State v. Applegate

• Decision Date: 05 March 1999
• Docket Number: No. 81,288,81,288
• Citation: 976 P.2d 936,266 Kan. 1072
• Parties: STATE of Kansas, Appellant, v. Jason C. APPLEGATE, Appellee.
• Court: Kansas Supreme Court

Page 936

976 P.2d 936

266 Kan. 1072

STATE of Kansas, Appellant, v. Jason C. APPLEGATE, Appellee.

No. 81,288.

Supreme Court of Kansas.

March 5, 1999.

Syllabus by the Court

1. In sentencing a defendant to a nonprison sentence, in addition to any other conditions of probation, suspension of sentence, or assignment to a community correctional services program, the court shall order the defendant to make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable. K.S.A. 21-4610(d)(1).

2. Restitution is not merely victim compensation but also serves the functions of deterrence and rehabilitation of the guilty. Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence.

3. The sentencing judge has considerable discretion in determining the amount of restitution under K.S.A. 21-4610(d)(1).

Jared S. Maag, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellant.

Jeffery A. Mason, of Vignery & Mason, L.L.C., of Goodland, argued the cause and was on the brief for appellee.

LOCKETT, J.:

The State appeals, claiming that the district court abused its discretion by finding that the defendant's restitution obligation under K.S.A. 21-4610(d)(1) had been satisfied by the settlement in a civil suit.

On May 25, 1996, roadway conditions were poor. Jason C. Applegate, with a blood alcohol level of greater than .08, while driving at a speed in excess of 70 mph, attempted to pass a vehicle. There were three passengers in Applegate's car: Chad S. Wolfe, Tyler J. Callicrate, and Heather M. Draper. Applegate's vehicle left the roadway into a ditch, slid on the wet grass, struck a small field entrance, became airborne, landed on its top, rolled several times, and came to rest on its top. Applegate and Wolfe were injured. Draper and Callicrate were killed in the accident.

On September 23, 1996, Applegate pled guilty to two counts of involuntary manslaughter and one count of aggravated battery committed while driving under the influence of alcohol. On January 14, 1997, the district court sentenced Applegate to concurrent sentences of 36 months and ordered him to serve 30 days in the county jail prior to being placed on probation. The journal entry of judgment provided that restitution would be ordered in an amount agreed to by the parties or a hearing to set restitution would be set at a later date.

In February 1997, a settlement of civil tort claims against Applegate was reached. Applegate's insurance carriers agreed to pay the plaintiffs (the injured victim and the parents of the deceased victims) a specified sum on behalf of Applegate. The plaintiffs agreed to release the insurance companies and Applegate from "any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever."

On May 18, 1998, the question of restitution was heard in the criminal case. The district judge found Applegate's restitution obligation in the criminal action had been satisfied by the settlement in the civil case and refused to order further restitution. The State appeals, claiming the district court abused its discretion in finding that the settlement entered into between the victims' families and the defendant satisfied restitution in the underlying criminal matter.

The State asserts that a civil judgment does not affect the criminal court's statutory mandate to order restitution. The State concedes there is no indication that the Kansas Legislature, in enacting K.S.A.1995 Supp. 60-4304 and K.S.A. 21-4610(d)(1), intended to allow one to exceed full compensation and reap a "windfall." The State asserts that the determination to be made in this case is not whether a windfall would occur, but how a civil judgment is credited against criminal restitution.

Applegate contends that the question is not whether restitution should have been ordered, but whether the judge abused his discretion in finding that the restitution required under K.S.A. 21-4610(d)(1) was satisfied by the compensation the victims received in the civil action from the defendant's insurance carriers.

Release of Claims

The first question we will consider is the effect on the criminal court of the parties' release of claims which was executed at the settlement of the civil case.

Although judges of the district court are mandated to order restitution as a condition of probation, whether a release of claims in a civil settlement precludes a restitution order in a criminal action is a question of law. An appellate court's review of questions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

The release signed by the victims in the civil action provided:

"For the Sole Consideration of One Hundred Thousand Dollars ($100,000.00), ... the undersigned hereby release and forever discharge [Insurance Companies], Jason Applegate, and Tyler Callicrate, deceased, their heirs, executors, administrators, agents and assigns, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 25th day of May 1996, in Cheyenne County, Kansas."

The Kansas statutes mandate that in addition to any other conditions of probation, suspension of sentence, or assignment to a community correctional services program, the court is required to order the defendant to make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime unless the court finds compelling circumstances which would render a plan of restitution unworkable. K.S.A. 21-4610(d)(1). A judgment of restitution does not bar any subsequent civil remedy or recovery, but the amount of any restitution paid is to be set off against any subsequent civil recovery. See K.S.A.1995 Supp. 60-4304.

Here, the release was a contract between the victims, the defendant, and the defendant's insurance companies, settling the defendant's civil liability. The State was not a party to the agreement. A civil release of claims does not and cannot specifically preclude court-ordered restitution in a criminal case.

Effect of Civil Settlement

The question of the effect of a civil settlement on restitution in a criminal case is an issue of first impression in Kansas.

Restitution is not merely victim compensation but also serves the functions of deterrence and rehabilitation of the guilty. State v. Hinckley, 13 Kan.App.2d 417, 419, 777 P.2d 857 (1989). Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence. Church Mut. Ins. Co. v. Rison, 16 Kan.App.2d 315, 318, 823 P.2d 209 (1991); see K.S.A. 21-4603d. The sentencing judge has considerable discretion in determining the amount of restitution, but the court must, pursuant to K.S.A. 21-4610(d)(1), order restitution for the offense of conviction. State v. Ball, 255 Kan. 694, 701, 877 P.2d 955 (1994).

While K.S.A.1995 Supp. 60-4304(b) credits the restitution amount against any civil damage award, the statute does not address the converse question of whether a civil damage award may or must be credited against the restitution ordered in a criminal proceeding.

Both parties rely on State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (1991), in support of their respective positions regarding the effect of a civil settlement on criminal restitution. The Arizona statutes applicable in the Iniguez case are similar to the Kansas statutes in that, in the usual case, restitution is a mandatory condition of probation, and restitution ordered in criminal court is an offset against any subsequent civil recovery by the victim against the defendant. See Ariz.Rev.Stat. Ann. § 13-603 (1989); Ariz.Rev.Stat. Ann. § 13-804 (1989); Ariz.Rev.Stat. Ann. § 13-807 (1989).

The Iniguez court considered the purpose of restitution to determine whether a civil recovery may be applied to the defendant's restitution requirement. The court concluded that, although reparation is one purpose of restitution, the goals and methods of restitution in a criminal case differ from those of damages in a civil action. 169 Ariz. at 536, 821 P.2d 194. Iniguez pointed out that one goal of restitution is rehabilitation of the convicted person. The court stated that such a requirement forces an offender " 'to recognize the specific consequences of his criminal activity and accept responsibility for those consequences.' " 169 Ariz. at 536, 821 P.2d 194 (quoting State v. Merrill, 136 Ariz. 300, 302, 665 P.2d 1022 [1983] ).

Iniguez concluded that restitution and civil damages are independent under Arizona law. However, because restitution promotes the rehabilitative purpose of the criminal law and because civil damage payments may not be fully compensatory, the court held that a sentencing court is not automatically foreclosed from ordering some restitution simply because the victim has received some compensation as a result of a civil action. 169 Ariz. at 536, 821 P.2d 194.

The Iniguez court next addressed the question of whether the civil judgment affects the amount of restitution in the criminal case. The court noted that the applicable Arizona statute mandates the court to order restitution in the "full amount of the economic loss." 169 Ariz. at 537, 821 P.2d 194 (quoting Ariz.Rev.Stat. Ann. § 13-603[C] [...