State v. Valadez

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NOT DESIGNATED FOR PUBLICATION

No. 115,991

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEREMY KEITH VALADEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed July 14, 2017.
Reversed and remanded.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Michael Blackburn, legal intern, Jodi Litfin, deputy district attorney, Michael F. Kagay, district
attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Jeremy Keith Valadez pled no contest to fleeing and eluding law
enforcement and driving under the influence (DUI). Valadez appeals, arguing the district
court erred when it assessed Board of Indigents' Defense Services (BIDS) attorney fees
without considering his financial resources or the nature of the burden payment of the
fees would impose. Valadez also contends the district court erred when it failed to
consider his financial resources and the nature of the burden payment of his fine would
impose before determining a method of payment for the fine. Finding that the district
court should have taken into consideration Valadez' financial recourses and the burden
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imposed in paying the DUI fine, this matter is reversed and remanded for further
proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement, Valadez pled no contest to DUI, third offense, and
fleeing or eluding law enforcement. As part of the plea agreement, Valadez agreed not to
appeal any conviction resulting from the plea.

The district court sentenced Valadez to consecutive sentences of 13 months'
imprisonment for fleeing and eluding and 90 days in the Shawnee County Jail for his
DUI conviction. The district judge assessed court costs, BIDS attorney fees, and a fine,
stating:

"What I'm also going to do is assess $171 in court costs, a $27 [sic] surcharge. I
believe I saw the $120—or excuse me, the $200 DNA assessment on a prior case so I will
not assess that. I will assess an attorney fee of $100, which is a reduction in that. I'm also
going to assess a $100 BIDS' fee.
. . . .
"I'm going to assess a $1,750. I'm going to call that a DUI community
corrections' fee of $1,750. I will not assess any other fine. I'm not aware of any other
restitution or any other costs that need to be addressed."

Valadez appeals.

VALADEZ DID NOT WAIVE THE RIGHT TO APPEAL HIS SENTENCE

The State argues Valadez waived his right to appeal the imposition of attorney
fees in his plea agreement. The plea agreement states: "The Defendant shall not make
any motion to withdraw the plea or appeal any conviction that results from the plea." The
State argues this language indicates that "Valadez effectively agreed to not appeal any
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sentence from his conviction as well." This argument ignores the plain language of the
plea agreement. The agreement refers only to Valadez' conviction, which he has not
appealed. Valadez did not waive the right to appeal his sentence in the plea agreement.

THE DISTRICT COURT ERRED WHEN IT FAILED TO CONSIDER THE NATURE OF THE
BURDEN IMPOSED BY REQUIRING VALADEZ PAY BIDS FEES

Valadez argues the district court erred when it imposed BIDS attorney fees
without expressly considering his financial resources and the burden imposed by ordering
reimbursement of BIDS fees. Resolution of this issue requires interpretation and
application of K.S.A. 22-4513, which is a question of law subject to unlimited review.
State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006).

Sentencing courts, at the time of the initial assessment of BIDS attorney fees under
K.S.A. 22-4513, "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." 281 Kan. at 546. The remedy for a sentencing
court's failure to make explicit findings is to remand to the lower court for such findings.
See 281 Kan. at 548.

The State argues the district court expressly considered Valadez' ability to pay
because it reduced the amount of attorney fees by more than half. However, the district
court did not inquire regarding Valadez' ability to pay BIDS fees. In addition, Robinson
requires the district court state how it weighed Valadez' financial resources and the nature
of the burden payment of BIDS fees would impose. Here, the district court did not make
findings consistent with Robinson. Instead, the district judge simply stated: "I will assess
an attorney fee of $100, which is a reduction in that." Since the district court did not state
on the record how it weighed Valadez' financial resources and the nature of the burden
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that payment of his BIDS attorney fees will impose, this matter must be reversed and
remanded for further proceedings.

THE DISTRICT COURT ERRED WHEN IT FAILED TO CONSIDER VALADEZ' FINANCIAL
RESOURCES BEFORE DETERMINING A METHOD OF PAYMENT OF HIS DUI FINE

K.S.A. 2016 Supp. 8-1567(f) states:

"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."

In State v. Copes, 290 Kan. 209, 223, 224 P.3d 571 (2010), the Kansas Supreme
Court held the district court must consider the financial resources of a defendant and the
nature of the burden the fine will impose before determining the method of payment of a
DUI fine. In State v. Grebe, 46 Kan. App. 2d 741, 743-45, 264 P.3d 511 (2011), a panel
of this court held the district court did not err despite failing to consider whether Grebe
could pay his fine through community service because he was incarcerated for 53
months. As such, completing community service within 1 year was impossible.

Citing State v. Bailey, No. 110,936, 2014 WL 5849265, at *3 (Kan. App. 2014)
(unpublished opinion), Valadez argues the relevant inquiry is "whether circumstances
exist on the day of sentencing that will definitely prevent the defendant from completing
community service within a year." Valadez contends between his 77 days of jail credit
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and 20% good-time credit, he could finish his entire sentence with approximately 16 days
left to pay a portion of the fine through community service.

The State argues applying Bailey using "hypothetical good time credit . . . sets a
dangerous precedent for future decisions and greatly undermines the highly rational
standard created in Grebe." It argues: "If a defendant can rely on hypothetical good time
credit to assert the idea that their sentence will be finished in less than a year perhaps they
can also rely on a hypothetical pardon from the governor or a hypothetical motion to
modify sentence." At minimum, the State argues the consideration should be limited to
"reasonable factors," including guaranteed jail-time credit, which makes the term of
incarceration less than 1 year.

The State's argument is essentially an apples versus oranges comparison. A pardon
is obviously an extremely remote possibility and even success on a motion to modify is
incapable of being measured. While not necessarily definite—it must be earned—
Valadez' good-time credit is calculable. See K.S.A. 2016 Supp. 21-6821(b)(2). In
contrast, whether a defendant will receive a pardon or modification of sentence is
incalculable.

Further, other panels have not rigidly applied Grebe. In State v. Kent, No. 105,118
2012 WL 308536 (Kan. App. 2012) (unpublished opinion), a panel of this court
remanded for the district court to make findings concerning the manner and method of
paying a DUI fine pursuant to Copes despite the defendant receiving a 12-month jail
sentence. The panel noted: "Because Kent will be serving his sentence in jail rather than
prison, he may qualify for a work release program which would allow him to perform
community service in lieu of a fine. Thus, the rationale of Grebe does not apply here."
(Emphasis added.) Kent, 2012 WL 308536, at *1. Although the State attempted to
distinguish Kent, its brief acknowledged Kent "potentially" qualified for work release.

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This present case is unlike Grebe. In that case, it was an impossibility for the
sentence to be completed within 1 year. This case is more consistent with the Kent case
which indicates that it does not need to be shown with certainty that community service
can be completed within 1 year, only that it may be completed within 1 year. Valadez
received 77 days of jail-time credit and he was also eligible for 20% good-time credit.
K.S.A. 2016 Supp. 21-6821(b)(2)(B). Valdez was only sentenced to 13 months'
imprisonment and 90 days' jail time. Thus, after jail-time credit and assuming Valadez
earns all of the good-time credit he is eligible for, Valadez, like Kent, was potentially
able to pay some of his fine through community service. As a result, the district court
erred when it failed to consider his financial resources before determining the method of
payment of the BIDS fees fine.

Reversed and remanded.