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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,861 STATE OF KANSAS, Appellee, v. DARREN L. RASCHKE, Appellant.

SYLLABUS BY THE COURT

1.

A sentence is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it was based in part on criminal history not proved beyond a reasonable doubt to a jury.

2.

Generally an issue not raised in the district court cannot be the basis for an appeal, and K.S.A. 60-404 requires a contemporaneous objection to admission or exclusion of evidence by the district court in order to preserve an issue for appeal. The imposition of a criminal fine does not involve an evidentiary ruling; thus the specific contemporaneous objection rule of K.S.A. 60-404 does not apply. In addition, despite any general common-law rule that an issue must be raised for the first time in the district court to be properly preserved for appeal, the instant case is appropriate for application of an exception permitting pursuit of an appellate issue involving purely legal questions arising on proved or admitted facts that will be finally determinative of a case.

3.

Statutory interpretation and construction are subject to unlimited appellate review.

4.

The following factors are among those to be considered in determining whether the legislature's use of the word "shall" makes a particular provision mandatory or directory: (1) legislative history; (2) substantive effect on a party's rights versus merely form or 1

procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision, e.g., elections or notice on charges for driving under the influence.

5.

The minimum fines for forgery set forth in K.S.A. 21-3710(b)(2)-(4) are mandatory.

6.

When a sentencing judge imposes a mandatory minimum fine, he or she need not take into account the financial resources of the defendant and the nature of the burden that its payment will impose, per K.S.A. 21-4607(3).

7.

When a legal argument advanced by a criminal defendant may or may not benefit all such defendants, the rule of lenity does not compel its acceptance.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 19, 2008. Appeal from Rice district court; HANNELORE KITTS, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed October 30, 2009.

Carl Folsom III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, assistant solicitor general, argued the cause, and Scott E. McPherson, county attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This appeal by defendant Darren L. Raschke addresses whether a sentencing court must consider on the record the financial resources of a defendant and the nature of the burden that payment of a minimum fine would impose before setting the fine.

Raschke also challenges his 19-month prison sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it was based in part on criminal history not proved beyond a reasonable doubt to a jury. We reject this claim as controlled by our previous decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). It 2

requires no further discussion.

Raschke pleaded guilty to four counts of forgery in violation of K.S.A. 21-3710(a)(1). Subsections (b)(2), (b)(3), and (b)(4) of the statute set forth fine amounts for first, second, and third or subsequent forgery convictions: For a first conviction, "a person shall be fined the lesser of the amount of the forged instrument or $500"; for a second conviction, "a person shall be fined the lesser of the amount of the forged instrument or $1000"; for a third or subsequent conviction, "a person shall be . . . fined the lesser of the amount of the forged instrument or $2,500."

The sentencing judge imposed a total fine of $325 on Raschke's four counts; this amount was the sum of the values of the four forged instruments involved. The defense did not object.

On appeal to our Court of Appeals, the panel affirmed the fine. We granted Raschke's petition for review.

PRESERVATION OF ISSUE FOR APPEAL

As a preliminary matter, we consider whether Raschke's challenge to his fine is properly before this court on appeal.

Generally an issue not raised in the district court cannot be the basis for an appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). And we have recently emphasized the procedural bar raised by K.S.A. 60-404, which requires a contemporaneous objection to admission or exclusion of evidence by the district court in order to preserve an issue for appeal. See State v. King, 288 Kan. 333, 204 P.3d 585 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008). The absence of a defense objection to the fine at Raschke's sentencing requires brief discussion of these rules.

Raschke's challenge to his fine does not involve an evidentiary ruling. Thus the specific contemporaneous objection rule of K.S.A. 60-404 does not apply here. In addition, despite any 3

general common-law rule that an issue must be raised for the first time in the district court to be properly preserved for appeal, we believe this case is appropriate for application of one of our recognized exceptions

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