State v. Copes

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,403

STATE OF KANSAS,
Appellee,

v.

MARY JEAN COPES,
Appellant.


SYLLABUS BY THE COURT

1.
Statutory interpretation is a question of law over which appellate courts have unlimited
review.

2.
K.S.A. 22-4513(a) requires a district court to tax Board of Indigents' Defense Services
attorney fees against a criminal defendant in appointed counsel cases and provides the fees shall
be enforced as judgments for payment of money in civil cases. In setting the amount of the fee,
K.S.A. 22-4513(b) requires the district court to take into consideration the financial resources of
the defendant and the nature of the burden that payment of such sum will impose. A district
court must consider these factors on the record at the time of assessing the fees.

3.
A defendant may waive the right to have a district court make the findings required by
K.S.A. 22-4513(b) and may do so in a written plea agreement. If there is a knowing, voluntary,
and intelligent waiver, the district court may order payment of a Board of Indigents' Defense
Services attorney fee without making the findings required by K.S.A. 22-4513 and State v.
Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006).



2

4.
Application of fundamental contract principles is generally the best means to fair
enforcement of a plea agreement, as long as courts remain mindful that the constitutional
implications of the plea bargaining process may require a different analysis in some
circumstances.

5.
For a waiver to be valid under the Due Process Clause, it must be an intentional
relinquishment or abandonment of a known right or privilege.

6.
The following factors are among those to be considered in determining whether the
legislature's use of "shall" makes imposition of a fine mandatory or directory: (1) legislative
context and history, (2) substantive effect on a party's rights versus merely form or procedural
effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject
matter of the statutory provision.

7.
The word "shall" in K.S.A. 2009 Supp. 8-1567(g)(1) makes imposition of a $2,500 fine
for a fourth or subsequent driving under the influence conviction mandatory, rather than
directory, and in determining the amount of the fine a district court need not take into account the
financial resources of the defendant and the nature of the burden its payment will impose, per
K.S.A. 21-4607(3).

8.
K.S.A. 21-4607(3) requires a district court to 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
fourth or subsequent offense of driving under the influence of alcohol, i.e., whether the defendant
must pay a monetary fine or provide community service under K.S.A. 2009 Supp. 8-1567(j).


3

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 19, 2008.
Appeal from Montgomery district court; RUSSELL D. CANADY, judge. Judgment of the Court of Appeals affirming
the district court is reversed. Judgment of the district court is reversed and remanded with directions. Opinion filed
February 26, 2010.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the
same office, was on the brief for appellant.

David R. Maslen, county attorney, argued the cause, and Steve Six, attorney general, was with him on the
brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: On review of a Court of Appeals' decision, we consider two issues of first
impression for this court. Both arise from the district court's failure to consider a defendant's
financial resources when imposing attorney fees and a fine.

First, can a defendant waive a K.S.A. 22-4513(b) requirement that a district court take
into consideration "the financial resources of the defendant and the nature of the burden that
payment of such sum will impose" in setting attorney fees in Board of Indigents' Defense
Services (BIDS) cases and, if so, can that waiver occur when a plea agreement states that the
defense attorney will recommend payment of costs and appointed attorney fees in an "amount to
be determined"? The Court of Appeals held there could be a waiver through a plea agreement
and that there was a waiver in this case. State v. Copes, No. 99,403, unpublished opinion, filed
December 19, 2008. While we agree a defendant can waive his or her statutory rights under
K.S.A. 22-4513(b), we hold there was not an intentional relinquishment of a known right in this
case because the plea agreement merely states defense counsel will recommend that the
defendant pay attorney fees and does not contain an explicit waiver of rights.

The second issue is whether a district court must consider a defendant's financial
resources before imposing a fine for a conviction of driving under the influence of alcohol
(DUI), fourth offense, pursuant to K.S.A. 2009 Supp. 8-1567(g)(1)? According to the defendant,
the answer to this question is "yes" because K.S.A. 21-4607(3) states: "In determining the
4

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." The Court of
Appeals rejected this argument and answered the question "no," concluding K.S.A. 21-4607(3) is
a general statute and is not applicable in light of the more specific applicability of K.S.A. 2009
Supp. 8-1567(g)(1), which requires a $2,500 fine for a fourth or subsequent DUI conviction.
State v. Copes, slip op. at 5-6. On review of that decision, we agree with the Court of Appeals'
conclusion that the mandatory nature of the fine means financial resources need not be
considered in setting the fine amount. Nevertheless, we disagree with the ultimate conclusion
that K.S.A. 21-4607(3) has no application because the statute also applies to the determination of
the method of payment, and K.S.A. 2009 Supp. 8-1567(j) provides an alternative method of
payment by allowing the district court to order payment of a DUI fine through community
service.

FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 2005, Copes entered a no contest plea to DUI, fourth offense, pursuant
to K.S.A. 2005 Supp. 8-1567(g). The district court sentenced Copes to 12 months in jail, with a
postrelease supervision term of 12 months. In addition, the court ordered Copes to pay $350 in
BIDS attorney fees and assessed a mandatory fine of $2,500 pursuant to K.S.A. 2005 Supp. 8-
1567(g). On direct appeal, Copes argued the district court erred by requiring her to pay the
BIDS attorney fees and by imposing the $2,500 fine without first determining on the record
whether she had the ability to pay. In State v. Copes, the Court of Appeals affirmed the district
court.

Regarding the BIDS attorney fees, the Court of Appeals acknowledged that in State v.
Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), this court held, pursuant to K.S.A. 22-
4513(b), the sentencing court "must consider the financial resources of the defendant and the
nature of the burden that payment will impose explicitly, stating on the record how those factors
have been weighed in the court's decision." (Emphasis added.) Copes, slip op. at 3. The
sentencing transcript indicates the district court did not consider any of the factors listed in
K.S.A. 22-4513.
5

The Court of Appeals concluded, however, that Copes agreed to pay BIDS attorney fees
as part of the plea agreement. Although the plea agreement did not specify an exact amount of
BIDS attorney fees, Copes agreed that at sentencing her attorney "will recommend" that she be
required to pay the costs and appointed attorney fees in "the amount to be determined." The
amount of $350 was written into the journal entry at sentencing. Following the rationale of State
v. Perry, 39 Kan. App. 2d 700, 183 P.3d 12, rev. denied 286 Kan. 1184 (2008), the Court of
Appeals held that Copes effectively waived her statutory rights under Robinson and K.S.A. 22-
4513. Copes, slip op. at 3.

Regarding the district court's imposition of a $2,500 fine without first considering Copes'
financial resources, the Court of Appeals held that under the circumstances—where the fine was
mandatory and not discretionary—the district court was not required to make findings about
Copes' ability to pay. The panel noted that K.S.A. 21-4607(3)—which requires a district court
determining the amount and method of payment of a fine to "take into account the financial
resources of the defendant and the nature of the burden that its payment will impose"—is a
general statute. The more specific statute, K.S.A. 2009 Supp. 8-1567, controls over the general
statute, and K.S.A. 2009 Supp. 8-1567(g)(1) mandates the imposition of a $2,500 fine for a
fourth or subsequent DUI offense and does not contain a provision for waiver of the fine. The
Court of Appeals held that in this situation the district court was not required to make the
findings under Robinson and K.S.A. 21-4607(3). Copes, slip op. at 5-6.

This court granted the petition for review filed by Copes.

ANALYSIS

Both issues in this appeal involve statutory interpretation, and statutory interpretation is a
question of law over which appellate courts have unlimited review. See State v. Raschke, 289
Kan. 911, Syl. ¶ 3, 219 P. 3d 481 (2009) (considering K.S.A. 21-4607 and fine provision);
Robinson, 281 Kan. at 539 (considering BIDS fees). Because a question of law is presented and
that question is determinative of the appellate issues (and hence the case), we are able to consider
Copes' argument even though she did not raise the issues before the district court. See State v.
Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008); see also Raschke, 289 Kan. 911, Syl.
6

¶ 2 (recognizes general rule that issue not raised in district court cannot be the basis for an appeal
and rule's exceptions, including when newly asserted claim involves only a question of law
arising on proved or admitted facts and is determinative of the case; applies exception to issue
regarding interpretation of K.S.A. 21-4607); Robinson, 281 Kan. 538 (implicitly applying
exception to issue regarding imposition of BIDS fees).

BIDS ATTORNEY FEES

First, Copes argues that the district court erred by ordering her to reimburse BIDS
attorney fees without first considering her financial resources and the burden such payment will
impose as required by K.S.A. 22-4513(b). See Robinson, 281 Kan. 538. In response, the State
argues that Copes effectively contracted away her rights under K.S.A. 22-4513(b) in her plea
agreement. Accordingly, the district court was not required to consider Copes' financial
resources or the burden paying the BIDS attorney fees would have on her.

K.S.A. 22-4513(a) requires that BIDS attorney fees "shall be taxed" against the defendant
and "shall be enforced" as judgments for payment of money in civil cases. In setting the amount
of the fee, K.S.A. 22-4513(b) requires the district court to take into consideration "the financial
resources of the defendant and the nature of the burden that payment of such sum will impose."
Applying that requirement, this court has held that a district court must consider these factors on
the record at the time the fee is assessed. Robinson, 281 Kan. at 546; see State v. Phillips, 289
Kan. 28, 43, 210 P.3d 93 (2009).

According to the Court of Appeals, these same rules do not apply if a defendant waives
his or her statutory rights under Robinson and K.S.A. 22-4513(b) in a plea agreement. Copes did
so, according to the Court of Appeals, because her plea agreement stated that "[a]t the time of
sentencing, my attorney will recommend . . . [t]hat I be required to pay the costs of this action,
and pay appointed counsel fees in the amount to be determined." In so holding, the panel relied
upon Perry, 39 Kan. App. 2d 700.

7

In Perry, a plea agreement required the defendant to pay "'the costs of this action, and
pay appointed counsel fees in the amount of $150.'" Perry, 39 Kan. App. 2d at 700. In finding
this agreement amounted to a waiver of rights granted by K.S.A. 22-4513(b), the Court of
Appeals first observed that a plea agreement is akin to a contract. Perry, 39 Kan. App. 2d at 702
(citing State v. Wills, 244 Kan. 62, 68-69, 765 P.2d 1114 [1988]). Next, the court noted that both
parties to a plea agreement are bound by its terms, and Kansas appellate courts have consistently
forced the parties to abide by their agreement. See, e.g., State v. Ratley, 253 Kan. 394, Syl. ¶ 5,
855 P.2d 943 (1993). The Perry court observed that Robinson recognized a criminal defendant's
statutory right to have the district court take into account the defendant's financial resources and
the nature of the burden that payment will impose before determining the amount and method of
BIDS attorney fee reimbursement. But in a plea agreement a "defendant waives statutory rights
or constitutional rights in exchange for dismissal of other criminal charges or prosecutorial
recommendations at sentencing." Perry, 39 Kan. App. 2d at 702. Consequently, the Perry court
found "no reason that a statutory right of this nature cannot be bargained away in connection
with a plea agreement. Far more basic constitutional rights are validly bargained away in such
agreements." Perry, 39 Kan. App. 2d at 702.

Applying these points, the Court of Appeals concluded that if a plea "agreement is
entered into voluntarily, knowingly, and intelligently, the terms of such an agreement are clearly
enforceable as a matter of law. See State v. Shopteese, 283 Kan. 331, 340-41, 153 P.3d 1208
(2007)." Perry, 39 Kan. App. 2d at 702. Therefore, the Perry court held that where the
defendant has agreed, as a part of an otherwise valid plea agreement, "to pay a specific portion of
BIDS attorney fees," the district court may forego the statutory procedure normally required by
Robinson and order such reimbursement in the journal entry of sentencing. Perry, 39 Kan. App.
2d at 702.

In the present case, although Copes' plea agreement did not specify an exact sum of BIDS
fees, the Court of Appeals found Copes' situation to be comparable to that in Perry.

This result is contrary to the conclusion of a different Court of Appeals panel that
disagreed with the notion of applying Perry to a situation where the amount of BIDS fees is not
8

specified in the plea agreement. In the unpublished opinion of State v. Gillespie, No. 100,570,
filed September 18, 2009, a split panel found Perry to be distinguishable. There, Gillespie's plea
agreement contained language identical to Copes' in that it specifically stated his attorney "will
recommend" that Gillespie be required to pay "appointed counsel fees in the amount to be
determined." Like the plea agreement in our case, Gillespie's agreement did not say he agrees to
pay fees, nor was a specific amount of BIDS attorney fees mentioned in the agreement.

The Gillespie majority emphasized that unlike the situation in Perry, Gillespie merely
agreed that his attorney would make the general recommendation regarding the payment of
BIDS attorney fees. Further, the amount of fees was left open-ended in Gillespie's plea
agreement. The majority remained unconvinced that Gillespie waived his rights under Robinson
"for the imposition of an open-ended BIDS fee." Copes, slip op. at 7-8. The attorney fee was,
therefore, reversed and the case was remanded for a hearing to consider Gillespie's financial
resources. Copes, slip op. at 8.

The dissenting judge disagreed with the Gillespie majority's decision to remand the case
to the district court for a Robinson analysis. The dissent would have followed the rationale of
Perry and would have found that Gillespie bargained away his right to the financial
considerations mandated by Robinson. Following the reasoning in Perry, the dissent reiterated
that a defendant can plea bargain away the most basic fundamental constitutional rights and can
also bargain away "far less significant statutory rights." Copes, slip op. at 9. As for the fact that
the amount of BIDS fees was specified in Perry's plea agreement, the Gillespie dissent observed
that the district court was not bound by the terms of the plea agreement and, thus, was not
obligated to impose the agreed-upon amount of fees. For this reason, the dissent found it of no
significance that Gillespie's plea agreement did not state a specific amount of BIDS fees. Copes,
slip op. at 10.

Both of these Court of Appeals' decisions are consistent to the extent of accepting that a
defendant can waive rights in a plea agreement and that the waiver may extend to the right to
have a court consider statutory factors in setting attorney fees. The first of these premises is
consistent with decisions of this court. See, e.g., State v. Patton, 287 Kan. 200, Syl. ¶ 13, 195
9

P.3d 753 (2008) (knowing and voluntary waiver of a statutory right to appeal is generally
enforceable); State v. Robinson, 233 Kan. 384, 385, 662 P.2d 1275 (1983) (same relating to
statutory right to jury trial). This court has not considered the second of these premises—that the
same rule would apply to the right to have statutory findings regarding the amount of attorney
fees. We note, however, other courts have reached this same conclusion. See, e.g., People v.
Scott, 176 P.3d 851, 853 (Colo. App. 2007) (parties to plea agreement may stipulate that the
sentence will require reimbursement of court-appointed counsel costs); State v. Moore, 500
N.W.2d 75, 76 (Iowa 1993) (indicating that parties are not prevented from entering into
agreement concerning payment of costs and attorney fees); State v. Thorstad, 261 N.W.2d 899,
902 (N.D.), cert denied 436 U.S. 906 (1978) (agreement to pay restitution for cost of court-
appointed attorney meant financial resources and other statutory factors did not have to be
considered); State v. Thrower, 62 Ohio App. 3d 359, 376, 575 N.E.2d 863 (1989) (defendants
failed to affirmatively show that payment of counsel fees out of forfeiture proceeds was part of
the plea agreement which was stated on the record).

We agree with these authorities in general and find no reason to distinguish a knowing,
voluntary, and intelligent waiver of the statutory rights under K.S.A 22-4513(b) from waivers of
constitutional rights through the same process. Hence, we conclude a defendant may waive the
right to have a district court make the findings required by K.S.A. 22-4513(b) and may do so in a
written plea agreement. If there is a knowing, voluntary, and intelligent waiver, the district court
may order payment of BIDS attorney fees without making the findings required by K.S.A. 22-
4513 and Robinson, 281 Kan. 538.

In addition, we agree with the premise of Perry and Gillespie that a plea agreement is
generally subject to contract principles. In several cases, we have noted that application of
fundamental contract principles is generally the best means to fair enforcement of a plea
agreement, as long as courts remain mindful that the constitutional implications of the plea
bargaining process may require a different analysis in some circumstances. See State v. Boley,
279 Kan. 989, 996, 113 P.3d 248 (2005); see also Santobello v. New York, 404 U.S. 257, 260-62,
30 L. Ed. 2d 427, 92 S. Ct. 495 (1971) (accused pleading guilty must be counseled, absent a
waiver).
10

Nevertheless, it is a fundamental principle of contract law that there must be a meeting of
the minds regarding essential terms in order to have a binding contract. Mohr v. State Bank of
Stanley, 244 Kan. 555, 572, 770 P.2d 466 (1989); see State v. Thompson, 15 Neb. App. 764, 773,
735 N.W.2d 818 (2007) (as with other contracts, courts cannot rewrite plea agreement to include
terms not present). Here, there is not an agreement regarding the amount of the fees or, more
significantly, as to a waiver of the rights granted by K.S.A. 22-4513(b). Although Copes' written
plea agreement contained an extensive recitation of rights and an explicit waiver of those rights,
that recitation made no mention of attorney fees or the district court's obligation to consider
Copes' financial resources or the burden the fees would impose. In other words, the contract
terms the State seeks to enforce—the agreement to waive rights under K.S.A. 22-4513(b) and the
fee amount—are missing from the contract.

The absence of an explicit waiver of the rights granted by K.S.A. 22-4513(b)―i.e., to
have a district court consider financial resources and the burden of an attorney fee
judgment―creates more than a contract problem for the State: For a "'waiver to be valid under
the Due Process Clause, it must be "an intentional relinquishment or abandonment of a known
right or privilege."' [Citations omitted.]" State v. Moses, 280 Kan. 939, 946, 127 P.3d 330
(2006). Under the plea agreement before us, we cannot determine that there was an intentional
relinquishment of a known right. Rather, Copes merely acknowledged that her attorney "will
recommend" that she be required to pay "appointed counsel fees in the amount to be
determined." This portion of Copes' plea agreement placed her in the same position she would
have been had the plea agreement never mentioned the BIDS attorney fees at all—K.S.A. 22-
4513(a) requires that all convicted indigent defendants "shall be taxed" the BIDS attorney fees.
And with this taxing of fees comes the required consideration of the defendant's financial
resources under K.S.A. 22-4513(b).

This case is remanded to the district court with directions to consider Copes' financial
resources and the burden of paying the BIDS attorney fees.



11

FINE AND FINANCIAL RESOURCES

Next, Copes argues the district court erred by imposing the statutorily mandated fine of
$2,500, pursuant to K.S.A. 2009 Supp. 8-1567(g)(1), for a fourth DUI conviction without first
considering her financial resources and the burden its payment will impose. She bases this
argument on the language in K.S.A. 21-4607(3), which provides that the district court, when
determining "the amount and method of payment" of a fine, "shall take into account the financial
resources of the defendant and the nature of the burden that its payment will impose." (Emphasis
added.) The State argues that K.S.A. 21-4607(3) does not apply because K.S.A. 2009 Supp. 8-
1567(g)(1), a specific statute, controls and provides that upon being convicted of a fourth or
subsequent DUI conviction, a person "shall" be fined $2,500.

Relevant Statutes

To resolve this issue, two statutes must be considered. The first, K.S.A. 21-4607(3),
provides:

"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."

The second, K.S.A. 2009 Supp. 8-1567, provides in pertinent part:

"(g)(1) On the fourth or subsequent conviction of a violation of this [DUI] section, a
person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than
one year's imprisonment and fined $2,500. . . .
. . . .
"(j) In lieu of payment of a fine imposed pursuant to this section, the court may order
that the person perform community service specified by the court. The person shall receive a
credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the
specified community service. The community service ordered by the court shall be required to be
performed not later than one year after the fine is imposed or by an earlier date specified by the
court. If by the required date the person performs an insufficient amount of community service to
reduce to zero the portion of the fine required to be paid by the person, the remaining balance of
the fine shall become due on that date."
12


These provisions raise separate considerations relating to the application of K.S.A. 21-
4607(3): 8-1567(g) relates to the amount of the fine and subparagraph (j) relates to the method
of payment.

Amount of Fine

With regard to the State's argument about the mandatory nature of the amount of the fine
for a fourth or subsequent DUI conviction, this court reviewed a similar issue in Raschke, 289
Kan. 911, where we held: "When a sentencing judge imposes a mandatory minimum fine, he or
she need not take into account the financial resources of the defendant and the nature of the
burden that its payment will impose, per K.S.A. 21-4607(3)." Raschke, 289 Kan. 911, Syl. ¶ 6.
There, Raschke pleaded guilty to four counts of forgery in violation of K.S.A. 21-3710(a)(1).
Subsections of the statute set forth fine amounts for first, second, and third or subsequent forgery
convictions. For a first conviction, "a person shall be . . . fined the lesser of the amount of the
forged instrument or $500"; for a second conviction, "a person shall be fined the lesser of the
amount of the forged instrument or $1000"; for a third or subsequent conviction, "a person shall
be . . . fined the lesser of the amount of the forged instrument or $2,500." K.S.A. 21-3710(b)(2),
(3), and (4).

In determining whether the legislature's use of "shall" makes the forgery fine provisions
mandatory or directory, this court considered the following factors: (1) legislative context and
history, (2) substantive effect on a party's rights versus merely form or procedural effect; (3) the
existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the
statutory provision. We concluded that the word "shall" in K.S.A. 21-3710(b)(2)-(4) is
mandatory rather than directory. In other words, "[a]t least the minimum fine must be imposed
upon every forgery conviction." Raschke, 289 Kan. at 922.

Then, we considered whether the financial consideration requirements of K.S.A. 21-
4607(3) must be applied to the mandatory minimum forgery fines. We concluded that they do
not. Considering the legislative history of the forgery provisions, the Raschke court noted that
there was no reference in the legislative committee notes to an overlay of K.S.A. 21-4607.
13

Moreover, K.S.A. 21-3710(b)(2)-(4) is the newer of the two statutes and "presumably the more
recent statement of legislative intent." Raschke, 289 Kan. at 923. In addition, K.S.A. 21-
3710(b)(2)-(4) deals specifically with fines for forgery, whereas K.S.A. 21-4607(3) deals with
criminal fines generally. The Raschke court concluded: "The concept of inflexible mandatory
minimum fines . . . is incompatible with the malleability inherently injected into fine setting by
consideration of defendant's financial circumstances." Raschke, 289 Kan. at 924.

In the present case, a similar analysis applies in considering whether a fine must be
imposed and in determining the amount of the fine for a fourth or subsequent DUI conviction. In
considering whether the word "shall" in K.S.A. 2009 Supp. 8-1567(g)(1) is mandatory or
directory, we consider the four factors laid out in Raschke. With regard to the first factor—
legislative context and history—clearly the DUI fines are specific to the offense and correspond
to the number of convictions. The legislative history of subsection (g) is not particularly helpful
but shows that the $2,500 fine was set for fourth or subsequent DUI convictions in 2001. See L.
2001, ch. 200, sec. 14. Before the 2001 amendment, a fourth DUI conviction received the same
possible fine as a third DUI conviction in that "third or . . . subsequent conviction[s]" were to be
fined "not less than $1,000 nor more than $2,500." See L. 1994, ch. 291, sec. 2. By placing the
sole fine of $2,500 on fourth or subsequent convictions, the legislature showed its intent to
withdraw any discretionary range for this category of offenders.

With regard to the second factor—substantive effect on a party's rights—it is indisputable
that "[p]rescription of a minimum criminal sentence certainly is material; it is not simply a mode
of procedure intended to secure order, system, and dispatch of the public business." Raschke,
289 Kan. at 921-22. The Raschke analysis of the third factor—the existence or nonexistence of
consequences for noncompliance—applies equally to the DUI fine for fourth or subsequent
offenses: Although the consequences for noncompliance are implicit, they are real, and at a
minimum raise a significant question of whether a DUI sentence without a fine in some amount
would be illegal under K.S.A. 22-3504 and subject to vacation and correction at any time. See
Raschke, 289 Kan. at 921-22. Further, like the forgery statute, there is no "waiver" provision in
the DUI statute. Under the fourth factor, the Court of Appeals has previously concluded the
imposition of a DUI fine is mandatory. State v. Wenzel, 39 Kan. App. 2d 194, 202-03, 177 P.3d
14

994 (2008), aff'd in part Phillips, 289 Kan. 28; State v. Segovia, 19 Kan. App. 2d 493, 494, 872
P.2d 312 (1994); State v. Shuster, 17 Kan. App. 2d 8, 9, 829 P.2d 925 (1992). In Raschke, this
court stated: "We agree with the reasoning of Shuster and Segovia and the most recent Court of
Appeals' case examining a mandatory fine for driving under the influence and K.S.A. 21-4607,
State v. Wenzel, 39 Kan. App. 2d 194, 202-03, 177 P.3d 994 (2008)." Raschke, 289 Kan. at 924.
Hence, the precedent of Wenzel, Segovia, and Shuster establishes a pattern of demonstrating the
mandatory, not directory, nature of DUI fines.

This leads to the conclusion that the word "shall" in K.S.A. 2009 Supp. 8-1567(g)(1)
makes imposition of a $2,500 fine for a fourth or subsequent driving under the influence
conviction mandatory, rather than directory. As we concluded in Raschke, the specific, more
recent requirement of a mandatory fine leaves no room for considering financial resources. The
district court was required to impose a $2,500 fine against Copes for her fourth DUI conviction
and was not required to take into account the financial resources of the defendant and the nature
of the burden its payment will impose, per K.S.A. 21-4607(3), in deciding to impose the fine and
in deciding the amount of the fine.

Method of Payment

There remains, however, a question of whether the district court was required to consider
Copes' financial resources in determining the method of payment. Again, K.S.A. 21-4607(3)
states the district court "shall take into account the financial resources of the defendant and the
nature of the burden that its payment will impose" when "determining the amount and method of
payment of a fine." (Emphasis added.) The community service option provided in K.S.A. 2009
Supp. 8-1567(j) creates an alternative method of payment.

The impact of the community service option was not addressed by the Court of Appeals.
Moreover, the parties had not addressed the provision until prompted to do so by this court's
questions at oral argument. Nevertheless, in applying a statute, courts are required to consider a
statute as a whole. See Southwestern Bell Telephone Co. v. Beachner Const. Co., Inc., 289 Kan.
15

___, 221 P.3d 588 (2009). Consequently, we cannot ignore K.S.A. 2009 Supp. 8-1567(j) and its
grant of discretion to order payment of a DUI fine through community service.

Where the amount of fine is discretionary, this court has required the district court to
"state on the record that he or she has taken into account the financial resources of the defendant
and the nature of the burden that payment of the fine will impose." State v. McGlothlin, 242
Kan. 437, 441, 747 P.2d 1335 (1988). We see no reason to require a different procedure when
the method of payment is discretionary. In doing so, we recognize there are considerations other
than ability to pay that are relevant to the determination of whether the public service option will
be ordered. Nevertheless, the existence of other factors influencing a court's discretion does not
diminish a statutory requirement that a specific factor be considered. In addition, the method of
payment may be equally relevant to a district court's decision in situations where a monetary fine
imposes little or no burden on a defendant; in such a case, the court might determine the
commitment of time to community service is a more appropriate penalty. Consequently,
applying K.S.A. 21-4607(3) we hold 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 fourth or subsequent DUI offense, i.e., whether the defendant must pay a monetary fine or
provide community service under K.S.A. 2009 Supp. 8-1567(j). Contrary holdings in Wenzel, 39
Kan. App. 2d 194; Segovia, 19 Kan. App. 2d 493; and Shuster, 17 Kan. App. 2d 8, are overruled.

In summary, regardless of Copes' financial resources, the district court was correct to
impose the entire $2,500 fine, a mandatory fine, for her fourth DUI conviction. But the
legislature clearly contemplated the notion of financial hardship or the burden of payment by
allowing the discretionary imposition of community service (credit of $5 per hour) to offset the
total amount due. By failing to consider Copes' ability to pay and the burden the payment will
impose on her, the district court bypassed the consideration of whether community service was
an option for her.

The Court of Appeals' decision affirming the district court is reversed and remanded.
The district court's decision is reversed and remanded for consideration of Copes' financial
16

resources with respect to the amount of BIDS attorney fees she is required to pay and to the
method of payment of her DUI fine.