State v. Wren

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NOT DESIGNATED FOR PUBLICATION

Nos. 116,671
116,672

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT SAM WREN, JR.,
Appellant.

MEMORANDUM OPINION


Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed December
8, 2017. Reversed and remanded with directions.

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

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: Robert Sam Wren, Jr., pled no contest to one count of possession of
methamphetamine and one count of burglary. His original sentence was remanded for
resentencing. On remand, Wren argued he was eligible for mandatory drug treatment
under K.S.A. 2016 Supp. 21-6824. The district court found Wren was excluded from
treatment under K.S.A. 2016 Supp. 21-6824(h)(1)(A) because he was an Oklahoma
resident and Wren presumably wanted to return to Oklahoma because he had listed an
Oklahoma address as his residence. Wren appeals, arguing the district court erred in
finding he met the exclusion under K.S.A. 2016 Supp. 21-6824(h)(1)(A).

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On October 31, 2013, Wren pled no contest to one count of possession of
methamphetamine in case No. 13-CR-270 and no contest to one count of burglary of a
non-dwelling in case No. 13-CR-250. At sentencing, the district court found that Wren
had a criminal history score of B. Defense counsel noted Wren had been evaluated for
K.S.A. 2016 Supp. 21-6824, also known as Senate Bill 123. Counsel stated Wren
satisfied all the requirements except that he was a resident of Oklahoma, so he did not
qualify based on residency. Wren's presentence investigation (PSI) report indicated he
was not eligible for drug treatment due to his criminal history and his residency. Wren
requested a dispositional departure, but the court denied his request. The court sentenced
Wren to 34 months' imprisonment in case No. 13-CR-270 and 29 months' imprisonment
in case No. 13-CR-250, with the two sentences to run consecutively.

Wren appealed his sentence. State v. Wren, No. 111,702, 2015 WL 9283026 (Kan.
App. 2015) (unpublished opinion). The Wren court found the district court had
improperly calculated Wren's criminal history score. The court also held the district court
erred in failing to inquire into Wren's financial resources prior to assigning BIDS attorney
fees. It reversed and remanded for resentencing. 2015 WL 9283026, at *3-4.

The PSI report was completed on April 13, 2016. The PSI report indicated Wren's
criminal history score was C. It also indicated he was not eligible for drug treatment due
to criminal history and residency. In the box labeled "Officer's Assessment of Conditions
of Probation," in a section for travel restrictions, the report stated, "THIS CASE WILL
NEED TO BE INTERSTATE COMPACTED TO OKLAHOMA."

Wren filed separate departure motions in both his cases requesting probation. At a
hearing on July 14, 1016, Wren argued instead that he was eligible for mandatory drug
treatment under K.S.A. 2016 Supp. 21-6824. He told the district court that previously he
had been ineligible because of his criminal history and because he was an out-of-state
resident being monitored out-of-state. Because both of these factors had changed, Wren
was now eligible for treatment. The court ordered Wren's counsel to brief the issue. The
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court also stated it intended to file a notice to depart based on new offenses Wren had
allegedly committed while on bond, but the record does not indicate that any such notice
was ever filed.

Wren filed a motion for sentencing under K.S.A. 2012 Supp. 21-6604(n) and
K.S.A. 2016 Supp. 21-6824 in both his cases. Wren noted he was not a resident of
Kansas, but he was still eligible because he was not returning to another state subject to
an interstate compact. At sentencing, Wren argued that while he was not a resident of
Kansas, he had local connections and was willing to move his residency; therefore, he
was still eligible for treatment under K.S.A. 2016 Supp. 21-6824.

The district court questioned Wren about his residency. Wren stated he had moved
to Kansas two months before he went to jail, but the district court noted that on his most
recent PSI report he had listed an Oklahoma address. Wren said he had been living with
his girlfriend in Kansas, but he was not on the lease and had never received any mail at
that residence. Wren also admitted he had an Oklahoma driver's license.

The district court noted that Wren had 10 convictions for crimes regarding truth or
veracity. The court did not accept Wren's statements regarding his Kansas residency as
truthful. The court also stated that all the other information Wren had presented to the
court indicated he was still a resident of Oklahoma. It denied Wren's request for treatment
under K.S.A. 2016 Supp. 21-6824 because Wren was an Oklahoma resident and Wren
presumably wanted to return to Oklahoma because he had listed an Oklahoma address as
his residence. The court sentenced Wren to 29 months' imprisonment for his burglary
offense and 32 months' imprisonment for possession of methamphetamine, with the
sentences to run consecutively. Wren appeals.

On appeal, Wren argues that he met the qualifications for mandatory drug
treatment under K.S.A. 2016 Supp. 21-6824. He contends the district court erred in
finding him ineligible solely due to his Oklahoma residency. He argues the statute also
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required that he was returning to Oklahoma subject to an interstate compact. He asserts
he was not and he was still eligible for sentencing under K.S.A. 2016 Supp. 21-6824.

The State counters that Wren met the exclusion in K.S.A. 2016 Supp. 21-
6824(h)(1)(A). Therefore, the district court sentenced him correctly. Alternatively, the
State argues the case should be remanded for further fact-findings.

Resolving this issue requires interpretation of K.S.A. 2016 Supp. 21-6824,
commonly known as SB 123. Interpretation of a statute is a question of law over which
appellate courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d
1098 (2015). Wren also contends his current sentence is illegal. Whether a sentence is
illegal within the meaning of K.S.A. 22-3504 is also a question of law over which we
have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

K.S.A. 2016 Supp. 21-6824(a)(1) mandates drug treatment for certain qualifying
offenders, and district courts do not have the discretion to impose a different sentence.
See State v. Andelt, 289 Kan. 763, 771-72, 217 P.3d 976 (2009). In order to qualify for
drug treatment under K.S.A. 2016 Supp. 21-6824, an offender must be convicted of a
felony violation of 21-5706, unlawful possession of controlled substances. The offense
must be "classified in grid blocks 5-C, 5-D, 5-E, 5-F, 5-G, 5-H or 5-I of the sentencing
guidelines grid for drug crimes." The offender cannot have a prior felony drug conviction
described by K.S.A. 2016 Supp. 21-6824(a)(1).

Wren was convicted of a felony violation of K.S.A. 2012 Supp. 21-5706. After his
criminal history score was corrected on remand, he fell into grid block 5-C on the drug
sentencing grid. He also had no prior convictions of the offenses listed in K.S.A. 2016
Supp. 21-6824(a)(1). Therefore, he met the basic qualifications for mandatory drug
treatment.

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Despite the mandatory nature of sentencing under K.S.A. 2016 Supp. 21-6824, the
statute excludes certain offenders who otherwise meet the qualifications. K.S.A. 2016
Supp. 21-6824(h)(1). Among those excluded are offenders who "[a]re residents of
another state and are returning to such state pursuant to the interstate corrections compact
or the interstate compact for adult offender supervision." K.S.A. 2016 Supp. 21-
6824(h)(1)(A). Here, the parties are contesting whether Wren was excluded from
treatment based on K.S.A. 2016 Supp. 21-6824(h)(1)(A).

Wren does not directly challenge the district court's finding that he was a resident
of Oklahoma. Rather, he argues that he was not returning to Oklahoma subject to an
interstate compact. According to Wren, the district court misinterpreted the statute and
erred in denying mandatory drug treatment based solely on his residency.

K.S.A. 2016 Supp. 21-6824(h)(1)(A) excludes defendants who, in part, are
returning to another state subject to an interstate compact. While the district court found
that Wren presumably wished to return to Oklahoma, it did not find that Wren was
returning subject to an interstate compact. Wren, however, did not object to the court's
failure to make this finding.

When no objection is made to a district court's inadequate findings of fact or
conclusions of law, this court can presume the district court found all facts necessary to
support its judgment. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015). However,
where the record does not support such a presumption and the lack of specific findings
precludes meaningful review, we can consider a remand. State v. Neighbors, 299 Kan.
234, 240, 328 P.3d 1081 (2014). The record in this case does not support a presumption
that Wren met both qualifications under K.S.A. 2016 Supp. 21-6824(h)(1)(A).

Under the Interstate Compact for Adult Offender Supervision (ICAOS), the State
has discretion to determine where an offender will serve his or her sentence. ICAOS
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Bench Book for Judges and Court Personnel, 9, 37, 53 (2017). At the discretion of the
sending state, a receiving state must accept supervision of an offender if the offender:

"(a) has more than 90 calendar days or an indefinite period of supervision remaining at
the time the sending state transmits the transfer request; and
"(b) has a valid plan of supervision; and
"(c) is in substantial compliance with the terms of supervision in the sending state; and
"(d) is a resident of the receiving state . . . ." ICAOS Rule 3.101.

An offender is "an adult placed under, or made subject to, supervision as the result of the
commission of a criminal offense and released to the community under the jurisdiction of
courts, paroling authorities, corrections, or other criminal justice agencies . . . ." ICAOS
Rule 1.101; see K.S.A. 22-4110, Article II. A sending state may also request the transfer
of an offender who does not meet the requirements for a mandatory transfer "where
acceptance in the receiving state would support successful completion of supervision,
rehabilitation of the offender, promote public safety, and protect the rights of victims."
ICAOS Rule 3.101-2. Acceptance of such a transfer lies within the discretion of the
receiving state. The receiving state has up to 45 days to investigate and respond to a
sending state's request for any transfer. ICAOS Rule 3.104.

According to the ICAOS, an offender cannot be subject to a transfer under the
compact until after sentencing. Furthermore, the receiving state may take an additional 45
days to respond to a transfer request. Therefore, Wren could not have been returning to
Oklahoma subject to the ICAOS at the time of sentencing because he had not been
sentenced yet.

Similarly, under the Interstate Corrections Compact (ICC), a sending state may,
within its discretion, send an inmate to an institution in another state party to the
compact. K.S.A. 76-3002; Lynn v. Simmons, 32 Kan. App. 2d 974, 980-81, 95 P.3d 99
(2003). An inmate is "a male or female offender who is committed, under sentence to or
confined in a penal or correctional institution." K.S.A. 76-3002, Article II(d). Again,
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Wren could not have been subject to transfer under the ICC because he was not already
an inmate sentenced to a penal or correctional institution.

The legislative history of K.S.A. 2016 Supp. 21-6824 suggests, however, that
subsection (h)(1)(A) was intended to exclude all defendants who would not remain in
Kansas to serve their sentence. The most fundamental rule of statutory construction is
that the intent of the legislature governs if that intent can be ascertained. State v. Jordan,
303 Kan. 1017, 1019, 370 P.3d 417 (2016). The Legislature amended 21-6824 (formerly
K.S.A. 21-4729) in 2006 to include subsection (h)(1)(A). L. 2006, ch. 211, § 7.
Testimony suggests the purpose of this amendment was to prevent offenders who would
not be available to participate in certified drug treatment programs in Kansas from
incurring unnecessary costs by taking presentencing drug evaluations. The statute was
intended to apply to "defendants who are residents of another state and will be returning
to that state." Minutes of the House Judiciary Committee, March 14, 2006, Attachment 6.

Thus, there is a conflict between the language of K.S.A. 2016 Supp. 21-
6824(h)(1)(A) and the procedures of the ICAOS and the ICC. The statutory language
requires a finding that the defendant is returning to another state subject to an interstate
compact prior to sentencing. Yet, the defendant cannot be subject to the compacts until
after sentencing. We could interpret K.S.A. 2016 Supp. 21-6824(h)(1)(A) as applying
only to offenders who are already subject to transfer due to another criminal case. This,
however, would be inconsistent with the intent of the statute, which aimed to exclude any
defendant who would be unavailable to participate in Kansas drug treatment programs.

We must construe statutes to avoid unreasonable or absurd results and presume the
Legislature does not intend to enact meaningless legislation. State v. Frierson, 298 Kan.
1005, 1013, 319 P.3d 515 (2014). In factual circumstances like Wren's, the best way to
reconcile the statute with the interstate compact is to require district courts to find that a
defendant is eligible for mandatory transfer under the ICAOS or the State intends to
transfer the defendant under the ICC. District courts may also want to require the State to
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complete the necessary paperwork for transfer either prior to sentencing or within a
reasonable amount of time afterwards. In this case, however, the district court made no
such findings, and the record does not support any such findings.

The State argues that the PSI report's indication that the case needs to be
"interstate compacted to Oklahoma" is enough to show Wren met the exclusion under
K.S.A. 2016 Supp. 21-6824(h)(1)(A). However, the record of the sentencing hearing
suggests the district court did not rely on the PSI report in reaching its conclusion.
Additionally, the State has not presented any argument that a probation officer's
assessment that a case needs to be transferred to another state under an interstate compact
is sufficient evidence that it will in fact be transferred. This matter must be remanded for
further findings of fact. To aid the district court with its findings, it might well obtain
testimony from officials with the Kansas Department of Corrections who are familiar
with compact administration in cases such as Wren's, especially as to whether a
defendant likely would be transferred out of state without a request or over his or her
objection.

Wren also argues the district court erred in imposing BIDS fees. At the sentencing
hearing, the following exchange took place:

"[THE COURT:] Mr. Wren, once you are released from prison on these two
cases—are you capable of working and earning a living wage and paying back the State
of Kansas for making payment on the restitution, the court costs, and your attorney's
fees?
"[WREN]: Yes, Your Honor.
"THE COURT: All right. If you cannot do that, you can petition the Court to
have the court costs, fines, and fees waived. If you show to the Court that your financial
circumstances are dire and—the Court will consider that."

The court then ordered Wren to pay courts costs of $195 and attorney fees of $1,100 in
each case and one fingerprinting fee of $45.
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Wren argues the district court failed to consider the burden any payments would
impose as required by K.S.A. 22-4513(b). The State responds that the court complied
with the statute and Wren should have brought any relevant financial information to the
court's attention. Again, this issue requires interpretation of a statute, and our review is
unlimited. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Wren did not object to the imposition of BIDS fees at the district court level. This
does not preclude review of this issue. In State v. Robinson, 281 Kan. 538, 541, 132 P.3d
934 (2006), the Kansas Supreme Court addressed the imposition of BIDS fees for the
first time on appeal, explaining it involved only a question of law. The State asks us to
disregard Robinson and decline to hear this issue on appeal, but it has provided no
authority to support its argument.

K.S.A. 22-4513(a) requires a defendant represented by appointed counsel and
subsequently convicted to reimburse the State for the expenditures made by BIDS.
K.S.A. 22-4513(b) states that, "In determining the amount and method of payment of
such sum, the court shall take account of the financial resources of the defendant and the
nature of the burden that payment of such sum will impose." The Kansas Supreme Court
has interpreted K.S.A. 22-4513(b) to mean that a court 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. Robinson, 281 Kan. at 546.

On remand, the district court did ask Wren about his ability to pay any court costs
or fees. However, a brief inquiry into a defendant's financial status is generally not
enough. For example, merely asking a defendant when he could start paying and how
much he could pay does not satisfy the Robinson requirements. State v. Knight, 44 Kan.
App. 2d 666, 687, 241 P.3d 120 (2010).

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This case is very similar to State v. Reighard, No. 111,758, 2015 WL 4094283
(Kan. App.) (unpublished opinion), rev. denied 303 Kan. 1081 (2015). In that case, the
district court verified that the defendant was able to work and that he would be willing
and able to pay BIDS fees if he was working. On review, the Reighard court found the
district court's inquiry was insufficient to satisfy the Robinson requirements. 2015 WL
4094283, at *3.

As with Reighard, the district court here only noted that Wren would be able to
work and pay any costs and fees. The court did not inquire into the nature of the burden
that payment of the assessed fees would impose. Additionally, the court did not state on
the record how it weighed those considerations in making its decision.

The State argues that the court accounted for any possible burden to Wren by
telling him about the petition to waive fees, and Wren bore the burden to present any
relevant financial information to the court. The State does not explain how informing a
defendant of his statutory ability to petition for a waiver of fees reflects an explicit
consideration of the burden a fee payment might present based on the defendant's
financial circumstances. Additionally, the waiver procedure is not "a substitute for the
sentencing court's initial consideration of a defendant's finances." Robinson, 281 Kan. at
544. As for whether Wren erred in not bringing other information to the court's attention,
the Kansas Supreme Court has noted the language of K.S.A. 22-4513 places mandatory
requirements on a district court when imposing BIDS fees, and "[t]here is no indication
that the defendant must first request that the sentencing court consider his or her financial
circumstances." 281 Kan. at 543.

Therefore, we reverse and remand this case to the district court for consideration
of the above issues.

Reversed and remand with directions.