State v. Vaughan

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NOT DESIGNATED FOR PUBLICATION

No. 120,432

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES A. VAUGHAN JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; DANIEL W. VOKINS, magistrate judge. Opinion filed
November 1, 2019. Affirmed in part, reversed in part, and remanded with directions.

James A. Vaughan Jr., appellant pro se.

Stephanie B. Poyer, of Butler and Associates, P.A., of Topeka, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

PER CURIAM: "The plain and unambiguous language of K.S.A. [2018] Supp. 60-
2403 states that all restitution judgments not void as of July 1, 2015, continue to be
enforceable forever." State v. Dwyer, 56 Kan. App. 2d 848, Syl. ¶ 2, 439 P.3d 338 (2019).
The plain language also applies to "court costs, fees, [and] fines." K.S.A. 2018 Supp. 60-
2403(b).

James A. Vaughan Jr. was sentenced for his seventh driving under the influence
(DUI) in April 2010. He was ordered to pay various fines and fees as a result of his
conviction. Several years passed and a collection agency sought to garnish his prison
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inmate account. Among other things, Vaughan argued the judgment was void because of
the lengthy delay between the judgment and the first collection efforts.

The district court held that the judgment against Vaughn was not void. We agree.
But the district court failed to address whether all or a portion of Vaughn's inmate
account was entitled to an exemption from garnishment under state law. So we must
remand to the district court for further consideration.

FACTUAL AND PROCEDURAL HISTORY

On April 21, 2010, Vaughan was sentenced for his seventh driving under the
influence conviction. As part of his sentence, and under a plea agreement with the State,
Vaughan was ordered to pay court costs, fines, and fees.

In January 2018, while in prison on unrelated charges, Vaughan moved to dismiss
his fines, costs, and fee assessments. He argued that the judgment against him was
dormant and void due to the amount of time between his sentence and the State's
collection efforts. The district court denied Vaughan's motion in March 2018.

In April 2018, the collection firm Butler & Associates requested, and the district
court granted, a garnishment of nonwages to collect the court costs, fines, and fees from
Vaughan's inmate account. Vaughan responded by filing motions to transport to court for
a hearing, a motion to appoint counsel, and yet another motion to dismiss his court costs,
fines, and fee assessments.

The district court denied Vaughan's motions without hearing oral argument. The
district court affirmed the garnishment against Vaughan's inmate account. Vaughan asked
the district court to reconsider his motion to dismiss. In September 2018, before the
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district court ruled on Vaughan's motion to reconsider, he filed his notice of appeal. The
district court denied Vaughan's motion to reconsider in October 2018.

ANALYSIS

The judgment against Vaughan was not dormant or void.

Vaughan's first three arguments on appeal relate to the district court's finding that
the judgment for fines, fees, and costs for his DUI case was not dormant and void.
Whether the judgment against Vaughn was dormant requires interpretation of K.S.A.
2018 Supp. 60-2403(b). Interpretation of a statute is a question of law over which
appellate courts have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916,
918, 349 P.3d 469 (2015). We have already decided this exact issue against Vaughn.
State v. Vaughan, No. 119,610, 2019 WL 1575358, at *2 (Kan. App. 2019) (unpublished
opinion) (judgment against Vaughan would never become dormant or void because of the
application of amendment that was made to K.S.A. 60-2403[b] in 2015), petition for rev.
filed May 6, 2019. Although that case involved fines and fees on his sixth DUI
conviction, he raised the same issues he raises here regarding dormancy. We fully
incorporate this court's reasoning in Vaughn and find that his claim of error related to
dormancy fails for the reasons set forth in that case.

The 2015 amendment to K.S.A. 60-2403(b) did not violate the plea agreement between
Vaughan and the State.

Vaughan next argues that the 2015 amendment to K.S.A. 60-2403(b) (judgments
for court costs, fees, fines, or restitution which were not void as of July 2015 will never
become dormant or void) violates his plea agreement with the State. His argument seems
to rely on the general rule that the "penalty for a criminal offense is the penalty provided
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by statute at the time of the commission of the offense." State v. Sylva, 248 Kan. 118, Syl.
¶ 4, 804 P.2d 967 (1991).

But the actual collection of Vaughan's fines, costs, or restitution is a civil matter.
See K.S.A. 22-3801(a). There is no indication that the actual fines and court costs to
which the parties agreed in the plea agreement changed as a result of any legislative
action. The only change that occurred here is what the State needed to do to revive a
dormant judgment. There was no guarantee in the plea agreement that the State would
forgo its statutory ability to renew or revive the judgment to prevent it from going
dormant in the first place. The plea agreement dealt only with the assessment of fines,
fees, and costs—not their future collection. Because nothing in the plea agreement
guarantees the future dormancy of the judgment for fines, fees, and costs, the 2015
amendment did not violate the plea agreement.

Vaughan's attempt to challenge the sentence imposed in his underlying conviction in this
garnishment proceeding fails.

Vaughan's next argument relies on his assertion that the district court needed to
consider whether Vaughan was able to pay the fine or whether some other payment
option, such as community service, was more appropriate.

The DUI statute in effect at the time of Vaughan's conviction stated that instead of
payment of an imposed fine, "the court may order that the person perform community
service specified by the court." K.S.A. 2009 Supp. 8-1567(j). The sentencing court in this
case was required to consider, on the record, Vaughan's financial resources when
determining whether he should pay the monetary fine or complete community service.
See K.S.A. 21-4607(3) (now K.S.A. 2018 Supp. 21-6612[c]); State v. Copes, 290 Kan.
209, Syl. ¶ 8, 224 P.3d 571 (2010). The defendant can certainly waive his statutory rights
regarding consideration of the method of payment if such a waiver is set out on the record
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or in the plea agreement. There was no such waiver in Vaughn's plea agreement. See 290
Kan. at 217-18 (knowing, voluntary, and intelligent waiver, of statutory rights may be
accomplished through the provisions of a plea agreement). But Vaughn's claim fails for
several reasons.

First, Vaughn is, in essence, challenging the underlying debt or order of the court
to pay court costs. That judgment of conviction and sentence is final. Vaughn did not
appeal. Vaughn cannot attack the underlying judgment through a garnishment proceeding
unless he can establish that the judgment is void. See Riney v. Riney, 205 Kan. 671, Syl.
¶ 4, 473 P.2d 77 (1970) ("A judgment which has been entered in a case and which has
become final cannot be collaterally attacked in a subsequent proceeding unless it appears
that the judgment is void."). We have already found that the underlying judgment for
fines and costs is not void due to the passage of time. Vaughn, 2019 WL 1575358, at *2.
And Vaughn makes no claim on appeal that the judgment is void due to a claimed failure
to comply with K.S.A. 2009 Supp. 8-1567(j), K.S.A. 21-4607(3)—now K.S.A. 2018
Supp. 21-6612(c), and Copes, 290 Kan. 209, Syl. ¶ 8. So even if we assume that the court
erred in not considering his financial resources, "'[a] judgment is not void merely because
it is erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject
matter, or of the parties, or if it acted in a manner inconsistent with due process of law.'"
Ford v. Willits, 9 Kan. App. 2d 735, 744, 688 P.2d 1230 (1984), aff'd 237 Kan. 13, 697
P.2d 834 (1985).

Although Vaughn asserts he was denied due process of law because the court
failed to consider his financial resources and the method of payment, he does not claim
that the court denied him an opportunity to present information concerning his financial
circumstances. See State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000) (basic
elements of procedural due process are notice and an opportunity to be heard at a
meaningful time and in a meaningful manner). In fact, the court noted on the sentencing
journal entry that it had considered Vaughn's financial resources at least as they related to
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reimbursement of BIDS fees. Again, a judgment is not void merely because it is
erroneous. Ford, 9 Kan. App. 2d at 744.

Second, Vaughn did not raise noncompliance with K.S.A. 2009 Supp. 8-1567(j);
K.S.A. 21-4607(3); or Copes, 290 Kan. 209, Syl. ¶ 8, in his initial filings before the
district court. He did not raise it as an issue until his motion to reconsider after Judge
Vokins' order denying him relief was filed. A motion to reconsider is not a place to raise
new issues or obtain a second chance to present a stronger case. See Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) ("[A] motion for reconsideration
is appropriate where the court has misapprehended the facts, a party's position, or the
controlling law. It is not appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior briefing."); Sithon Maritime Co. v.
Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998) ("Appropriate circumstances for a
motion to reconsider are where the court has obviously misapprehended a party's position
on the facts or the law, or the court has mistakenly decided issues outside of those the
parties presented for determination. A party's failure to present its strongest case in the
first instance does not entitle it to a second chance in the form of a motion to
reconsider."). Accordingly, he abandoned his claim by not raising it his initial motions
before the district court.

Finally, based on the record here, we cannot determine whether the district court
considered the method of payment. Vaughan provides no citation to the record to support
his assertion that the district court did not consider whether community service would be
more appropriate and no transcript of the sentencing hearing on April 21, 2010, is
included in the record on appeal. The party asserting error bears the burden to designate
facts in the record to support his claim; without such a record, the claim of error fails.
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013).


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The district court ruled on all of Vaughn's motions except one, and that one must be
remanded for consideration.

Vaughan's final argument on appeal is that the district court erred because it did
not address each of his motions. Throughout the pendency of this case, Vaughan raised
several issues with the district court. On appeal he specifically mentions the following,
which are set out and, in some cases, grouped and abbreviated below.

1. Motions generally asserting that the judgment against him was void.

Vaughan contends that the district court ignored his reply memorandum regarding
whether the garnishment order was void. But just because the district court ruled against
Vaughan does not mean the court ignored the arguments he was making. These issues
were addressed by the district court and we have addressed them here as well.

2. Motion asserting Vaughan was indigent and that he should be able to file his
appeal in forma pauperis.

The district court considered this motion and found that Vaughan was indigent and
ordered that he could docket his appeal in forma pauperis.


3. Motion requesting transport to hearing and the ability to speak on his own
behalf.

The district court ruled on this issue by finding that oral argument by the parties
would not materially aid the court in reaching its decision; therefore, no hearing took
place. Without a hearing there was no need to transport Vaughan. His arguments were
considered through his written materials and denied. Again, just because the district court
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ruled against Vaughan does not mean the court ignored the arguments. In cancelling the
hearing that had been scheduled at Vaughn's request, the magistrate judge cited Supreme
Court Rule 133(c) (2018 Kan. S. Ct. R. 199-200), which requires a court to grant a timely
request for a hearing on any motion unless the court states in its ruling that "oral
argument would not aid the court materially." Whether the district court was correct in
denying Vaughn a hearing is addressed below.

4. Appointment of counsel

The district court denied Vaughan's motion for counsel, noting that the case was
civil because it involved the collection of court costs, fees, and fines. Then the district
court mistakenly appointed Vaughan appellate counsel. The court corrected the mistake
with an order to set aside its previous appointment of appellate counsel and at the same
time denied Vaughan's request for counsel. Vaughan had no right to appointed counsel
because this case was purely a civil collection matter. See In re Care & Treatment of
Lowry, 48 Kan. App. 2d 773, 788, 304 P.3d 696 (2012) (holding no constitutional right to
counsel in civil proceedings). The court considered this motion and properly ruled on it.

5. Vaughan's motion for reconsideration

Vaughan points out that he filed a motion for reconsideration which addressed
several issues he believed the district court failed to address. While Vaughn's notice of
appeal from the original decision was timely—because it was filed while a timely motion
for reconsideration was pending—he failed to file a notice of appeal from the denial of
his motion for reconsideration. Because Vaughn did not file a separate notice of appeal
identifying the district court's ruling on the motion for reconsideration, we lack
jurisdiction to review that ruling. See Ponds v. State, 56 Kan. App. 2d 743, 754, 437 P.3d
85 (2019). Accordingly, we will not address Vaughn's arguments related to issues raised
in the motion for reconsideration and the district court's denial of that motion.
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The remainder of Vaughan's brief raises sweeping issues that the district court
failed to follow proper procedure and law. But after reviewing the record, we find that the
district court acted correctly, except as outlined below. And when mistakes were made,
such as the appointment of counsel, the error was corrected.

6. Due process violation because of lack of notice

Vaughan argues his due process rights were violated because he was not provided
notice of the garnishment. The basic requirement of due process is the opportunity to be
heard in a meaningful manner and at a meaningful time. Wilkinson, 269 Kan. at 608. A
debtor who is being garnished is entitled to notice "[i]mmediately following the time the
order of garnishment is served on the garnishee, [and] the party seeking the garnishment
shall send a notice to the judgment debtor in any reasonable manner, notifying the
judgment debtor." K.S.A. 2018 Supp. 60-735(a).

Butler & Associates requested a garnishment on Vaughan's prison account on
April 23, 2018, and the garnishment was ordered a day later. The record does not show
that a notice was sent to Vaughan regarding the garnishment. So we must assume that the
statute was not followed. But due process violations are generally subject to a harmless
error analysis. In re Henderson, 306 Kan. 62, 77, 392 P.3d 56 (2017). And Vaughn fails
to articulate any tangible resulting harm from the lack of proper notice. He was aware of
the attempt to garnish his inmate account, even before the garnishment was ordered. For
example, he filed motions referencing Butler & Associates' attempt to garnish his account
as early as January 2018.

The required notice under the statute serves as a way to inform the debtor of his or
her rights with respect to the garnishment. For example, the judgment debtor receives
notice that he or she may "assert any claim of exemption allowed under the law." K.S.A.
2018 Supp. 60-735(a)(2). Vaughn was aware of his right to assert exemptions and
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challenge the garnishment, because he did so. But he was not provided with a hearing on
the matter as required by K.S.A. 2018 Supp. 60-735(b). That will be addressed next.

7. Assertion of exemption from garnishment

Vaughan does raise one issue that it appears the district court failed to address. In
his reply motion, Vaughan argues that some of the money garnished from his account
were the proceeds from a life insurance policy payout and were exempt from
garnishment.

K.S.A. 2018 Supp. 60-735 outlines the procedure for requesting a hearing on an
exemption claim:

"(b) If the judgment debtor requests a hearing to assert any claim of exemption,
the request shall be filed no later than 14 days following the date the notice is served on
the judgment debtor. If a hearing is requested, the hearing shall be held by the court no
sooner than seven days nor later than 14 days after the request is filed. . . .

"(c) If a hearing is held, the judgment debtor shall have the burden of proof to
show that some or all of the property subject to the garnishment is exempt, and the
court shall enter an order determining the exemption and such other order or orders as is
appropriate."

The district court did not "enter an order determining the exemption." K.S.A. 2018
Supp. 60-735(c).

Vaughan also relies on the exemption language in K.S.A. 60-2313, which states:

"(a) Except to the extent otherwise provided by law, every person residing in this
state shall have exempt from seizure and sale upon any attachment, execution or other
process issued from any court in this state:
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(1) Any pension, annuity, retirement, disability, death or other benefit exempt
from process pursuant to K.S.A. 12-111a, 12-5005, 13-1246a, 13-14,102, 13-14a10, 14-
10a10, 20-2618, 72-1768, 72-5526, 74-4923, 74-4978g, 74-49,105 or 74-49,106, and
amendments thereto." K.S.A. 60-2313(a)(1).

This court addressed the same issue in Vaughan's earlier appeal. There the court relied on
Leaf Funding, Inc. v. Simmons Medical Clinic, 54 Kan. App. 2d 387, Syl. ¶ 1, 398 P.3d
866 (2017), which held that the exemptions listed in K.S.A. 60-2313(a)(1) were limited
to benefits received under the statutes specified in that subsection.

"The statutes listed in subsection (a)(1) include (1) benefits available to Kansas police
and fire department employees, (2) benefits for Kansas public utilities or municipalities
employees, (3) benefits for judges and court reporters, (4) benefits under school
supplemental retirement programs or the State School Retirement System, and
(5) benefits under the Kansas Public Employees Retirement System. 54 Kan. App. 2d at
390." Vaughan, 2019 WL 1575358, at *5.

But funds from private insurance benefits are not exempt from garnishment. Leaf
Funding, Inc., 54 Kan. App. 2d 387, Syl. ¶ 2.

As in Vaughan's earlier appeal, there is still an unresolved issue of whether the
proceeds in Vaughan's prison account are exempt. See Vaughan, 2019 WL 1575358, at
*5. This requires factual findings by the district court. It is unclear whether Butler &
Associates is challenging Vaughn's assertion of an exemption. Although it is not required
to file a reply, it did not do so here. See K.S.A. 2018 Supp. 60-738(a) (judgment creditor
"may file a reply disputing any statement in the answer of the garnishee"). Accordingly,
as we did in Vaughn's prior case, we must remand to the district court for further
proceedings in strict compliance with K.S.A. 2018 Supp. 60-735(b) and (c) and K.S.A.
60-2313. See Vaughn, 2019 WL 1575358, at *5.

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Affirmed in part, reversed in part, and remanded for further proceedings on
Vaughan's exemption claim.