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IN THE SUPREME COURT OF THE STATE OF KANSAS Nos. 98,430 98,431 STATE OF KANSAS, Appellee, v. TABITHA L. BONNER, Appellant.

SYLLABUS BY THE COURT 1. Interpretation of a sentencing statute is a question of law, and the appellate court's standard of review is unlimited.

2. When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. For this reason, when the language of a statute is plain and unambiguous, courts need not resort to statutory construction. If a statute is subject to more than one interpretation, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested.

3. As a general rule, courts strictly construe a criminal statute in favor of the accused, which simply means that the court reads words with their ordinary meaning. The court decides any reasonable doubt about a word's meaning in favor of the accused. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible so as to give effect to the legislative design and intent. 1

4. Under K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 21-4603d(g), a court was required to consider placement at Labette Correctional Conservation Camp, another established conservation camp, or a community intermediate sanction center in the following five circumstances: (1) prior to imposing a dispositional departure for a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guidelines grid; (2) prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the sentencing guidelines grid for drug crimes; (3) prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 4-E or 4-F of the sentencing guidelines grid for drug crimes and whose offense does not meet the requirements of K.S.A. 21-4729, and amendments thereto; (4) prior to revocation of a nonprison sanction of a defendant whose offense is classified in grid blocks 4-E or 4-F of the sentencing guidelines grid for drug crimes and whose offense does not meet the requirements of K.S.A. 21-4729, and amendments thereto, or (5) prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guidelines grid or grid blocks 5-H, 5-I, or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-E, 3-F, 3-G, 3-H, or 3-I of the sentencing guidelines grid for drug crimes. The word "or" must be read as a disjunctive term rather than conjunctive. In other words, a district court was required to consider one of the alternative sentencing sanctions if any of the five circumstances applies.

5. Under K.S.A. 2005 Supp. 21-4603d(f) and K.S.A. 2006 Supp. 21-4603d(f), if a defendant committed an offense while on felony bond, the defendant could be sentenced for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime did not constitute a departure.

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A failure to comply with K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 214603d(g) is not reversible error if none of the alternative nonprison sanctions listed in the statute is available.

7. A defendant incurs the obligation to pay the Board of Indigents' Defense Services (BIDS) application fee when the application is completed. Consequently, an order in a journal entry of sentencing to pay an unpaid application fee--even if not pronounced from the bench--is not improper.

8. An order to pay a BIDS application fee is merely an imposition of costs and is neither punitive nor part of a sentence. Because the defendant's ability to pay the fee is considered at the time the defendant submits an application for appointed counsel, the district court is not required to make further findings at sentencing to validate the assessment of the application fee.

9. A defendant's constitutional rights as recognized in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), are not violated if the defendant's criminal history is not proven to a jury beyond a reasonable doubt.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 1, 2008. Appeal from Montgomery district court; RUSSELL D. CANADY, judge. Judgment of the Court of Appeals affirming the district court on those issues subject to our grant of review is affirmed. Judgment of the district court on those issues is affirmed. Opinion filed March 5, 2010.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.

David Maslen, assistant county attorney, argued the cause, and Paul J. Morrison, former attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

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LUCKERT, J.: This appeal requires us to consider whether an error in failing to consider the alternative nonprison sanctions provided for in K.S.A. 2005 Supp. 21-4603d(g) and K.S.A. 2006 Supp. 21-4603d(g)--placement at Labette Correctional Conservation Camp (Labette), in another conservation camp, or in a community intermediate sanction center (CISC)--is a reversible error when none of those alternatives is available. We conclude the error is harmless and does not require us to vacate the sentence. This question arises because we hold the district court erred in concluding that the alternative nonprison sanctions did not have to be considered under 21-4603d(g) if the crime was committed while the defendant was on felony bond, even if another circumstance under the statute applies. In addition, following well-established precedent, we hold the district court did not err by including a Board of Indigents' Defense Services (BIDS) application fee in the journal entry of judgment even though it did not consider Bonner's ability to pay the fee during the sentencing hearing, and the district court did not err in considering Bonner's criminal history without submitting it to a jury for determination.

FACTS This is a consolidated appeal arising from sentences imposed in two cases. In both cases, Tabitha L. Bonner committed the crimes while on felony bond.

In one case (No. 05CR553I), Bonner pleaded no contest to two counts of forgery in violation of K.S.A. 2005 Supp. 21-3710, severity level 8 felonies. Because she had a criminal history score of E, her convictions fell in block 8-E on the nondrug sentencing guideline grid, which is a presumptive probation grid block. See K.S.A. 2005 Supp. 21-4704.

At sentencing, Bonner requested she be given probation under the supervision of community corrections. The district court denied this request and invoked the special sentencing rule in K.S.A. 2005 Supp. 21-4603d(f), which grants a district court the discretion to sentence a defendant to prison if the crime of conviction is a felony that was committed while the defendant was on felony bond. The district court imposed the standard sentence in the grid block and did not make any findings regarding alternative nonprison sanctions under K.S.A. 2005 Supp. 214603d(g). The district court also awarded court costs, restitution, and BIDS attorney fees in an

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amount to be determined by the BIDS fee schedule. In the journal entry, the district court awarded $460 for BIDS attorney fees and the $100 BIDS administrative fee. In the second case (No. 08CR395I), Bonner pleaded no contest to attempted possession of cocaine in violation of K.S.A. 2006 Supp. 21-3301 and K.S.A. 2006 Supp. 65-4160, a severity level 4 felony. Even though this conviction was subsequent to the forgery convictions, Bonner's criminal history score remained an E. This placed Bonner in a presumptive probation grid block on the sentencing guidelines drug grid. See K.S.A. 2006 Supp. 21-4705.

The sentencing hearing in this case, which was held approximately 1 week after the sentencing hearing in the forgery case, went much the same as the prior hearing. Bonner again requested probation, and the district court again invoked 21-4603d(f), imposed the standard prison sentence in the 4-E grid block, and failed to consider the alternative nonprison sanctions provided for in 21-4603d(g). (K.S.A. 2005 Supp. 21-4603d applied to the forgery crimes, which were committed in 2005. The cocaine offense was committed in 2006, and K.S.A. 2006 Supp. 21-4603d applied. Although 21-4603d was amended in 2005, neither 21-4603d[f] or [g] were amended. L. 2005, ch. 150,

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