State v. Palacios-Chavez

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NOT DESIGNATED FOR PUBLICATION

No. 112,495

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSE L. PALACIOS-CHAVEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed November 20, 2015.
Vacated and remanded.

J. Patrick Lawless, Jr., of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., SCHROEDER, J., and HEBERT, S.J.

Per Curiam: In sentencing Defendant Jose Palacios-Chavez for two counts of
aggravated indecent liberties with a child, the Sedgwick County District Court reduced
the amount he would be required to pay for his appointed lawyer from $1,400 to $400
without inquiring about his financial resources and obligations or earning capacity and
without making a finding as to his ability to pay. Because the district court failed to do
so, we are obligated to remand for a hearing to properly establish the amount of attorney
fees Palacios-Chavez will have to pay.

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We needn't go into the factual or procedural history of this case, except to note that
Palacios-Chavez pleaded to those serious felony offenses and received a 10-year prison
sentence. Palacios-Chavez' sole issue on appeal concerns the order that he reimburse a
portion of the fees paid to his court-appointed lawyer.

As an indigent defendant, Palacios-Chavez was represented by a lawyer paid
through the Board of Indigent Defense Services (BIDS). If a criminal defendant
represented by a BIDS lawyer is convicted, the district court must enter an order
governing the defendant's obligation to reimburse those fees. The fee assessments are
regulated under K.S.A. 22-4513. The amount to be repaid is essentially treated as a civil
judgment imposed on a guilty defendant. The statute also requires that the district court
"shall take account of the financial resources of the defendant and the nature of the
burden that payment of such sum will impose." K.S.A. 22-4513(b).

The district court must make that determination at the time the assessment is
ordered, typically at sentencing. State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934
(2006) ("[T]he sentencing court, at the time of initial assessment, 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."). While the statute permits a defendant to later request modification of a
BIDS assessment because of "manifest hardship," that process cannot replace the district
court's studied determination of an appropriate amount in the first instance. 281 Kan. at
544.

In this case, the district court elicited no information about Palacios-Chavez'
financial circumstances and provided no explanation for the imposition of $400 as an
appropriate reimbursement amount. The district court's failure to do so amounts to
reversible error under Robinson. A reduction in the reimbursement amount—even a
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substantial one—is not a legal substitute for the required factual inquiry and findings as
to the appropriateness of the amount imposed.

We, therefore, vacate the order requiring Palacios-Chavez to reimburse BIDS
$400 for the fees paid his appointed lawyer and remand this case to the district court to
conduct a hearing as to the proper amount of any reimbursement.