3d 215 (2009).

Our rules of statutory interpretation are well known. As we recently stated:

"When a court is called upon to interpret a statute, the intent of the legislature governs if that intent
can be ascertained. The legislature is presumed to have expressed its intent through the language
it enacted. [Citation omitted.] For this reason, when the language of a statute is plain and
unambiguous, courts need not resort to statutory construction. [Citation omitted.] If a statute is
subject to more than one interpretation, however, a court attempting to discern legislative intent
may employ rules of statutory construction and look to the historical background of the enactment,
the circumstances attending its passage, the purposes to be accomplished, and the effects the
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statute may have under the various constructions suggested. [Citations omitted.]" State v.
Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).

As a general rule, this court strictly construes a criminal statute in favor of the accused,
which simply means that the court reads words with their ordinary meaning. The court decides
any reasonable doubt about a word's meaning in favor of the accused. State v. Kleypas, 282 Kan.
560, 564, 147 P.3d 1058 (2006). This rule of strict construction, however, is subordinate to the
rule that judicial interpretation must be reasonable and sensible so as to give effect to the
legislative design and intent. State v. Bee, 288 Kan. 733, 737, 207 P.3d 244 (2009).

CONSIDERATION OF ALTERNATIVE NONPRISON SANCTIONS

First, Bonner contends the district court erred in failing to consider alternative nonprison
sanctions before imposing incarceration in each criminal case. She argues that K.S.A. 2006
Supp. 21-4603d(g) requires this placement consideration.

K.S.A. 2006 Supp. 21-4603d(g) identifies five circumstances in which the district court

"shall consider placement of the defendant in the Labette correctional conservation camp,
conservation camps established by the secretary of corrections pursuant to K.S.A. 75-52,127, and
amendment thereto or a community intermediate sanction center. Pursuant to this paragraph the
defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a
community intermediate sanction center and the defendant meets all of the conservation camp's or
a community intermediate sanction center's placement criteria unless the court states on the record
the reasons for not placing the defendant in a conservation camp or a community intermediate
sanction center." (Emphasis added.)

Our courts have construed the statutory language "shall consider placement" to be mandatory.
See, e.g., State v. Wiegand, 275 Kan. 841, 845-46, 69 P.3d 627 (2003); State v. Williams, 34
Kan. App. 2d 837, 838-39, 125 P.3d 578 (2006). The statute requires these alternative
sentencing options to be considered in the following five circumstances:

1. "Prior to imposing a dispositional departure for a defendant whose offense is classified in the
presumptive nonprison grid block of either sentencing guideline grid,"
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2. "[P]rior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-
H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G,
3-H or 3-I of the sentencing guidelines grid for drug crimes,"

3. "[P]rior to sentencing a defendant to incarceration whose offense is classified in grid blocks 4-
E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the
requirements of [K.S.A. 21-4729], and amendments thereto,"

4. "[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in grid
blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not
meet the requirements of [K.S.A. 21-4729], and amendments thereto, or"

5. "[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in the
presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5-H, 5-I or 6-
G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H or 3-I
of the sentencing guidelines grid for drug crimes . . . ." (Emphasis added.) K.S.A. 2006 Supp. 21-
4603d(g).

This court recently determined that the word "or" in subsection (g) is to be read as a
disjunctive term rather than a conjunctive term. Bee, 288 Kan. at 741. In other words, a district
court must consider an alternative sentencing sanction if any of the five circumstances applies.

In this appeal, two of the circumstances potentially apply—the first and the fourth.
Because 21-4603d applies differently in each of Bonner's criminal cases, we will discuss the
forgery convictions separately from the attempted possession of cocaine conviction.

Forgery Case

The two counts of forgery in case No. 05CR553I were level 8 nondrug crimes. With a
criminal history score of E, Bonner's conviction fell into a presumptive probation block on the
sentencing guidelines nondrug grid. The plain language of K.S.A. 2005 Supp. 21-4603d(g)
requires the district court to consider alternative nonprison sanctions before imposing a
dispositional departure for a defendant whose conviction falls into a "nonprison grid block."
Key to this provision's application is the requirement that a prison sentence must be a
dispositional departure.
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This was not so in Bonner's forgery case. Under the facts, prison was not a dispositional
departure because the two counts of forgery were committed while Bonner was on felony bond.
K.S.A. 2005 Supp. 21-4603d(f) provides:

"When a new felony is committed while the offender is on release for a felony pursuant to the
provisions of article 28 of chapter 22 of the Kansas Statutes Annotated, a new sentence may be
imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments
thereto, and the court may sentence the offender to imprisonment for the new conviction, even
when the new crime of conviction otherwise presumes a nonprison sentence. In this event,
imposition of a prison sentence for the new crime does not constitute a departure." (Emphasis
added.)

This provision clearly gives the district court the discretion to impose prison when
probation is presumed if an offender commits a new crime while on felony bond. And while the
decision is discretionary, if the court chooses to impose a prison sentence for the new crime, the
sentence "does not constitute a departure." This is exactly what occurred in Bonner's forgery
case. Moreover, no other circumstance identified in K.S.A. 2005 Supp. 21-4603d(f) applies.
Consequently, the absence of a dispositional departure means that the alternative nonprison
sanction provision of K.S.A. 2005 Supp. 21-4603d(g) does not apply.

Thus, the district court did not err in failing to consider alternative nonprison sanctions in
Bonner's forgery case, and we agree with the Court of Appeals' reasoning on this point.

Attempted Possession of Cocaine Case

The one count of attempted possession of cocaine in case No. 06CR395I was a severity
level 4 drug crime. With Bonner's criminal history score of E, Bonner's conviction fell into a
presumptive probation block on the sentencing guidelines drug grid. Because the crime was
committed while Bonner was on felony bond, the district court had authority pursuant to K.S.A.
2006 Supp. 21-4603d(f) to order imprisonment without implementing a departure.

Nevertheless, a different circumstance identified in K.S.A. 2006 Supp. 21-4603d(g)—the
fourth circumstance listed above—applies. Bonner's attempted possession of cocaine conviction
was classified in the 4-E drug grid, and one of the circumstances listed in K.S.A. 2006 Supp. 21-
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4603d(g) requires consideration of alternative nonprison sanctions prior to sentencing for a
defendant whose "offense is classified in grid blocks 4-E or 4-F . . . and whose offense does not
meet the requirements of [K.S.A. 21-4729]." In turn, K.S.A. 2006 Supp. 21-4729(a)(1) requires
placement in a certified drug treatment program if the "offense is classified in grid blocks 4-E, 4-
F, 4-G, 4-H or 4-I of the sentencing guidelines grid for drug crimes" and the defendant "has no
felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, and amendments
thereto or any substantially similar offense from another jurisdiction." It is undisputed that
Bonner had a prior felony conviction in Missouri for sale of a controlled substance, which is the
statutory equivalent of 65-4161. Consequently, Bonner's offense did not meet the requirements
of K.S.A. 2006 Supp. 21-4729, and her offense was classified in grid block 4-E. As a result, the
fourth circumstance listed in K.S.A. 2006 Supp. 21-4603d(g) applies.

The Court of Appeals recognized the applicability of this circumstance but concluded that
because the sentence was not a dispositional departure, the alternative sentencing did not apply.
In other words, the Court of Appeals failed to read the "or" in the statute as a disjunctive term
and, therefore, erroneously held that alternative nonprison sanctions did not have to be
considered by the district court if the first—the dispositional departure—circumstance did not
apply.

This application of the statute is contrary to the clear language of the provision. See Bee,
288 Kan. at 741. The word "or" indicates the alternative nonprison sanctions must be considered
if there is a dispositional departure or if the offense is classified in grid blocks 4-E or 4-F and
does not meet the requirements of K.S.A. 2006 Supp. 21-4729. Under the latter circumstance,
there is no mention of the special rule under K.S.A. 2006 Supp. 21-4603d(f) where a new felony
is committed while the offender is on felony bond, and there is no requirement that the
imposition of a prison sanction be a dispositional departure. Hence, we conclude the fourth
circumstance listed in K.S.A. 2006 Supp. 21-4603d(g)—relating to drug treatment—requires
consideration of alternative nonprison sanctions, notwithstanding the fact that the crime was
committed while the offender was on felony bond.

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This conclusion is bolstered by the fact that K.S.A. 2006 Supp. 21-4603d(f) does not
mandate a prison sentence when a defendant commits a new crime while on felony bond; it
merely gives the district court the discretion to impose a prison sentence. If incarceration were
mandated, it would be inconsistent to conclude that the legislature intended the consideration of
alternative nonprison sanctions. See Bee, 288 Kan. 733, Syl. ¶ 7 ("An offender sentenced
pursuant to K.S.A. 21-4729 who fails to participate in a drug treatment program is subject to
immediate imposition of the underlying prison sentence once the district court has made the
finding required by K.S.A. 21-4603d[n] of a pattern of intentional conduct demonstrating the
offender's refusal to comply with or participate in treatment. Consideration of placement in
[Labette] or other nonprison sanctions under K.S.A. 21-4603d[g] is not required.").

The Court of Appeals erred in applying the identical rationale to both the forgery case
and the attempted possession of cocaine case. The district court should have considered
alternative nonprison sanctions with respect to Bonner's conviction for attempted possession of
cocaine.

Disposition

Nevertheless, this error does not necessarily require reversal. See Wiegand, 275 Kan. at
846-47.

In Wiegand, the district court considered a placement at a conservation camp but did not
consider placement at a CISC. We held that consideration of both alternatives was required by
the following sentence in K.S.A. 2002 Supp. 21-4603d(g):

"Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is
available in a conservation camp or a community intermediate sanction center and the defendant
meets all of the conservation camp's or a community intermediate sanction center's placement
criteria unless the court states on the record the reasons for not placing the defendant in a
conservation camp or a community intermediate sanction center."

Despite the error resulting from the district court's failure to consider both alternatives,
we did not vacate the sentence because the error was of no practical consequence. In reaching
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this conclusion, we took judicial notice pursuant to K.S.A. 60-409(b)(4) of a Department of
Corrections "Notice Concerning Community Intermediate Sanction Centers" that stated in part:

"'A community intermediate sanction center was never opened pursuant to [K.S.A. 2000 Supp. 21-
4603d] and there are no community intermediate sanction centers within the meaning of K.S.A.
2000 Supp. 21-4603d (nor any of its preceding versions) operating at this time in the State of
Kansas. Therefore, there is neither space available nor placement criteria for community
intermediate sanction centers for purposes of potential sentencing dispositions pursuant to K.S.A.
2000 Supp. 21-4603d.' 22 Kan. Reg. 835 (2003)." Wiegand, 275 Kan. at 847.

Although there was not a CISC in existence, we noted that placement at Labette was an
available alternative. Consequently, we held a "sentencing court shall consider placement at
Labette. If, in the future, a CISC or other conservation camp is established, information must be
presented to the court regarding the placement option." Wiegand, 275 Kan. at 847. As applied
in that case, we concluded the district court's failure to consider the nonexistent CISC
alternatives did not require us to vacate the sentence.

Applying Wiegand to this case, no CISC alternatives were presented at sentencing.
Regardless, under Wiegand the district court was required to consider placement at Labette.

Circumstances have since changed, however. On June 25, 2009, the Department of
Corrections issued a "Notice Concerning Cessation of Operations of Labette Correctional
Conservation Camps and Suspension of Intensive Substance Abuse Treatment Programming in
Kansas Department of Corrections Facilities." 28 Kan. Reg. 1026 (2009). The notice stated in
part:

"In regard to the former subject of this Notice, due to lack of appropriated funding for its
operation in Fiscal Year 2010, the Labette Community Correctional Conservation Camp for males
(more commonly known as the 'Labette County male boot camp') shall cease to operate as of June
30, 2009. It shall not thenceforth be available in practice as a sentencing disposition for male
offenders who are subject to possible placement therein by sentencing courts pursuant to K.S.A.
21-4603d(a)(5) or (g).

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"This Notice will further serve to confirm that placement of offenders in the Labette
Correctional Conservation Camp for females (more commonly known as the 'Labette County
female boot camp') has already been effectively curtailed in Fiscal Year 2009 due to a budgetary
rescission, and likewise, that said facility did not receive appropriate funding for operation in
Fiscal Year 2010, and will therefore also not be available in practice as a sentencing disposition
for female offenders.
. . . .
"This Notice is provided for the guidance of Kansas courts, prosecutors, members of the
defense bar, and the public in regard to making appropriate alternative sentencing dispositions for
those offenders subject to the provisions of K.S.A. 21-4603d(a) & (g), K.S.A. 2008 Supp. 21-
4704(p), and 21-4705(f), as amended." 28 Kan. Reg. at 1026-27 (2009).

In light of this notice, before oral arguments in this case we issued an order the purpose
of which was to "afford the parties reasonable opportunity to present information relevant to the
propriety of taking" judicial notice that Labette had closed. K.S.A. 60-412(d) (judicial notice in
proceedings subsequent to trial); see K.S.A. 60-409. At oral argument, the parties agreed it was
appropriate to take judicial notice of the Department of Corrections' announcement.

Hence, even though K.S.A. 2006 Supp. 21-4603d(g) imposes an obligation to consider
Labette, implementation of a Labette placement is impossible. As a result, if we were to vacate
the sentence and remand for a new sentencing, all the sentencing court could do is consider the
fact that Labette is closed. Bonner's requested remedy has been rendered moot, and a remand
would be futile. See State v. Johnson, 42 Kan. App. 2d 356, 359, 211 P.3d 861 (2009) (remand
for consideration of Labette would be useless formality); State v. Lewellyn, No. 100,640,
unpublished opinion filed September 18, 2009 (despite failure, under K.S.A. 21-4603d[g], to
consider on the record Labette or any other conservation camp or community intermediate
sanction center, "no purpose would be served by remanding the case" because "that option no
longer exists"); State v. Everett-Powell, No. 100,254, unpublished opinion filed August 28, 2009
(same; dealing with female defendant).

Simply put, a failure to comply with 21-4603d(g) is not reversible error if none of the
alternative nonprison sanctions listed in the statute is available. Consequently, we conclude the
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error in failing to consider placement at Labette does not require us to vacate the sentence in case
No. 08CR395I or to remand for resentencing.

BIDS APPLICATION FEE

Next, we consider Bonner's complaint that the journal entry of judgment in each case
required her to pay the $100 BIDS application fee when the court had not orally announced the
fee at the sentencing hearing or considered at sentencing the financial burden of the fee. Bonner
acknowledges that she did not raise any objections regarding the BIDS application fee before the
district court.

The application fee is provided for in K.S.A. 22-4529, which states in relevant part:

"Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto
shall pay an application fee in the amount of . . . $100 . . . to the clerk of the district court. If it
appears to the satisfaction of the court that payment of the application fee will impose manifest
hardship on the defendant, the court may waive payment of all or part of the application fee."

This court has recently rejected similar claims pertaining to the BIDS application fee. As
the Court of Appeals noted, in Hawkins this court established that the district court assesses the
application fee when a defendant applies for court-appointed counsel and that determining
whether the fee would cause manifest hardship is "a minor extension of the analysis which the
district court is already performing when assessing eligibility for court-appointed counsel."
Hawkins, 285 Kan. at 853. Then, in State v. Scaife, 286 Kan. 614, 625-26, 186 P.3d 755 (2008),
this court held that because a defendant incurs the obligation to pay the BIDS application fee
when the application is completed, an order in a journal entry of sentencing to pay an unpaid
application fee—even if not pronounced from the bench—is not improper. See State v. Andelt,
289 Kan. 763, 775, 217 P.3d 976 (2009) (approving the application of the rationale in Scaife).

More recently, this court held that an order to pay an application fee is merely an
imposition of costs and is neither punitive nor part of a sentence. Because the defendant's ability
to pay the fee is considered at the time the defendant submits an application for appointed
counsel, the district court is not required to make further findings at sentencing to validate the
16

assessment of the application fee. State v. Phillips, 289 Kan. 28, Syl. ¶¶ 4, 8, 210 P.3d 93
(2009); see Hawkins, 285 Kan. 842, Syl. ¶ 7 (once application fee is initially assessed, if any part
of the application fee remains unpaid at the time of sentencing, the district court may include any
unpaid fee in its sentencing order without making any additional findings); see also State v.
Casady, 289 Kan. 150, 157, 210 P.3d 113 (2009) (determining constitutional right to counsel
was safeguarded because K.S.A. 22-4529 allows waiver of fee in cases of manifest hardship or if
defendant is acquitted or case is dismissed).

In these cases, we reiterated that the district court should determine the propriety of
imposing the application fee at the time of the initial determination to appoint counsel. Further,
this determination does not require any subsequent findings by the district court at sentencing.
E.g., Phillips, 289 Kan. at 37-38.

Here, in neither case did Bonner ever raise the issue of her ability to pay before the
district court, and there is nothing in the record indicating that the district court failed to comply
with K.S.A. 22-4529 in assessing Bonner's BIDS application fee.

The Court of Appeals correctly affirmed the BIDS application fee.

APPRENDI ISSUE

Finally, Bonner contends that her constitutional rights under Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), were violated because her criminal history
was not proven to a jury beyond a reasonable doubt.

This court has repeatedly rejected this claim as controlled by State v. Ivory, 273 Kan. 44,
41 P.3d 781 (2002). See, e.g., State v. Raschke, 289 Kan. 911, 912, 219 P.3d 481 (2009);
Gonzales, 289 Kan. at 372. Bonner's contention has no merit.

The decisions of the Court of Appeals and the district court are affirmed on all issues that
are subject to our review, which did not include the Court of Appeals order vacating the
imposition of BIDS attorney fees in both cases.