NOT DESIGNATED FOR PUBLICATION
No. 122,155
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARCUS WAYNE BRANSTETTER,
Appellant.
MEMORANDUM OPINION
Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed November 6, 2020.
Affirmed in part and vacated in part.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Brett D. Sweeney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., GREEN and STANDRIDGE, JJ.
PER CURIAM: Marcus Wayne Branstetter pled guilty to one count of
methamphetamine possession. The district court sentenced Branstetter to 30 months in
prison. As a part of Branstetter's sentence, the district court required him to repay $547 in
Board of Indigents' Defense Services (BIDS) attorney fees. Branstetter now appeals his
sentence, arguing that the district court erred in imposing the BIDS attorney fees without
engaging in the analysis required by K.S.A. 22-4513 and further articulated in State v.
Robinson, 281 Kan. 538, 132 P.3d 934 (2006). Branstetter also argues that the district
court's findings regarding Branstetter's prior convictions—which enhanced his
sentence—violated his right to a jury trial pursuant to section 5 of the Kansas
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Constitution Bill of Rights and his Sixth and Fourteenth Amendment rights under the
United States Constitution as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Because the district court failed to engage in the
Robinson analysis before imposing the BIDS attorney fees, we vacate those fees and
remand to the district court for proper consideration under Robinson. Because the district
court's prior conviction findings did not violate Branstetter's right to a jury trial or his
Sixth and Fourteenth Amendment rights as articulated in Apprendi, we affirm the
remainder of Branstetter's sentence.
FACTS
The transcript of Branstetter's sentencing hearing reflects that the district court
ordered Branstetter to pay a $400 Kansas Bureau of Investigation laboratory fee and
court costs as a part of his sentence. According to the transcript, the court did not impose
any other fines or fees. But in the journal entry of sentencing, the district court ordered
Branstetter to pay $547 in BIDS attorney fees as a part of his sentence. The journal entry
also provided the following statement: "Defendant's financial resources and burden
imposed by BIDS application and attorney fees considered by the court pursuant to
K.S.A. 22-4513 and [Robinson]."
ANALYSIS
BIDS Attorney Fees
Branstetter argues the district court failed to inquire into his financial resources as
required by K.S.A. 22-4513(b) and Robinson before ordering him to repay $547 in BIDS
attorney fees as a part of his sentence. Branstetter's argument raises a question of law
over which this court has unlimited review. State v. Ayers, 309 Kan. 162, 163, 432 P.3d
663 (2019). Although Branstetter's counsel did not object to the imposition of attorney
fees at or after sentencing, this issue may be raised for the first time on appeal. State v.
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Garcia-Garcia, 309 Kan. 801, 822-23, 441 P.3d 52 (2019) (finding that K.S.A. 22-4513
places mandatory duties upon district court and that consideration of issue involving that
statute is necessary to serve ends of justice, allowing such issue to be considered for first
time on appeal).
Before assessing fees against a defendant to reimburse BIDS, a sentencing court
must consider the financial resources of the defendant and the nature of the burden that
payment of the fees will impose. K.S.A. 22-4513(b). The Kansas Supreme Court requires
that these considerations be made (1) on the record and (2) at the time of the initial
assessment. State v. Wade, 295 Kan. 916, 927, 287 P.3d 237 (2012); Robinson, 281 Kan.
at 546. The remedy for a sentencing court's failure to make explicit findings on the record
is to remand to the lower court for such findings. See 281 Kan. at 548.
In this case, the parties agree that the district court failed at sentencing to inquire
into Branstetter's financial resources or the burden repayment would have on him. Instead
of explicitly engaging in this analysis on the record as K.S.A. 22-4513(b) and Robinson
require, the district court ordered that Branstetter pay the BIDS attorney fees in a journal
entry issued after the sentencing hearing was over. For this reason, we vacate the fee
assessment and remand with directions for the court to consider Branstetter's financial
resources and the nature of the burden that payment of the fees will impose before
assessing any BIDS fees against Branstetter.
Right to a jury trial: Kansas Constitution
For the first time on appeal, Branstetter claims the district court's reliance on his
previous criminal convictions to determine his current sentence under the revised Kansas
Sentencing Guidelines Act (KSGA) violated section 5 of the Kansas Constitution Bill of
Rights. Before reaching the merits of his claim, this court must determine whether it is
properly preserved for appeal. Branstetter acknowledges that he failed to raise this claim
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at the district court level. Generally, issues not raised before the district court cannot be
raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). As the
Kansas Supreme Court has warned, an appellant must strictly adhere to Supreme Court
Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34). Rule 6.02(a)(5) requires an appellant to explain
why the issue is properly before the appellate court. If an appellant fails to follow
Supreme Court Rule 6.02(a)(5), the issue will be deemed waived or abandoned. See State
v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). However, the appellate court
may hear an issue not raised with the district court in three instances: (1) The newly
asserted theory involves only a question of law arising on proved or admitted facts and is
finally determinative of the case, (2) consideration of the theory is necessary to serve the
ends of justice or to prevent denial of fundamental rights, and (3) the district court's
judgment was right for the wrong reason. State v. Phillips, 299 Kan. 479, 493, 325 P.3d
1095 (2014).
Branstetter asserts that this court may review the issue on appeal pursuant to the
first and second exceptions. Section 5 of the Kansas Constitution Bill of Rights states:
"The right of trial by jury shall be inviolate." Section 5 is a basic and fundamental right.
As one panel of this court found in a case involving an identical issue, this court can hear
this particular constitutional challenge for the first time on appeal because it is necessary
to prevent the denial of a fundamental right. See State v. Albano, 58 Kan. App. 2d 117,
125, 464 P.3d 332 (2020). For the reasons stated in Albano, we similarly will consider
Branstetter's claim.
To put Branstetter's claim in context, we find it helpful to review some basic rules
of the KSGA. A defendant's presumptive sentence is based on two factors: the severity
of the current offense and the criminal history score of the defendant. See K.S.A. 2019
Supp. 21-6804(a) (containing the sentencing grid for nondrug crimes); K.S.A. 2019 Supp.
21-6805(a) (containing the sentencing grid for drug crimes). Severity levels range from
levels 1 (the most serious) to 10 (the least serious felony level). Criminal history scores
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range from I (no criminal history or one misdemeanor) to A (three or more person
felonies). See K.S.A. 2019 Supp. 21-6809; K.S.A. 2019 Supp. 21-6804(a).
Branstetter argues the criminal history factor of the sentencing guidelines violates
his right to a jury trial as set forth in section 5 of the Kansas Constitution Bill of Rights.
Specifically, he argues that using prior convictions to elevate the permissive punishment
for the current crime of conviction—without presenting evidence of those prior
convictions to a jury first—deprives him of his right to a jury trial on an issue of fact (the
existence of a prior conviction) that enhanced the penalty for his current crime of
conviction.
Branstetter concedes that his argument fails under the Fifth Amendment (due
process) and Sixth Amendment (right to jury trial) to the United States Constitution. See
Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." [Emphasis added.]); State v.
Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (district court's use of prior convictions
when calculating a criminal history score does not violate Apprendi); see also State v.
Boysaw, 309 Kan. 526, 543, 439 P.3d 909 (2019) (declining to reconsider Ivory).
Given his argument fails under the United States Constitution, Branstetter makes
the same argument relying on the right to a jury trial set forth in the Kansas Constitution.
In support of this argument, Branstetter claims the right to a jury trial under the Kansas
Constitution must be construed more broadly than that right in the federal Constitution
because, at the time the Kansas Constitution was enacted, defendants had a common-law
right to a jury trial on "penalty-enhancing prior conviction findings." This court
addressed the same argument in State v. Valentine, No. 119,164, 2019 WL 2306626, at
*6 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1070 (2019). In that case,
this court rejected Valentine's argument that the sentencing scheme set out in the KSGA
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was unconstitutional because of the status of the American common law at the time
Kansas became a state. We noted that the "Kansas Supreme Court has repeatedly rejected
the argument that the KSGA violates the Sixth and Fourteenth Amendments to the United
States Constitution. See [Ivory, 273 Kan. at 45-48]." 2019 WL 2306626, at *6. This court
went on to say that "it [was] incumbent on Valentine to provide authority showing our
Supreme Court interprets—or would interpret—§ 5 of the Kansas Constitution Bill of
Rights to require jury findings that the Sixth Amendment does not." 2019 WL 2306626,
at *6. The court found Valentine failed to do so. 2019 WL 2306626, at *6.
This court addressed the same issue more recently in Albano. Like Branstetter
does here, Albano argued that section 5 to the Kansas Constitution Bill of Rights
provided greater protection than the jury trial right under the Sixth Amendment to the
United States Constitution. This court began by noting that the Kansas Constitution is
"interpreted similarly to its federal counterpart even though the language may differ." 58
Kan. App. 2d at 128; see State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013)
(noting Kansas Supreme Court generally adopts United States Supreme Court's
interpretation of corresponding federal constitutional provisions). The Albano court also
recognized that as early as 1928, the Kansas Supreme Court held "'it is no concern of the
jury what the penalty for a crime may be, and it is just as well that the jurors' minds
should not be diverted from the question of defendant's innocence or guilt by facts
concerning defendant's prior convictions of other felonies.'" 58 Kan. App. 2d at 133
(quoting State v. Woodman, 127 Kan. 166, 172, 272 P. 132 [1928]). And just seven years
later, the Kansas Supreme Court stated that a defendant has no right under the state or
federal Constitutions to have a jury determine whether he had prior convictions. Levell v.
Simpson, 142 Kan. 892, 894, 52 P.2d 372 (1935). Ultimately, the court in Albano held
that section 5 of the Kansas Constitution Bill of Rights did not prohibit the KSGA's use
of judicial findings of criminal history. 58 Kan. App. 2d at 134.
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Branstetter makes the same arguments in this case which failed in Albano. We
adopt the well-reasoned opinion of the panel in Albano and find that section 5 of the
Kansas Constitution Bill of Rights does not require that the State prove to the jury the
existence of prior convictions. The district court did not violate Branstetter's
constitutional rights when it sentenced him without a jury first determining whether he
had a prior criminal history.
Right to a jury trial: United States Constitution
Branstetter also argues for the first time on appeal that the district court violated
his Sixth and Fourteenth Amendment rights as articulated in Apprendi when it relied on
his criminal history score when sentencing him. Specifically, he asserts that the State had
to prove these prior convictions to a jury beyond a reasonable doubt before sentencing
him, and because it did not do so, the district court violated the principles set forth in
Apprendi in sentencing him. But as noted above, Branstetter concedes the Kansas
Supreme Court already decided this issue against him in Ivory, and he raises it solely to
preserve the matter for federal review. Because this matter was conclusively resolved in
Ivory, we are not persuaded by Branstetter's argument. See 273 Kan. at 45-48; see also
Wade, 295 Kan. at 927 (declining to analyze identical issue as it had already been
conclusively decided in Ivory).
We vacate the BIDS attorney fee assessment and remand for proper consideration
of imposition of BIDS attorney fees pursuant to K.S.A. 22-4513(b) and Robinson. We
affirm the remainder of Branstetter's sentence.
Affirmed in part and vacated in part.
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