State v. Ellis

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NOT DESIGNATED FOR PUBLICATION

No. 115,217

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BOBBY RAY ELLIS,
Appellant.


MEMORANDUM OPINION

Appeal from Montgomery District Court; GARY HOUSE, judge. Opinion filed September 1, 2017.
Affirmed in part, dismissed in part, vacated in part, and remanded with directions.

Kristen B. Patty, of Wichita, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY and BUSER, JJ.

BUSER, J.: Bobby Ray Ellis entered a no contest plea and was convicted of
possession of methamphetamine and residential burglary. On appeal, Ellis contends that
the district court erred in sentencing him to prison time rather than to drug treatment
pursuant to K.S.A. 2016 Supp. 21-6824, commonly known as Senate Bill 123. Ellis also
contends that the district court erred in ordering him to pay $400 to reimburse the Board
of Indigents' Defense Services (BIDS) for attorney fees and to pay the BIDS application
fee without considering his financial resources or considering the burden that the
imposition of these fees would place on him. In addition, Ellis contends that the district
court erred in failing to consider his financial resources before ordering him to pay $200
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for his Senate Bill 123 assessment. For the reasons set forth in this opinion, we vacate
two parts of Ellis' sentence and remand this case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On June 2, 2015, Ellis entered a no contest plea to two charges. Specifically, he
pled no contest to possession of methamphetamine, a severity level 5 drug felony in
violation of K.S.A. 2014 Supp. 21-5706(a), and to residential burglary, a severity level 7
person felony in violation of K.S.A. 2014 Supp. 21-5807(a)(1). The district court
accepted his plea and found him guilty of both charges.

Subsequently, Ellis received an SB 123 drug abuse assessment, which revealed
there was a high probability that he had a moderate to severe substance abuse disorder.
Additionally, Ellis' criminal risk-need assessment indicated a score of 40. After receiving
the results from these assessments, Ellis filed a motion asking that the district court
sentence him in accordance with SB 123, specifically K.S.A. 2014 Supp. 21-6824(a)(1).

The district court denied Ellis' motion, finding that he posed a risk to public safety,
and sentenced him to a 30-month prison term for possession of methamphetamine, with
12 months of postrelease supervision. The district court also imposed a concurrent 12-
month sentence for the residential burglary conviction. Additionally, the district court
ordered Ellis to reimburse BIDS for attorney fees in the amount of $400 and ordered him
to pay $200 for his SB 123 assessment.

Ellis timely appealed following the imposition of his sentence.




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ANALYSIS

Senate Bill 123 Drug Treatment

On appeal, Ellis first contends that the district court erred by failing to sentence
him to SB 123 drug treatment instead of imprisonment. However, we do not reach the
merits of this issue. Instead, we find the issue to be moot under the circumstances
presented.

On January 23, 2017, this court issued an order to show cause requiring Ellis to
show why the issue relating to SB 123 drug treatment is not moot. In response, Ellis'
attorney provided us with documentation showing that he was released from the Larned
Correctional Mental Health Facility on December 30, 2016, and is currently on
postrelease supervision in Montgomery County. Moreover, Ellis' attorney stated that "SB
123 treatment is the 'carrot' to the 'stick' of possible imprisonment—after the stick has
been wielded, there is no point in offering the carrot." We agree.

Although it appears that the State released Ellis prior to the completion of his
entire sentence, presumably on good time credits, it appears that the only possible relief
on the SB 123 issue would be to extend Ellis' sentence. To now order that the district
court sentence Ellis to probation after he has successfully completed his prison sentence
would be tantamount to punishing him twice for the same offense. See Hudson v. United
States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed 2d 450 (1997); State v. Lee, 304 Kan. 416,
417, 372 P.3d 415 (2016). Currently, Ellis is on postrelease supervision until December
30, 2017. However, if the district court were to resentence him under SB 123, Ellis could
face a period of probation of up to 18 months. See K.S.A. 2016 Supp. 21-6824(c) ("The
term of treatment shall not exceed 18 months.").

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The mere fact that Ellis continues to be on postrelease supervision does not
necessarily mean that this appeal is not moot. State v. Ludes, No. 114,287, 2016 WL
6024640, at *3 (Kan. App. 2016) (unpublished opinion); see State v. Nicolaides, No.
114,239, 2016 WL 3856612, at *3 (Kan. App. 2016) (unpublished opinion) (probation
revocation appeal was moot where defendant had been released from imprisonment but
was still on postrelease supervision); State v. Her, No. 112,815, 2016 WL 3365755, at *4
(Kan. App. 2016) (unpublished opinion) (challenge to criminal history moot because
defendant had served his prison sentence and resentencing could not affect his postrelease
supervision); see also United States v. Williams, 475 F.3d 468, 479 (2d Cir. 2007). Thus,
although we will address the other three issues presented by Ellis on the merits, we
conclude that the issue of whether the district court erred in failing to sentence him to SB
123 drug treatment is now moot.

Reimbursement of BIDS Attorney Fees

Ellis next contends the district court violated K.S.A. 22-4513(b) and State v.
Robinson, 281 Kan. 538, 132 P.3d 934 (2006), when it ordered him to reimburse BIDS
for attorney fees without first considering his financial resources or considering the
burden those fees might impose on him. To determine this issue, we must interpret
K.S.A. 22-4513(b). Interpretation of a statute is a question of law over which we have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Indigent defendants—such as Ellis—who are represented by BIDS attorneys are
required to reimburse their attorney fees if they are found guilty. K.S.A. 22-4513.
However, K.S.A. 22-4513(b) requires that a district court "take account of the financial
resources of the defendant and the nature of the burden that payment of such sum will
impose." In other words, a district court must make this determination at the time the fee
assessment is ordered. Robinson, 281 Kan. at 546 ("[T]he sentencing court, at the time of
initial assessment, must consider the financial resources of the defendant and the nature
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of the burden that payment will impose explicitly, stating on the record how those factors
have been weighed in the court's decision."); see State v. Clay, 300 Kan. 401, 418, 329
P.3d 484 (2014).

A review of the record in this case reveals that the district court failed to elicit
information regarding Ellis' financial resources prior to requiring reimbursement of the
BIDS attorney fees. Moreover, we can find nothing in the record to show that the district
court considered the burden that payment of the $400 BIDS fee would place on Ellis.
Rather, it appears that the district court simply stated on the record: "I'm going to order
you to pay court costs, a fingerprinting fee; submit your DNA and pay the fee; pay the
BIDS' appointment fee. . . . I'm going to order you to pay half of the [BIDS] attorney fees
of $800." We find this statement to be insufficient to meet the requirements of K.S.A. 22-
4513. In fact, the State concedes this issue. Thus, we vacate this portion of Ellis' sentence
and remand the issue of BIDS attorney fee reimbursement to the district court.

Payment of BIDS Application Fee

Ellis also contends that the district court erred in ordering him to pay the BIDS
application fee. K.S.A. 22-4529 provides that a defendant "shall pay a [BIDS] application
fee in the amount of . . . $100," but that "[i]f 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." The Kansas Supreme Court has
interpreted K.S.A. 22-4529 to mean that "the district court should determine the propriety
of imposing the application fee at the time of the initial determination to appoint counsel"
and that such determination "does not require any subsequent findings by the district
court at sentencing." State v. Bonner, 290 Kan. 290, 304-05, 227 P.3d 1 (2010); see State
v. Hawkins, 285 Kan. 842, 853, 176 P.3d 174 (2008); State v. Travelbee, No. 110,348,
2014 WL 5312939, at *9 (Kan. App. 2014) (unpublished opinion).
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Here, there is nothing in the record to suggest that Ellis ever argued that
imposition of the BIDS application fee would constitute a manifest hardship or that he
ever called upon the district court to make such a finding. Because the district court
determined the propriety of imposing the application fee at the time it appointed counsel,
it was not required to make any subsequent findings at sentencing. Thus, we affirm the
district court on this issue.

Imposition of Senate Bill 123 Assessment Fee

Finally, Ellis contends that the district court failed to comply with K.S.A. 2016
Supp. 75-52,144(d) by failing to consider his financial resources before ordering him to
pay the $200 SB 123 assessment fee. Because this issue requires the interpretation of a
statute, it is a question of law over which we exercise unlimited review. Collins, 303 Kan.
at 473-74. In attempting to determine legislative intent, we examine the statutory
language by giving common words their ordinary meanings. State v. Barlow, 303 Kan.
804, 813, 368 P.3d 331 (2016). Only if a statute's language is ambiguous are we to resort
to the canons of statutory construction or look to legislative history to construe the
legislature's intent. 303 Kan. at 813.

K.S.A. 2016 Supp. 75-52,144(d), in relevant part, provides:

"The sentencing court shall determine the extent, if any, that [an offender] is able to pay
for [a SB 123] assessment and treatment. . . . If such financial obligations are not met or
cannot be met, the sentencing court shall be notified for the purpose of collection or
review and further action on the offender's sentence."

The statute plainly requires a sentencing court to first determine the extent, if any,
to which a defendant may be able to pay the SB 123 assessment fee before imposing this
financial obligation. Here, there is nothing in the record to show that the district court
made such a determination before ordering that Ellis pay the SB 123 assessment fee.
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Thus, we also vacate this portion of Ellis' sentence and remand to the district court the
issue of whether Ellis should be required to pay for his SB 123 drug assessment.

Affirmed in part, dismissed in part, vacated in part, and remanded for
resentencing.