                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 117,654

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                           CURTIS R. AYERS,
                                              Appellant.


                                   SYLLABUS BY THE COURT

1.
        State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), requires a district court
judge to explicitly consider on the record a criminal defendant's financial resources
before assessing a Board of Indigents' Defense Services fee. Failure to do so compels
vacation of the fee assessment and remand for its reconsideration.


2.
        Imposition of consecutive on-grid sentences consecutive to a life sentence without
possibility of parole is not an abuse of discretion.


        Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed January 11, 2019.
Affirmed in part, vacated in part, and remanded with directions.


        Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, argued the cause, and was
on the briefs for appellant.


        Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Mark A. Dupree, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


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The opinion of the court was delivered by


       BEIER, J.: This case involves Board of Indigents' Defense Services (BIDS) fees
imposed on defendant Curtis R. Ayers and his sentences for capital murder and other
felonies.


       The district court judge assessed BIDS fees against Ayers after his conviction, but
the district court did not follow proper procedure in assessing the fees. Ayers now
challenges this procedural defect and further asserts that it was unreasonable for the
district judge to order most of his sentences to be served consecutively. As detailed
below, the district judge erred by failing to explicitly consider Ayers' financial resources
when he assessed the BIDS fee. See State v. Robinson, 281 Kan. 538, 132 P.3d 934
(2006). But the district judge did not abuse his discretion by ordering consecutive
sentences. We affirm Ayers' sentences, vacate the BIDS fee assessed, and remand this
case for reconsideration of that fee.

                        FACTUAL AND PROCEDURAL BACKGROUND

       The State charged Ayers with multiple felonies directly related to an incident in
which he killed Detective Brad Lancaster. Because Ayers was indigent, he was appointed
a public defender. Ayers pleaded guilty to all counts.


       At sentencing, the district court judge sentenced Ayers to life without the
possibility for parole for the capital murder conviction and various on-grid sentences for
his other crimes. Ayers received 247 months for a first count of aggravated robbery; 61
months for a second count of aggravated robbery; 61 months for each of two counts of
kidnapping; 34 months for each of two counts of aggravated burglary; 34 months for
aggravated battery; 19 months for aggravated assault of a law enforcement officer; and 9
months for criminal possession of a firearm. All of Ayers' sentences were ordered to run
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consecutive to each other except for the aggravated burglary sentences, which the district
judge ordered to run concurrent.


       Ayers' public defender argued that the district court should not require Ayers to
reimburse BIDS. The district judge then asked defense counsel, "Where are we on
attorney's fees?" Defense counsel responded that "the work done on this case was
limited" and Ayers pleaded guilty quickly so that the public defender was seeking only
"100 or 200 dollars" in reimbursement, "a nominal amount." The district judge then said,
"I take it that the attorney's fees incurred are substantially more than that," which defense
counsel admitted was true. There was no other discussion of BIDS fees until the end of
sentencing, when the district judge assessed $1,000.


                                              DISCUSSION

BIDS Fees Assessment

       Ayers asserts that the district judge did not follow the proper procedure in
assessing the BIDS fees against him because he failed to consider—on the record—
Ayers' ability to pay those fees. This challenge raises a question of law subject to
unlimited review. Robinson, 281 Kan. at 539.


               "To the extent we are called upon to interpret the statute, we first attempt to give
       effect to the intent of the legislature as expressed through the language of the statutory
       scheme it enacted. When a statute is plain and unambiguous, the court must give effect to
       express language, rather than determine what the law should or should not be. Stated
       another way, when a statute is plain and unambiguous, the appellate courts will not
       speculate as to the legislative intent behind it and will not read such a statute so as to add
       something not readily found in the statute. Stated yet another way, a clear and
       unambiguous statute must be given effect as written. If a statute is clear and


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       unambiguous, then there is no need to resort to statutory construction or employ any of
       the canons that support such construction.


               ....


               "The language of K.S.A. 2005 Supp. 22-4513(b) clearly requires a sentencing
       judge, 'in determining the amount and method of payment' of BIDS reimbursement, i.e.,
       at the time the reimbursement is ordered, to 'take account of the financial resources of the
       defendant and the nature of the burden that payment of such sum will impose.' The
       language is mandatory; the legislature stated unequivocally that this 'shall' occur, in the
       same way that it stated unequivocally that the BIDS fees 'shall' be taxed against the
       defendant. The language is in no way conditional. There is no indication that the
       defendant must first request that the sentencing court consider his or her financial
       circumstances or that the defendant must first object to the proposed BIDS fees to draw
       the sentencing court's attention to those circumstances.


               ....


               "[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 weighed in the
       court's decision. Without an adequate record on these points, meaningful appellate review
       of whether the court abused its discretion in setting the amount and method of payment of
       the fees would be impossible. [Citations omitted.]" 281 Kan. at 539-40, 543-44, 546-47.


       Robinson controls the outcome of this issue and requires a decision in Ayers'
favor. The district judge simply assessed attorney fees against Ayers without explicitly
saying on the record how this financial burden would affect Ayers. This fact is apparent
on the record before us and is admitted by the State in its brief.


       We expressly reject the State's argument that "there is no additional fact-finding
any court must do in order to resolve the issue of BIDS fees." A district court fact-finding
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regarding Ayers' financial resources still is required for "meaningful appellate review" to
occur. 281 Kan. at 546.


       We also expressly reject the State's argument that the BIDS fee assessed does not
qualify as "unworkable." Its comparison of BIDS fees to restitution awards misses the
point: Ayers is contesting the procedure by which the BIDS fee was imposed, not the
fee's workability, and restitution awards are the subject of a wholly distinct statute. See
K.S.A. 2017 Supp. 21-6604(b)(1) (courts required to order defendants to pay restitution
unless "unworkable"); K.S.A. 22-4513 (no mention of "workability"); State v. King, 288
Kan. 333, 356-58, 204 P.3d 585 (2009) (comparing BIDS statute and prior version of
restitution statute).


       "The [BIDS fee statute's] language is in no way conditional," and our caselaw is
unequivocal. Robinson, 281 Kan. at 543. The BIDS fee assessment must be vacated and
this case remanded for its reconsideration.


Consecutive Sentences

       Ayers also asserts that the district judge abused his discretion by ordering most of
his on-grid sentences to run consecutive. He argues that his life sentence without the
possibility of parole for capital murder means there is no possibility he will ever serve the
on-grid sentences. According to Ayers, this was unreasonable and thus an abuse of
discretion. See State v. Brune, 307 Kan. 370, 371-73, 409 P.3d 962 (2018) (abuse of
discretion demonstrated if decision [1] arbitrary, fanciful, or unreasonable; [2] based on
an error of law; [3] based on an error of fact).


       Ayers' argument presumes that the sole purpose or goal of sentencing is
incapacitation of the offender. We—along with the United States Supreme Court—have

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recognized that the purposes of sentencing go beyond pure incapacitation. See Graham v.
Florida, 560 U.S. 48, 71, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (retribution,
deterrence, incapacitation, rehabilitation legitimate goals of sentencing); State v. Gomez,
290 Kan. 858, Syl. ¶ 7, 235 P.3d 1203 (2010) (same). While Ayers' capital murder
sentence fulfills the purpose of incapacitation and, one hopes, deterrence, it does not
advance the goal of retribution for his other crimes. Retribution is the oldest justification
for sentencing and an important aspect—it is "a merited response to the actor's
deed . . . expressing moral reprobation of the actor for the wrong." 1 LaFave, Substantive
Criminal Law § 1.5(a)(6) (3d ed. 2018).


       Moreover, sentencing of defendants to terms of imprisonment they are unlikely to
serve is common. See, e.g., State v. Kleypas, 305 Kan. 224, 240, 382 P.3d 373 (2016)
(defendant sentenced to death, 69 months for attempted rape, 34 months for aggravated
burglary; rape, burglary sentences consecutive to death sentence); State v. Mayberry, 248
Kan. 369, 387-88, 807 P.2d 86 (1991) (defendant given two life sentences, 40-year
sentence; all consecutive), disapproved of on other grounds by State v. Gunby, 282 Kan.
39, 144 P.3d 647 (2006); United States v. Sarras, 575 F.3d 1191, 1220-21 (11th Cir.
2009) (defendant sentenced to 1,200 months; detailing several cases in which defendants
received sentences no person could be expected to serve); United States v. Betcher, 534
F.3d 820, 823, 826-28 (8th Cir. 2008) (defendant given consecutive prison sentences
totaling 750 years); United States v. Metzger, 411 Fed. Appx. 1, 3-5 (7th Cir. 2010)
(unpublished opinion) (defendant given consecutive prison sentences totaling 235 years);
People v. Chacon, 37 Cal. App. 4th 52, 67, 43 Cal. Rptr. 2d 434 (1995) (defendant's
determinate sentences ordered to run consecutive with sentence of life without possibility
of parole); Lewis v. State, 279 Ga. 464, 465, 614 S.E.2d 779 (2005) (same); Clippinger v.
State, 54 N.E.3d 986, 987-91 (Ind. 2016) (defendant given two consecutive sentences of
life without parole).


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      Under these authorities, we cannot say the district court's imposition of on-grid
sentences consecutive to Ayers' sentence of life imprisonment without the possibility of
parole was an abuse of discretion.

                                      CONCLUSION

      We affirm Ayers' consecutive sentences. We vacate the district court's assessment
of the $1,000 BIDS fee and remand this case for reconsideration of that fee.




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