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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,403 STATE OF KANSAS, Appellee, v. MARY JEAN COPES, Appellant.

SYLLABUS BY THE COURT 1. Statutory interpretation is a question of law over which appellate courts have unlimited review.

2. K.S.A. 22-4513(a) requires a district court to tax Board of Indigents' Defense Services attorney fees against a criminal defendant in appointed counsel cases and provides the fees shall be enforced as judgments for payment of money in civil cases. In setting the amount of the fee, K.S.A. 22-4513(b) requires the district court to take into consideration the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A district court must consider these factors on the record at the time of assessing the fees.

3. A defendant may waive the right to have a district court make the findings required by K.S.A. 22-4513(b) and may do so in a written plea agreement. If there is a knowing, voluntary, and intelligent waiver, the district court may order payment of a Board of Indigents' Defense Services attorney fee without making the findings required by K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006).

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4. Application of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances.

5. For a waiver to be valid under the Due Process Clause, it must be an intentional relinquishment or abandonment of a known right or privilege.

6. The following factors are among those to be considered in determining whether the legislature's use of "shall" makes imposition of a fine mandatory or directory: (1) legislative context and history, (2) substantive effect on a party's rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision.

7. The word "shall" in K.S.A. 2009 Supp. 8-1567(g)(1) makes imposition of a $2,500 fine for a fourth or subsequent driving under the influence conviction mandatory, rather than directory, and in determining the amount of the fine a district court need not take into account the financial resources of the defendant and the nature of the burden its payment will impose, per K.S.A. 21-4607(3).

8. K.S.A. 21-4607(3) requires a district court to take into account the defendant's financial resources and the burden of the fine when considering the method of payment of a fine for a fourth or subsequent offense of driving under the influence of alcohol, i.e., whether the defendant must pay a monetary fine or provide community service under K.S.A. 2009 Supp. 8-1567(j).

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Review of the judgment of the Court of Appeals in an unpublished opinion filed December 19, 2008. Appeal from Montgomery district court; RUSSELL D. CANADY, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions. Opinion filed February 26, 2010.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the brief for appellant.

David R. Maslen, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: On review of a Court of Appeals' decision, we consider two issues of first impression for this court. Both arise from the district court's failure to consider a defendant's financial resources when imposing attorney fees and a fine.

First, can a defendant waive a K.S.A. 22-4513(b) requirement that a district court take into consideration "the financial resources of the defendant and the nature of the burden that payment of such sum will impose" in setting attorney fees in Board of Indigents' Defense Services (BIDS) cases and, if so, can that waiver occur when a plea agreement states that the defense attorney will recommend payment of costs and appointed attorney fees in an "amount to be determined"? The Court of Appeals held there could be a waiver through a plea agreement and that there was a waiver in this case. State v. Copes, No. 99,403, unpublished opinion, filed December 19, 2008. While we agree a defendant can waive his or her statutory rights under K.S.A. 22-4513(b), we hold there was not an intentional relinquishment of a known right in this case because the plea agreement merely states defense counsel will recommend that the defendant pay attorney fees and does not contain an explicit waiver of rights.

The second issue is whether a district court must consider a defendant's financial resources before imposing a fine for a conviction of driving under the influence of alcohol (DUI), fourth offense, pursuant to K.S.A. 2009 Supp. 8-1567(g)(1)? According to the defendant, the answer to this question is "yes" because K.S.A. 21-4607(3) states: "In determining the 3

amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose." The Court of Appeals rejected this argument and answered the question "no," concluding K.S.A. 21-4607(3) is a general statute and is not applicable in light of the more specific applicability of K.S.A. 2009 Supp. 8-1567(g)(1), which requires a $2,500 fine for a fourth or subsequent DUI conviction. State v. Copes, slip op. at 5-6. On review of that decision, we agree with the Court of Appeals' conclusion that the mandatory nature of the fine means financial resources need not be considered in setting the fine amount. Nevertheless, we disagree with the ultimate conclusion that K.S.A. 21-4607(3) has no application because the statute also applies to the determination of the method of payment, and K.S.A. 2009 Supp. 8-1567(j) provides an alternative method of payment by allowing the district court to order payment of a DUI fine through community service.

FACTUAL AND PROCEDURAL BACKGROUND On November 3, 2005, Copes entered a no contest plea to DUI, fourth offense, pursuant to K.S.A. 2005 Supp. 8-1567(g). The district court sentenced Copes to 12 months in jail, with a postrelease supervision term of 12 months. In addition, the court ordered Copes to pay $350 in BIDS attorney fees and assessed a mandatory fine of $2,500 pursuant to K.S.A. 2005 Supp. 81567(g). On direct appeal, Copes argued the district court erred by requiring her to pay the BIDS attorney fees and by imposing the $2,500 fine without first determining on the record whether she had the ability to pay. In State v. Copes, the Court of Appeals affirmed the district court.

Regarding the BIDS attorney fees, the Court of Appeals acknowledged that in State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), this court held, pursuant to K.S.A. 224513(b), the sentencing court "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." (Emphasis added.) Copes, slip op. at 3. The sentencing transcript indicates the district court did not consider any of the factors listed in K.S.A. 22-4513.

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The Court of Appeals concluded, however, that Copes agreed to pay BIDS attorney fees as part of the plea agreement. Although the plea agreement did not specify an exact amount of BIDS attorney fees, Copes agreed that at sentencing her attorney "will recommend" that she be required to pay the costs and appointed attorney fees in "the amount to be determined." The amount of $350 was written into the journal entry at sentencing. Following the rationale of State v. Perry, 39 Kan. App. 2d 700, 183 P.3d 12, rev. denied 286 Kan. 1184 (2008), the Court of Appeals held that Copes effectively waived her statutory rights under Robinson and K.S.A. 224513. Copes, slip op. at 3.

Regarding the district court's imposition of a $2,500 fine without first considering Copes' financial resources, the Court of Appeals held that under the circumstances--where the fine was mandatory and not discretionary--the district court was not required to make findings about Copes' ability to pay. The panel noted that K.S.A. 21-4607(3)--which requires a district court determining the amount and method of payment of a fine to "take into account the financial resources of the defendant and the nature of the burden that its payment will impose"--is a general statute. The more specific statute, K.S.A. 2009 Supp. 8-1567, controls over the general statute, and K.S.A. 2009 Supp. 8-1567(g)(1) mandates the imposition of a $2,500 fine for a fourth or subsequent DUI offense and does not contain a provision for waiver of the fine. The Court of Appeals held that in this situation the district court was not required to make the findings under Robinson and K.S.A. 21-4607(3). Copes, slip op. at 5-6.

This court granted the petition for review filed by Copes.

ANALYSIS Both issues in this appeal involve statutory interpretation, and statutory interpretation is a question of law over which appellate courts have unlimited review. See State v. Raschke, 289 Kan. 911, Syl.

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