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NOT DESIGNATED FOR PUBLICATION

No. 123,305

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

V.

JOHN BRENDAN WRIGHT JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed April 29, 

2022. 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 MALONE, P.J., SCHROEDER and HURST, JJ.

PER CURIAM: John Brendan Wright Jr. appeals from the district court's imposition

of Board of Indigents' Defense Services (BIDS) attorney fees at sentencing, arguing the 

district court failed to properly consider his ability to pay. 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 BIDS attorney fees and remand to the 

district court to make the necessary findings.
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FACTUAL AND PROCEDURAL BACKGROUND

In June 2020, Wright pled guilty to multiple felony crimes and the district court,

after granting a downward departure sentence, imposed 27 months' imprisonment with 12 

months' postrelease supervision. The district court then assessed BIDS attorney fees after 

making limited inquiry into Wright's ability to pay. In relevant part, the district court 

asked: "Are you capable of working, Mr. Wright?" Wright responded, "Yeah I have a list

that would hire me right now." The district court then assessed a $100 BIDS application 

fee and $300 in BIDS attorney fees. But the district court made no specific findings as to 

Wright's ability to pay or the burdens the BIDS fees would impose. Wright filed a pro se 

motion for appellate review, which the district court interpreted as a timely notice of

appeal and appointed appellate counsel for Wright.

ANALYSIS

Standard of Review

The imposition of attorney fees as part of a criminal sentence requires 

interpretation of K.S.A. 22-4513, which presents a question of law subject to unlimited 

review. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021); Robinson, 281 Kan. at

539. Appellate courts review the amount of attorney fees imposed for an abuse of 

discretion State v. Hernandez, 292 Kan. 598, 609, 257 P.3d 767 (2011).

Discussion

Wright acknowledges he did not object to the imposition of attorney fees at 

sentencing but correctly cites Robinson, which provides the issue can be raised for the 

first time on appeal. See 281 Kan. at 541, 543-44. The State unpersuasively argues we 

should not review this issue because it was not raised and ruled on below. However, even 
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if a preservation exception might apply, our review of an unpreserved issue is generally 

discretionary. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020).

In Robinson, our Supreme Court held: "[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 weighted in the court's decision." 281 Kan. at 546. Based on this holding, the

district court had a statutory duty to consider Wright's financial circumstances prior to 

imposing BIDS attorney fees. Accordingly, we see no reason why Wright needed to 

object when the district court had an independent duty to examine this issue. See 281 

Kan. at 543-44. And even assuming our review of this issue is discretionary, we believe it 

is prudent to do so here because the relevant facts are not in dispute, the issue presents a 

straightforward question of law, and the matter can be conclusively disposed of without 

extended discussion.

The State argues Robinson was incorrectly decided. However, we are duty-bound

to follow Kansas Supreme Court precedent unless there is some indication our Supreme 

Court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 

390 P.3d 903 (2017). We observe nothing indicating our Supreme Court is departing 

from its position in Robinson. See State v. Buck-Schrag, 312 Kan. 540, 555-56, 477 P.3d 

1013 (2020) (continuing to apply Robinson). Accordingly, we are unpersuaded by the

State's argument on this point.

K.S.A. 22-4513(b) provides, in relevant part: "In determining the amount and 

method of payment of such [BIDS] 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." Under the strict direction of Robinson, the district court's order appears

erroneous as it did not make sufficient inquiry or explicit findings about Wright's ability

to pay before imposing BIDS attorney fees. See 281 Kan. at 543-44, 546. The only 
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relevant discussion on the record was Wright's statement he knew of employers who 

would hire him. However, Wright was sentenced to a term of imprisonment in excess of 

two years; therefore, Wright's employment prospects following his imprisonment were

largely speculative. The mere fact Wright might at some point be able to obtain 

employment was insufficient for the district court to make a proper determination about 

his ability to pay because there was no evidence or information presented about his

income and expenses. Based on the limited on-record discussion, the district court could

not predict with any particular accuracy what Wright's ability to pay would be following 

his release from prison, and the district court made no findings on this point. The district 

court failed to make the proper inquiry and explicit findings before ordering Wright to 

pay BIDS attorney fees. See 281 Kan. at 543-44, 546.

The State also argues any error in the district court's failure to consider Wright's 

financial circumstances prior to imposing BIDS attorney fees was harmless. The State 

asserts that a more specific statute applies and, thus, remedies any failure by the district 

court to make the requisite findings. Specifically, the State points to K.S.A. 2020 Supp. 

22-3717(m)(5), which requires the Prisoner Review Board to consider Wright's ability to 

pay the BIDS attorney fees as ordered by the district court before they are enforced as a 

condition of postrelease supervision upon his release from prison.

However, the State's argument has been explicitly rejected by several prior panels 

of this court. See State v. Cummings, 45 Kan. App. 2d, 510, 512-13, 247 P.3d 220 (2011); 

State v. Dennis, No. 101,313, 2010 WL 2545642, at *1 (Kan. App. 2010) (unpublished 

opinion); State v. Frost, No. 98,433, 2009 WL 2371007, at *12 (Kan. App. 2009) 

(unpublished opinion) (rejecting argument as applied to potential parolee); State v. 

Geolas, No. 97,949, 2008 WL 307487, at *1-2 (Kan. App. 2008) (unpublished opinion).

While one panel of this court is free to disagree with another, we see no reason to 

do so here. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018). We also find it 
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troubling the State failed to acknowledge these decisions, much less explain why we 

should adopt a different position. And without such argument and explanation from the 

State, we find Cummings and the authorities it relied on well-reasoned and persuasive. 

Although the Prisoner Review Board may be required to make similar findings after the

fact, "[t]he fact that the [Prisoner Review Board] may take up this issue later does not 

obviate the district court's duty under Robinson." Frost, 2009 WL 2371007, at *12.

Moreover, because the district court's error affected Wright's statutory rights, we 

can only hold the error harmless if the State persuades us "there is no reasonable 

probability the error affected the outcome in light of the entire record." State v. Salary, 

309 Kan. 479, 487, 437 P.3d 953 (2019). Because the State has not acknowledged the 

considerable body of adverse authority, we find it has not met its burden to convince us 

any error here was harmless. Accordingly, we reverse the district court's imposition of 

BIDS attorney fees and remand to the district court to make the explicit findings required

by K.S.A. 22-4513(b) and Robinson before any such fees may be imposed. See 281 Kan. 

at 548 (remedy for sentencing court's failure to follow K.S.A. 22-4513 is remand for 

necessary findings to be made on record); Cummings, 45 Kan. App. 2d at 512 (same).

Reversed and remanded with directions.