State v. Gardner

No. 103,312

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GLEN GARDNER,
Appellant.

SYLLABUS BY THE COURT

1.
According to K.S.A. 2009 Supp. 22-2802(15), the district court can only order a
person to pay a maximum of $15 each week for pretrial release supervision costs.

2.
When general and specific statutes conflict, the specific statute controls unless it
appears the legislature intended otherwise.

3.
In criminal cases, the district court does not have discretion to ignore the limits on
costs specifically imposed by the legislature and order a greater amount to be paid by the
defendant as a condition of probation.

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed January 14, 2011.
Vacated and remanded with directions.

Courtney T. Henderson, of Billam & Henderson, LLC, of Olathe, for appellant.

Ramsey A. Olinger, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M.
Howe, district attorney, and Steve Six, attorney general, for appellee.
1

Before HILL, P.J., LEBEN and STANDRIDGE, JJ.

HILL, J.: Under Kansas law, a judge has extensive discretion to order a defendant
to complete certain tasks as a proviso of probation. But the exercise of that discretion
cannot thwart the clear intent of the Legislature expressed in a specific statute. In other
words, a judge cannot use his or her discretion, granted in a general statute, to ignore the
clear commands stated in a specific statute. Here, as a condition of probation, the
sentencing court ordered Glen Gardner to pay all $121 of the costs of an alcohol monitor
he was required to wear as a condition of release from jail before trial. According to
K.S.A. 2009 Supp. 22-2802(15), the district court can only order a person to pay a
maximum of $15 each week for pretrial release supervision costs—or $60 total in
Gardner's case. We hold the district court does not have discretion to ignore the limit on
costs imposed by the Legislature and, therefore, vacate the order assessing costs against
Gardner. We remand the matter with directions to impose the cost amount as limited by
the Legislature.

After accepting his guilty plea, the court placed Gardner on probation.

There is no dispute about the history of this case. The State originally charged
Gardner with one count of criminal threat and one count of domestic battery. One of the
pretrial release conditions imposed on Gardner required him to wear an alcohol monitor.
Gardner pled guilty to one count of domestic battery in violation of K.S.A. 2009 Supp.
21-3412a and the State dismissed the criminal threat charge.

The court sentenced Gardner to serve 112 days in the county jail, suspended his
incarceration, and placed him on 12 months' probation. In granting probation, the district
court ordered that Gardner—among other things—pay $121 for the cost of the alcohol
monitor.

2

Indeed, at sentencing, Gardner's counsel asked the court to waive the costs and
fees associated with the case. Defense counsel noted that Gardner was unemployed and
unable to work and is the primary caretaker of his epileptic son—whose state benefits had
been cut. In response, the court pointed out that Gardner had not paid the alcohol monitor
cost of $120. Defense counsel responded that (1) Gardner had paid some of the amount
due, and (2) the defense believed the court had authority to waive the cost because there
was a weekly limit for such costs set by K.S.A. 2009 Supp. 22-2802(15).

The court rejected this argument: "I'm imposing the amount. If he wants to appeal
that, that's fine. That was a privilege to remain on [the alcohol monitor] and not in
custody which he chose to accept. I'm imposing the full amount today as a condition of
probation, which I believe today is $120." In the order of probation, the district court
stated that Gardner must pay $121 for the cost of the alcohol monitor.

The court had no discretion to order Gardner to pay the full amount of the monitor
expense.

In this appeal, Gardner claims the district court erred in ordering him to pay $121
for the cost of the alcohol monitor. In Gardner's view, the district court can only order a
person to pay a maximum of $15 per week for supervision costs according to K.S.A.
2009 Supp. 22-2802(15). Noting he was released and monitored for 4 weeks, Gardner
claims the maximum he can be ordered to pay is $60. The State counters that Gardner
was not ordered to pay the cost of the monitoring as a condition of release, but as a
condition of probation. Thus, the State argues that K.S.A. 21-4610, a statute that gives the
district court broad discretionary power to impose probation conditions, controls and
K.S.A. 2009 Supp. 22-2802(15) does not apply.

3

Clearly, this appeal involves the interpretation and application of two statutes.
Thus, we will exercise unlimited review over these questions of law. See State v. Cott,
288 Kan. 643, 645, 206 P.3d 514 (2009).

Our law, K.S.A. 2009 Supp. 22-2802, governs the release of persons charged with
committing a crime and the district court's authority to impose conditions of release. The
statute states that the district court may impose any condition deemed reasonably
necessary to assure a person's appearance at the preliminary examination or trial. K.S.A.
2009 Supp. 22-2802(1)(c). The statute further provides that the court "may order the
person to pay for any costs associated with the supervision of the conditions of release of
the appearance bond in an amount not to exceed $15 per week of such supervision."
(Emphasis added.) K.S.A. 2009 Supp. 22-2802(15).

In turn, K.S.A. 21-4610 governs the district court's authority to impose probation
conditions. The statute states that the court may impose any conditions of probation that
it deems proper, including the requirement that the defendant pay a fine or costs
applicable to the offense. K.S.A. 21-4610(c)(7).

The district court ordered Gardner to wear the monitoring device as a condition of
release on bond, not as a condition of probation. When the court later ordered Gardner to
pay for the cost of the device, it essentially required him to pay for a cost "associated
with the supervision of the conditions of release"—which is governed by K.S.A. 2009
Supp. 22-2802(15). In enacting 22-2802(15), our legislature placed a specific cap on the
amount that a person can be required to pay for supervision costs incurred while on
release.

A fundamental rule of statutory construction controls this issue. Our rule states
that when general and specific statutes conflict, the specific statute controls unless it
appears the legislature intended otherwise. State v. Casey, 42 Kan. App. 2d 309, 319, 211
4

5

P.3d 847 (2009). Obviously, K.S.A. 2009 Supp. 22-2802(15) deals specifically with what
a court can order a person to pay toward these costs. The general statute, K.S.A. 21-
4610(c)(7), deals with the general subject of the payment of fines and costs. The specific
statute prevails here.

To rule otherwise would mean that a court could ignore the clear intent of the
legislature. The public policy for pretrial release is stated in K.S.A. 22-2801: "to assure
that all persons, regardless of financial status, shall not needlessly be detained pending
their appearance to answer charges." We hold the legislature meant what it said. There is
a limit of $15 a week on all such pretrial release costs. The district court's broad
discretion could not overcome this limit.

We vacate the cost order in this case and remand the matter to the district court to
impose an order that reflects the limits placed by the legislature.