1 NOT DESIGNATED FOR PUBLICATION
No. 123,305

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

V

.
J OHN B RENDAN W RIGHT J R

. , Appellant

.

MEMORANDUM OPINION

Appeal from Montgomery District Court; F. W ILLIAM C ULLINS , judge. Opinion filed April 29 , 20 22

. Reversed and remanded with directions

.

Jacob Nowak , of Kansas Appellate Defender Office, for appellant

.

Steven J. Obermeier , assistant solicitor general, and Derek Schmidt , attorney general, for appellee

.

Before M ALONE , P.J. , S C HROEDER and H URST , J J.

P ER C URIAM : John Bre ndan Wright Jr. appeal s from the dis trict court's imposition
of Board of Indigent s' De fense Services ( B I D S ) attorney fees at sentencing, arguing the district court failed to properly con sider his a bility t o p a y . We agree. The district court failed to make the necessary findings required under K.S.A. 22

- 4513(b) , as explained by our Supreme Court in State v. Robinson , 281 Kan. 538, 543

- 44 , 546, 132 P.3d 934 (2006). Accordingly, we reverse the imposition of BI DS at torney fees and remand to the
district court to make the nec essary findings.2 F ACTUAL AND P ROCEDURAL B ACKGROUND

In June 2020, W right ple d guilty t o multiple felon y crimes and t he dist rict court ,

a fter granting a downward departure sentence , imposed 27 mo nths' imprisonment with 12
months ' postrelea se s upervision. The district cour t then asses sed BIDS a ttorney fees after making li mited i n quir y into Wright's abil ity to pay. In relevant part, the district court asked: "Are you c apable of w orking, Mr. Wr ight? " Wright respon ded , "Yeah I have a list
that wo uld hire me right now." Th e district court then assess ed a $100 BIDS applica tion
fee an d $ 30 0 in BIDS attorn ey fees. But the district c ourt made no specific findings as to Wright's ability to pay or the burden s the BIDS fees would impose. W righ t filed a pr o se motio n for appella te review, which the district court interpreted as a timely noti c e of

a ppeal and appointed appellate cou nsel for Wright.

A

NAL YSIS

Standar d of Review

The imposition of attorney fees a s part of a criminal se ntence requires
i nterpr etation of K.S.A. 22

- 45 1 3, which presents a question of law subject to unlimited
review. Sta te v. Stoll , 312 Kan. 726, 736, 480 P.3d 158 (2021) ; Robinson , 281 Kan. at
539

. App e llat e courts r ev iew the amou nt of attorney fees imposed for an abuse of
discretion State v. Hernandez , 292 K an. 598, 609, 257 P.3d 767 (2011).

Dis cussion

W right acknowledges he did not object to the i mposition of attorney fees at
sentenci ng b ut correctly cites Robins on , w hi ch prov ides t he issue can be r aised for the first time on appeal. See 281 Kan. at 541 , 543

- 44

. The State unpersuasiv ely argue s we should not review this issu e because it was not raised and ruled on below. However, even3 if a preservation exception mi ght apply , o ur revi ew of an unpreserved issue is generally
d is c ret i onary

. State v. Gray , 311 Kan. 164, 170, 459 P.3d 165 (2 020)

.

In Robinson , our Supreme C ourt held : "[ T ] h e sentencing court , at the ti me of initial assessment, must consider the financial resources o f the d e fen dant and the nature of the burden that payment will impose explicitly , stating on the record how those factors have been weighted in the court's decision." 281 Kan. at 546. B ased on this holding , the
district court had a sta tutory duty to consid er Wrig ht 's financia l circumstan ces prior to imposing BIDS attorney fees. Accordingly, we see no reas on why Wright needed to object wh en the district court had an independent duty to exa mine this issue. See 281
Kan. at 543

- 44. And e ven assuming our review of this issue is di s cretionary, we believe it is pru dent to do so here beca use the relevant fa cts are not in dispute , the issue presen ts a

s t raightforward questi on of law, an d the matter can be conclusively disposed of without

exten ded discussion.

T he St ate arg u es Robinson was incorrectly decided. However, we a re duty

- b ound to follow Kansas Supreme Court prec edent unless there is some in dica tion our Sup reme Court is departin g from its previous position. State v. Rodriguez , 305 Kan. 11 39, 114 4,
390 P.3d 903 (2017 ). We obse rve nothing indicating our Supreme Court is depart ing from its position in Robinson

. See State v. Buck

- S ch rag , 312 Ka n . 540, 555

- 56, 477 P.3d 1013 (2020) ( co ntinuing to apply Robinson )

. A ccord ingly, we are unpersuad ed by the State's arg u ment on t his point.

K.S.A. 22

- 4513(b) p rovides, in rele vant part: "In determining the amou nt and method of paymen t of such [BIDS] su m , the court shall take acc ount of the fi nancial
resources of the defen dant and the nature of the b urd en tha t payment of such sum will impose." Under the strict direction of Robinson , the district court's order a ppears erroneous as it di d not make su fficie n t inquiry or explicit fin dings about Wri ght's ability to pay before im posing BIDS att orney fees. S ee 28 1 Ka n. at 543

- 44 , 546

. The only4 relevant discussion on the record was Wright's statement he knew of employers who
would h ire him. How ever, Wright was se n tenced to a term o f imprisonment in exce ss of two years; therefore, Wright's employment prospects fol lo win g his imprison ment were large ly speculative. T he mere fact W right might at some point be able to obtain employment was in suf ficient for the district court to make a proper determina tion abou t his ability to pay because there w as no evidence or in fo rma tion prese n ted abou t his
inc ome and expenses. Based o n the limited on
- record discussion, t he district court could

not predict wi t h any pa rticular a ccur acy what Wright's ability to pay would be fo llow ing his release from prison , a nd the district court ma d e no finding s on this point. T he district

court failed to make the proper inquiry and explicit findings before ord ering Wr ight to

p ay BIDS a ttorney fee s. See 28 1 Kan . at 543

- 44 , 546

.

T he State also argu es a ny error in t he d i stri ct court's failure to consider Wright's
financi al circum stances prior to imposing BIDS attorney fees was ha rmless

. T he Stat e
asserts that a mo re specific statute applie s and, thus, remed i es any failure by the district

court to mak e the req uisite findings

. S p ecif ically, the State points to K.S.A. 2020 S upp. 22

- 3 717( m)(5) , which requires the P risoner R eview B oard to consider Wright's abi lity to pay th e BIDS a tto rney fees as ordered by the d istrict court before they are enforce d as a condi tion of postrelease su p ervi sion upon his re lease from prison

.

However, the State's argument has been explicitly rejected by several prior panels
of t his court. See State v. Cummings , 45 Kan. App. 2d, 510, 512

- 1 3 , 247 P.3d 220 (2011) ; State v. De nni s , No. 101,313, 2010 WL 254 5 642, at *1 (Kan. App. 2010) (unpublished

o pinion) ; Stat e v. Frost , No. 98,433, 2009 WL 2371007, at * 12 (Kan. App. 2 009) (unpublished opi nion) (rejecting argument as applied to potential pa rolee) ; State v.
Geolas , No . 97,949, 2008 WL 307487, a t *1

- 2 (Kan. App. 2008) (unpublished opinion)

.

While o ne panel of t his court is free to disagree with another, w e see no reason to do so here

. S e e State v. Fleming , 308 Kan. 689 , 706, 423 P.3d 506 (2018). We also fin d it5 troubling t he State failed to acknowledge these decisions , much less explain why w e sho ul d adopt a d if ferent position. And without such argument an d exp lanation from the
Sta te, we find Cummings and the a u thori ties it relied on well

- reasoned and persuasive

. Although the P risoner R eview B oard ma y be required to make similar findings a fter the
fact , " [t] h e fa ct that the [ P risoner R eview B oard] may take up this issue later does not obviate the district court's duty under Robinson ." Frost , 2009 WL 2371007, at *12.

Moreover , b ecause the district cour t's error affected Wright's statutory right s, we

can o nly h old the error harmless if the State persu a des us "there is no reasonable probability the error affected the outcome in li g ht of the en tire re cord." State v. Salary , 309 K an. 479, 487, 437 P.3d 953 (2019)

. B ecause t he State has not a cknowled ge d the

co n side r abl e body of adverse authority, we find i t has no t met its burden to convinc e us
any error her e was harmless

. Accordingly, we r e ve rse the district court's imposition of
BI D S attorney fees and remand to the district court to make the explici t findings required by K.S.A. 22

- 4513(b) and Robinson before any such fe es may be imposed

. See 281 Kan. at 548 ( r e medy for sentencing court's fail u re to follow K.S.A. 22

- 4513 is re m and for

nece ssary findings to be m ade on record); Cummin gs , 45 Kan. App. 2d at 5 12 (same).

R eversed and remanded with directi ons

.