concurring and dissenting: I concur with .that portion of the majority opinion holding that the rule in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), does not apply to confessions. I write separately to respectfully suggest that the majority’s interpretation and application of K.S.A. 2004 Supp. 22-4513(b) is erroneous and unconstitutional.
K.S.A. 2004 Supp. 22-4513(b) states:
“In determining the amount and method of payment of such sum [for counsel and other defense services], tire court shall take account of the financial resources of tire defendant and the nature of the burden that payment of such sum will impose.”
Robinson argues that the district court assessed him $795 without any consideration of his financial resources or the burden that payment would impose upon him. Indeed, any common reading of the statutory provision would support the notion that at the time *785of determining the amount and method of payment of such costs against a defendant, the court shall consider the burden on the defendant. I believe that this requirement is rooted in the defendant’s right to counsel and was intended by our legislature to be applied precisely as urged by Robinson.
The majority notes that the subject provision has “been closely examined under the judicial lens many times,” but I respectfully suggest that the majority’s interpretation then disregards the thrust of these judicial examinations. Considerable federal litigation has been spawned by challenges to state recoupment statutes of this nature. The chief gravamen of such challenges is that to order recoupment without regard to financial ability to pay would have a chilling effect upon the assertion of a defendant’s constitutional right to counsel. See, e.g., Fuller v. Oregon, 417 U.S. 40, 53-54, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974); see also Walter, Kansas Recoupment: A Recurring Constitutional Concern, 19 W.L.J. 38 (1979). The Tenth Circuit has summarized the essential constitutional requirements promulgated by these federal cases as follows:
“Second, a court should not order a convicted person to pay these expenses unless he is able to pay them'ox will be able to pay them in the future considering his financial resources and the nature of the burden that payment will impose. If a person is unlikely to be able to pay, no requirement to pay is to be imposed.
“Third, a convicted person on whom an obligation to repay has been imposed ought at any time be able to petition the sentencing court for remission of the payment of costs or any unpaid portion thereof. The court should have the power to issue remittitur if payment will impose manifest hardship on the defendant or his immediate family.” (Emphasis added.) Olson v. James, 603 F.2d 150, 155 (10th Cir. 1979).
Robinson argues that “the inescapable conclusion” from this federal case law is that “a trial court has both statutory and Constitutional obligations to consider a defendant’s ability to pay when ordering payment of attorneys fees.” I agree. In fact, it is quite clear to me that the Kansas Legislature intended to address both of these requirements in drafting the 1981 amendment to 22-4513. Compare L. 1976, ch. 169, sec. 3, with L. 1981, ch. 157, sec. 2. Note that the 1981 revisions impose the two requirements summarized in Olson: (1) financial ability must be considered in the *786initial imposition of fees, and (2) there must be a mechanism for reconsideration at any later date. The Kansas statute clearly addresses and embodies both of these requirements. The majority’s interpretation, with due respect, renders meaningless the firstirequirement, that financial burden be considered when the fees are initially assessed. This interpretation is not only inconsistent with the statutoiy intention, it violates the United States Constitution.
I am acutely aware of the desire of the majority to avoid yet another mandatory sentencing obligation on our district courts. As a practical matter, the interpretation of the majority would serve the interests of judicial administration. Unfortunately, the interpretation is not what was intended by our legislature and is constitutionally flawed. The language of K.S.A. 2004 Supp. 22-4513(b) must be interpreted as imposing a requirement upon the court to consider the financial circumstances of the defendant as a condition of any assessment of fees under the statute.
I would reverse the district court’s assessment of fees and remand for further proceedings consistent with this dissent.