State v. Logan ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,116
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERRID WAYNE LOGAN,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed February 19, 2021.
Affirmed.
Carol Longnecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Ellen Mitchell, county attorney, Lindell W. Crowe, legal intern, and Derek Schmidt, attorney
general, for appellee.
Before GARDNER, P.J., SCHROEDER, J. and WALKER, S.J.
PER CURIAM: Jerrid Wayne Logan appeals the district court's reimbursement
order for attorney fees and restitution. He contends the district court erred by failing to
determine a method of payment for his reimbursement of Board of Indigent Defense
Services (BIDS) attorney fees and for his restitution. He also argues that the district court
abused its discretion in setting the amount of those fees by failing to consider his
financial circumstances and the burden of the payment. For the reasons stated below, we
affirm.
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Factual and Procedural Background
In late 2015, Logan pleaded no contest to aggravated criminal sodomy,
kidnapping, attempted rape, robbery, and aggravated assault. The district court sentenced
him to 372 months in prison.
During his first appearance, Logan filed a financial affidavit for a court-appointed
attorney. Logan claimed he had no income, as he had lost his job. His girlfriend
contributed $733 a month to his household income. But his monthly expenses were $200
for car payments and $225 in rent. Logan also claimed his son as a dependent. Based on
that information, the district court appointed him an attorney and assessed him a BIDS
application fee.
At sentencing, the district court ordered Logan to pay $3,471.62:
• $978.62 in restitution,
• $193 in court costs,
• $200 for a DNA Database Fee,
• $2,000 in BIDS attorney fees, and
• $100 for a BIDS application fee.
Before ordering the BIDS attorney fees and application fee, the district court
determined that they would not cause undue burden or hardship. But on appeal, a panel of
this court held that the district court's undue burden or hardship finding was inadequate
under State v. Robinson, 281 Kan. 538, 546-47, 132 P.3d 934 (2006) because the district
court had failed to explicitly weigh the factors of Logan's financial resources and the
burden that payment fee would impose, as the plain language of K.S.A. 22-4513(b)
requires. State v. Logan, No. 116,837, 2018 WL 671909, at *10 (Kan. App. 2018)
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(unpublished opinion). The panel vacated the district court's assessment and remanded
for reconsideration of BIDS attorney fees.
On remand, the district court reassessed Logan's ability to pay, citing the Robinson
factors, and assessed $1,500 in BIDS attorney fees. This order brought Logan's new total
costs to $2,971.62. Neither Logan nor his trial counsel objected to this order.
Logan timely appeals.
Did the District Court Violate K.S.A. 22-4513(b) and K.S.A. 2019 Supp. 21-6604(i)?
Logan contends K.S.A. 22-4513(b) and K.S.A. 2019 Supp. 21-6604(i) require a
district court, when ordering BIDS attorney fee reimbursement, to determine a method of
payment. Logan argues that the district court must determine, at least, how a defendant
will pay and when the fees are due. Because the district court did not explicitly do so, he
asks this court to remand for reconsideration of his BIDS attorney fees.
Preservation
The State argues that Logan has not preserved this issue. Issues not raised before
the district court generally cannot be raised on appeal. See State v. Kelly, 298 Kan. 965,
971, 318 P.3d 987 (2014). This is, in large part, because appellate courts are not courts of
first resort—our role is not to make findings but merely to review findings made by the
district court. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009).
Our Supreme Court requires an appellant to explain why we should consider for
the first time on appeal an issue not raised earlier. Supreme Court Rule 6.02(a)(5) (2020
Kan. S. Ct. R. 34). It has warned that litigants who skirt Rule 6.02(a)(5) "risk a ruling that
an issue improperly briefed will be deemed waived or abandoned." State v. Williams, 298
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Kan. 1075, 1085, 319 P.3d 528 (2014). The court has also emphasized that we should
strictly enforce Rule 6.02(a)(5) and that failure to follow it could cause abandonment of
the claim. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015); Williams,
298 Kan. at 1085.
Logan concedes that he raises this issue for the first time on appeal, yet he
contends this should not preclude appellate review. He cites two cases in which our
appellate courts chose to review the district court's failure to consider the defendant's
financial resources or the burden of reimbursement, even with no objection in the district
court: Robinson, 281 Kan. at 541 (reaching the issue because it involved only a question
of law on proved or admitted facts that determined the case); State v. Knight, 44 Kan.
App. 2d 666, 687, 241 P.3d 120 (2010) ("[A] failure to object to the imposition of BIDS
fees has not disallowed parties from raising the issue for the first time on appeal."). But
those cases merely show that the appellate courts may choose to reach the merits of BIDS
fees issue—they do not compel us to do so.
We choose not to review this issue. The mere assertion of an exception to the issue
preservation rule does not obligate an appellate court to exercise its discretion and review
the issue. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). As our Supreme
Court recently reminded us in State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020):
"The decision to review an unpreserved claim under an exception is a prudential
one. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017); State v. Frye, 294 Kan.
364, 369, 277 P.3d 1091 (2012). Even if an exception would support a decision to review
a new claim, we have no obligation to do so. Parry, 305 Kan. at 1192."
We decline to use any potentially applicable exception to review Logan's new
statutory claim. Logan got the chance to present this argument to the district court not
once, but twice before, yet failed to do so. This failure deprived the trial judge of the
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opportunity to address the issue in the context of this case, and such an analysis would
have benefitted our review. We therefore decline to address this new argument on appeal.
Did the District Court Abuse Its Discretion by Ordering Logan to Pay $1,500 in BIDS
Attorney Fees?
Logan also argues that no substantial competent evidence supports the district
court's findings. Relatedly, he also claims the district court abused its discretion by failing
to explicitly weigh his financial circumstances and burden of the payment and by failing
to explain how it weighed those factors. We find no preservation problem as to this issue.
See Matter of Marriage of Bradley, 258 Kan. 39, 50, 899 P.2d 471 (1995) (parties need
not preserve sufficiency of evidence issues).
Standard of Review
This court performs an unlimited review of whether a district court followed
statutes governing the assessment of attorney fees. And we review the amount of attorney
fees imposed for an abuse of discretion. State v. Buck-Schrag, 312 Kan. 540, 555, 477
P.3d 1013, 1025-26 (Kan. 2020). A judicial action constitutes an abuse of discretion if
(1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
The party asserting the district court abused its discretion bears the burden of showing
such abuse of discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Analysis
When ordering reimbursement of BIDS attorney fees, the district court must
explicitly consider the defendant's financial resources and the nature of the burden that
payment will impose, stating on the record how those factors weighed in the court's
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decision. Robinson, 281 Kan. at 546-47. As this court did on Logan's first appeal, Kansas
appellate courts have often vacated reimbursement orders of BIDS attorney fees and
remanded for more findings because the district court failed to explicitly consider these
two factors under Robinson. Often these remands occur because the district court simply
made no findings at all before ordering attorney fees. See, e.g., State v. Phillips, 289 Kan.
28, 42-43, 210 P.3d 93 (2009); Knight, 44 Kan. App. 2d at 686-87. And, in Logan's case
under his first reimbursement order, the district court failed to explicitly determine
Logan's financial resources and weigh them against the burden of reimbursement.
But here, the district court considered Logan's financial resources and the nature of
the burden a reimbursement would impose:
"[THE COURT:] The only issue is Robinson, the Robinson factors, and the
Court's reassessing attorney fees if any. Mr. Logan, what's your highest level of
education?
"[LOGAN]: Just got my high school diploma.
"THE COURT: And you were employed in the past, it was Chili's; is that
correct?
"[LOGAN]: Yeah.
"THE COURT: And you were a cook there?
"[LOGAN]: I was a dish washer getting ready to get trained as a prep cook.
THE COURT: And how much were you making as a dish washer?
"[LOGAN]: Nine dollars an hour.
"THE COURT: How much would you make as a prep cook?
"[LOGAN]: Actually nine twenty-five.
"THE COURT: Okay. And do you have any children?
"[LOGAN]: Yes.
"THE COURT: How many children do you have?
"[LOGAN]: One.
"THE COURT: How many?
"[LOGAN]: One.
"THE COURT: And do you owe any back child support?
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"[LOGAN]: No.
"THE COURT: Do you have any other medical or other debt that I should be
aware of?
"[LOGAN]: No.
"THE COURT: Do you have any mental or physical disabilities that prevent you
from working full-time?
"[LOGAN]: No.
"THE COURT: Do you have any other assets or income that I should be aware
of?
"[LOGAN]: No.
"THE COURT: Are you employed currently while in custody?
"[LOGAN]: I was working in the kitchen.
"THE COURT: Okay. How much were you making there?
"[LOGAN]: A dollar five a day.
"THE COURT: And is there any other aspect of your financial circumstance I
should be aware of in calculating an appropriate attorney fee?
"[LOGAN]: Not that I know of.
....
"THE COURT: Okay. Based upon the defendant's sentence length, the income
capacity while incarcerated, as well as lack of financial obligations, family unit size, the
Court would find that a $1,500 attorney fee is appropriate. It's not an undue burden or a
hardship and that's based upon weighing all of the factors that we've just discussed,
including all costs already imposed."
The district court questioned Logan about his finances, education level, previous
work, family size, and the availability of financial resources in prison. Logan responded
that he had recently received his high school diploma, had worked in restaurants, had one
child, did not owe back child support, had no medical debt, and currently worked for a
$1.05 a day in the prison kitchen. The district court also gave Logan and his counsel a
chance to state any other aspect of his financial circumstances that would affect the
calculation of an appropriate attorney fee. But Logan had nothing to add. In determining
whether its reimbursement order would be appropriate, the district court explicitly
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considered Logan's length of sentence, his income in the prison, and his financial
obligations.
The district court thus made explicit findings sufficient to comply with the
requirements of K.S.A. 22-4513(b). State v. Perdue, No. 117,190, 2018 WL 297204, at
*1-5, (Kan. App. 2018) (unpublished opinion) (affirming BIDS attorney fees assessment
where district court made similar findings to this case). Based on this record, we conclude
that the district court did not abuse its discretion by ordering Logan to reimburse $1,500
in BIDS attorney fees.
Did the District Court Err by Not Providing a Payment Plan for Logan's Restitution?
Similar to his Issue I, Logan claims in Issue III that the district court erred by not
providing a payment plan for its order of restitution.
While Logan's appeal was pending, the Legislature changed the applicable law.
The newly amended K.S.A. 2020 Supp. 21-6604(b)(3) states:
"(3) If a restitution order entered prior to the effective date of this act does not
give the defendant a specified time to pay or set payment in specified installments, the
defendant may file a motion with the court prior to December 31, 2020, proposing
payment of restitution in specified installments. The court may recall the restitution order
from the agent assigned pursuant to K.S.A. 20-169, and amendments thereto, until the
court rules on such motion. If the court does not order payment in specified installments
or if the defendant does not file a motion prior to December 31, 2020, the restitution shall
be due immediately."
Logan's restitution order was entered before the effective date of this act and does not
give him a specified time to pay or set payment in specified installments. This statute thus
permits Logan to file a motion with the district court regarding the method of paying
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restitution. So on Logan's request, and because time was of the essence, we stayed appeal
of this issue, remanded it to the district court so Logan could timely file a motion with the
district court, maintained jurisdiction, and ordered counsel to give us status reports.
A status report filed January 12, 2021, states:
• the district court held a hearing on December 15, 2020, at which Logan and
his defense counsel appeared;
• Logan's defense counsel and the judge's administrative assistant both told
appellant's counsel that defendant waived his right to establish a payment
plan at that hearing; and
• appellant's counsel intended to move to withdraw Issue III from defendant's
appellant's brief.
But the next status report, filed February 3, 2021, was to a different effect:
"Upon further clarification, at the December 15, 2020, hearing, Mr. Logan waived his
right to have a payment plan established at that time because (1) he had been diagnosed
with Covid-19, which resulted in him being transferred to another facility and losing his
KDOC job; and (2) his appeal was still pending. Mr. Logan did not waive his future right
to have the district court establish a payment plan after his appeal is final.
....
"Issue III remains in Mr. Logan's brief."
Thus we do not find that Logan withdrew Issue III. Nor do we find that issue to be moot.
Nonetheless, we find that Logan's sole remedy is under the amended statute and
that he has waived his right to the statutory remedy. Because Logan's case was on appeal
when the Legislature changed K.S.A. 2020 Supp. 21-6604(b)(3), those changes apply to
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him. See State v. McAlister, 310 Kan. 86, 91, 444 P.3d 923 (2019) (a defendant has a
right to receive the benefit of any change in the law that occurs while the direct appeal is
pending). His remedy for the district court's alleged error in not providing a payment plan
for its order of restitution lies solely with the district court by making a timely motion
under K.S.A. 2020 Supp. 21-6604(b)(3).
We stayed any ruling on Logan's appeal of this issue at Logan's request. We stayed
our ruling to permit Logan to exercise his statutory right to file a motion with the court
before December 31, 2020, seeking payment of restitution in specified installments. We
informed Logan of the deadline and advised him why we were staying the restitution
issue on appeal. The district court swiftly complied, appointing counsel for Logan and
holding a timely hearing so Logan could make his motion. Logan and his counsel
appeared at that hearing.
Yet Logan chose not to make the necessary motion in the district court before the
statutory deadline ran. Despite having every opportunity to do so, Logan chose at the
December 15, 2020 hearing not to propose specified installments to the district court for
his payment of restitution. Instead, he voluntarily waived his right to have the district
court timely establish installment payments. See State v. Beaman, 295 Kan. 853, 858, 286
P.3d 876 (2012) ("The test for determining the waiver's validity is whether it was
voluntarily made by a defendant who knew and understood what he or she was doing.").
We thus lift the stay of Logan's third issue and discontinue the order for counsel to make
status reports.
To the extent that the status report suggests that Logan may believe he has some
future right to have the district court establish installment payments after his appeal is
final, we hold Logan fails to adequately support this claim. State v. Gonzalez, 307 Kan.
575, 592, 412 P.3d 968 (2018) ("Simply pressing a point without pertinent authority, or
without showing why it is sound despite a lack of supporting authority or in the face of
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contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue,
that issue is deemed waived or abandoned.").
Affirmed.
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