NOT DESIGNATED FOR PUBLICATION. No. 115,993 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, IVAN HUIZAR ALVAREZ, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 115,993 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. IVAN HUIZAR ALVAREZ, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed April 14, Sam Schirer, of Kansas Appellate Defender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee. Before SCHROEDER, P.J., GREEN, J., and BURGESS, S.J. Per Curiam: Ivan Huizar Alvarez entered into a plea agreement on one count of second-degree murder intentional. At sentencing, the trial court found Alvarez' criminal history score to be a D and sentenced him to the standard 253 months in prison. The trial court also ordered Alvarez to pay costs for certain prosecution expenses in the amount of $ Alvarez appeals both his sentence and the assessment of certain prosecution costs. We affirm. 1

2 FACTUAL AND PROCEDURAL BACKGROUND Ivan Alvarez was charged with first-degree murder in violation of K.S.A Supp (a)(1) in the March 24-25, 2015, death of Scott Richard Johnson. His 5- day trial was scheduled to begin on Monday, January 25, Criminal History Score and Sentencing On January 22, 2016, Alvarez entered into a written plea agreement, agreeing to plead no contest to one count of second-degree murder, a level 1 person felony. In this agreement, Alvarez acknowledged, among other things, that there would be no trial; the district court was not bound by any recommendation or agreement by either party as part of the agreement; and the possible penalty for the crime to which he was pleading was between 147 and 653 months in prison, which depended in part on his criminal history score. At the plea hearing, also on January 22, 2016, Alvarez stated he read and understood his plea agreement and understood that the sentence range for the crime to which he was pleading no contest was 147 to 653 months in prison. He understood by entering a plea he was relinquishing certain rights, such as the right to trial by jury. Alvarez acknowledged that his sentence would be determined based on the sentencing guidelines, statutes, and other factors and considerations, regardless of whether his conviction was the result of a plea or trial. Alvarez stated he understood his criminal history score would affect his prison sentence within the range of 144 to 653 months. The defense indicated they believed Alvarez' score was a C. Alvarez acknowledged his actual term of any sentence would be based on the application of his prior criminal history to the sentencing guidelines. Alvarez verbally entered a plea of no contest which the court accepted. The district court found Alvarez guilty of second-degree murder, a severity level 1 person felony, entered a judgment of conviction, and ordered that a presentence 2

3 investigation (PSI) report be completed. The district judge then stated, "The Court will have the jury called off for Monday [January 25, 2016]." The PSI determined that Alvarez' criminal history score was a D based on 1 previous adult person felony, 1 previous person misdemeanor, and 10 previous nonperson misdemeanors; there were also 5 unscored convictions. Alvarez was sentenced on April 8, Alvarez made no objection to his criminal history score of D. The district court asked Alvarez if he had reviewed his PSI and the criminal history worksheet, including Alvarez' 17 prior convictions. Alvarez stated he had reviewed the criminal history worksheet and that it was accurate. He admitted that his criminal history score was a D. The defense requested the district court to follow the plea agreement and impose the standard sentence and stated that "[Alvarez is] willing and prepared to take his sentence today." The State likewise requested the standard sentence. The district court found that Alvarez' criminal history score was a D, and that based on his score and crime of conviction, the range of possible sentences was 240, 253, 267. The district court acknowledged both parties requested the standard-range sentence of 253 months. The district court followed the recommendation and sentenced Alvarez to serve 253 months' imprisonment. State's Costs Assessed to Alvarez In March 2016, prior to sentencing, the State filed a notice of restitution seeking reimbursement from Alvarez for witness expenses and the development of photographs for use as trial exhibits. The State's request totaled $ The itemized receipts demonstrated $ for witness expenses and $ for the trial exhibit photos. The defense did not object to the imposition of reimbursing the State for the witness expenses. The defense did not overtly object to the photograph development expenses but did request the district court to "seriously consider" whether the imposition of "office supply 3

4 expenses" was appropriate. The district court found that "the statute provides... reimbursement for trial preparation fees such as those provided are appropriate" and granted the State's request in the total amount of $ Alvarez filed this timely appeal. DID THE DISTRICT COURT HAVE THE AUTHORITY TO TREAT THE EXPENSES OF THE STATE'S TRIAL EXHIBITS AS COURT COSTS AND ASSESS THOSE COSTS TO ALVAREZ? Alvarez claims that he objected to the imposition of costs imposed for the State's preparation of trial exhibits, i.e., photograph development costing $ The record on appeal does not reflect Alvarez specifically objected, but he did request the district court to "seriously consider" whether the assignment of that expense was appropriate. Alvarez contends the statement made at the hearing preserved this issue for appeal. While Alvarez' objection was not artfully crafted, this court will consider an objection was made and the issue was preserved for appeal. Alvarez argues the district court lacked the authority to assess costs to him for certain of the State's trial preparation expenses. As this issue is framed as a statutory interpretation, it presents a question of law and this court's review is unlimited. State v. Collins, 303 Kan. 472, , 362 P.3d 1098 (2015). Alvarez contends that "courts cannot tax general trial preparation expenses against criminal defendants." Alvarez cites no authority for this claim. Alvarez speculates that the district court assessed him the reimbursement of the prosecution's photographs as restitution. He cites State v. Harley, No. 93,349, 2005 WL (Kan. 2005) (unpublished opinion), for the proposition that restitution cannot be assessed in favor of the State in a criminal case. The State makes clear that it was not seeking restitution. This court need only address the district court's authority to impose 4

5 the prosecution's court costs on a defendant. Consequently, Alvarez' reliance on the Harley case is moot. If a defendant in a criminal case is convicted, the court costs "shall be taxed against the defendant." K.S.A (a). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). Despite the mandatory language of the statute, which statute he cites in his brief, Alvarez states that "there is no statutory provision authorizing taxation of court costs for the State's expense of preparing trial exhibits." It is well-established that upon conviction in a criminal action, the defendant is liable for the costs made in both the prosecution and the defense of the case. State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344 (1965). As such, the issue becomes whether the prosecution's expenses for developing the photographs can be considered a court cost. Under K.S.A Supp a(d): "All other fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute." (Emphasis added.) Alvarez does not argue that there is a cap or fixed rate on trial exhibits, so again, we must look to the language of the statute. The expenses for photographic trial exhibits reasonably fit within the "[a]ll other... expenses... shall be approved" parameters of K.S.A Supp a(d) and can be classified as court costs for the purpose of "taxing" them to a convicted defendant. Under these statutes, not only did the district court have the authority to assess the photographs as court costs to be reimbursed to the prosecution, it was mandated that it do so. The district court is affirmed on this issue. 5

6 DID THE DISTRICT COURT ERR BY SENTENCING ALVAREZ ACCORDING TO THE KANSAS SENTENCING GUIDELINES ACT? Interpretation of a sentencing statute is a question of law, and this court's review is unlimited. State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016). It is unclear from his appeal brief whether Alvarez is challenging his sentence based on an incorrect criminal history score that would render his sentence illegal, challenging the constitutionality of the Kansas Sentencing Guidelines Act (KSGA), or challenging the constitutionality of his sentence on other due process grounds. First, Alvarez cites to Ivory to provide the standard of review in this case. Ivory's appeal was an attack on the constitutionality of the KSGA sentencing grid. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). The constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. State v. Moore, 302 Kan. 685, 708, 357 P.3d 275 (2015). Generally, however, a defendant must raise a specific constitutional challenge to the statute before the sentencing court to preserve the issue for appeal. State v. Williams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014). Alvarez did not do this. Issues not raised before the trial court cannot be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). More to the point, the way Alvarez framed his issue demonstrates that the constitutionality of the KSGA is not the object of his appeal. He specifically argues, "The district court erred by elevating Mr. Alvarez' sentence based on a criminal history that the State had not proven to a jury beyond a reasonable doubt." Second, the authority Alvarez cites for the preservation of this second appeal issue is State v. Dickey, 301 Kan. 1018, 1027, 350 P.3d 1054 (2015), asserting the principle that an illegal sentence may be corrected at any time. To support application of Dickey, 6

7 Alvarez acknowledges he did not object to his criminal history score, but essentially alludes to the proposition that an objection to the score is irrelevant if the score renders the sentence illegal. An appellate court will address legal challenges to a defendant's criminal history for the first time on appeal. Dickey, 301 Kan. at In this case, Alvarez neither cites to, nor argues for, the application of K.S.A , nor did he raise the possibility with the district court. Alvarez does not provide any argument or proof that his criminal history as reflected in the PSI is inaccurate, nor does he even claim that his criminal history is inaccurate. In fact, not only did Alvarez not object to his criminal history score of D at his sentencing hearing, he stated openly that he had reviewed the PSI criminal history worksheet and that it was accurate. Alvarez admitted he had a criminal history score of D. A defendant who stipulates to his or her criminal history at sentencing cannot later claim that it is incorrect. The authority to admit prior criminal history belongs to the defendant, not defense counsel. State v. Vandervort, 276 Kan. 164, , 72 P.3d 925 (2003), overruled on other grounds State v. Dickey, 301 Kan. at Alvarez openly stipulated to his criminal history at sentencing. See K.S.A Supp (a) ("The offender's criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge."). There is nothing to show that the sentence was illegal. Next, in the analysis section of Alvarez' brief on this issue, he makes no substantive argument, nor does he cite to any authority in support of an argument. Rather, Alvarez asserts through a reference to Apprendi that he believes a defendant's criminal history should not be a factor at sentencing unless it is included in a charging document and proved to a jury beyond a reasonable doubt. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue and, thus, is abandoned. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015). 7

8 Alvarez then claims that his "enhanced" sentence "offends the Sixth and Fourteenth Amendments of the United States Constitution." The use of criminal history to calculate the presumptive KSGA sentence does not violate due process as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). State v. Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016) (reaffirming Ivory, 273 Kan. at 46-48); K.S.A Supp (b) ("[T]he summary of the offender's criminal history prepared for the court by the [S]tate shall satisfy the [S]tate's burden of proof regarding an offender's criminal history."). Finally, Alvarez acknowledges that the Kansas Supreme Court already decided this issue against him in Ivory, which this court is duty-bound to follow. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Nevertheless, Alvarez claims he raises the issue to preserve it for "potential federal review." However, no constitutional challenges were raised to the district court and raising them for the first time on appeal is not proper. Godfrey, 301 Kan. at Further, Alvarez fails to explain why this issue, which was not raised below, should be considered for the first time on appeal. See Williams, 298 Kan. at The trial court did not err when it accepted Alvarez' stipulations as to his criminal history and score and then applied it under the KSGA to determine and impose the standard sentence. The district court is affirmed. Affirmed. 8