State v. Barrett, 092421 KSCA, 122, 410

CourtCourt of Appeals of Kansas
JudgeBefore BUSER, P.J., POWELL and HURST, JJ.
Writing for the CourtPOWELL, J.
PartiesState of Kansas, Appellee, v. Tommie Lee Barrett, Appellant.
Docket Number411,410 122,122

State of Kansas, Appellee,

v.

Tommie Lee Barrett, Appellant.

Nos. 122, 410 122, 411

Court of Appeals of Kansas

September 24, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., POWELL and HURST, JJ.

MEMORANDUM OPINION

POWELL, J.

Without having raised these issues before the district court, Tommie Lee Barrett appeals both the order of restitution and the aggravated sentence he received in two consolidated cases. Barrett contests the restitution order because he was not given a restitution payment plan and claims, therefore, that the order constitutes an illegal sentence. Barrett also argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing an aggravated sentence without requiring the State to prove his criminal history to a jury beyond a reasonable doubt. For reasons more fully explained below, we reject Barrett's claims and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

For acts he committed in June 2019, the State charged Barrett in two cases. In the first, Barrett was charged with two counts of burglary, two counts of theft, one count of aggravated burglary, and one count of criminal possession of a weapon by a felon. In the second case, Barrett was charged with one count of possession of methamphetamine and one count of possession of stolen property. Pursuant to a plea agreement encompassing both cases, Barrett pled guilty to aggravated burglary in the first case and theft in the second; he also agreed to pay restitution as requested by the victims. In exchange, the State agreed to dismiss the remaining counts in both cases.

At sentencing in November 2019, the district court denied Barrett's motion for durational or dispositional departure and sentenced him to 60 months' imprisonment in the aggravated burglary case and 12 months' imprisonment in the theft case. The district court also ordered restitution in the theft case in the amount of $1, 299.43, stating specifically that it was "collectible immediately and while in custody." Barrett did not object to restitution. The district court later amended Barrett's sentence in the theft case to 27 months' imprisonment after the district court determined it had incorrectly pronounced the severity level for that conviction. The district court affirmed and incorporated all other previously pronounced sentencing conditions, including the restitution order, at the resentencing hearing.

Barrett timely appeals.

I. DID THE DISTRICT COURT IMPOSE AN ILLEGAL SENTENCE BY FAILING TO PROVIDE A RESTITUTION PAYMENT PLAN?

Barrett argues the district court imposed an illegal sentence because it failed to set a payment plan for restitution. He asks us to vacate the restitution order and remand the matter so the district court may set a payment plan. Barrett further contends that a failure to remand would violate due process because it would remove his vested interest in the district court setting a payment plan, an interest that was available to him at the time of sentencing.

As we noted at the outset, Barrett raises his assertion that his restitution order is illegal for the first time on appeal. Typically, appellants cannot raise issues on appeal that they did not raise before the district court. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, "certain issues, such as subject matter jurisdiction or an illegal sentence, can be raised at any time regardless of whether the issue was presented to the district court." State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019); see K.S.A. 2020 Supp. 22-3504(a) ("The court may correct an illegal sentence at any time while the defendant is serving such sentence."). Restitution is part of a defendant's sentence. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014).

Whether a sentence is illegal within the meaning of K.S.A. 2020 Supp. 22-3504(c) is a question of law subject to our unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). A sentence is illegal when: (1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable statutory provisions, either in character or the term of punishment; or (3) it is ambiguous about the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c); State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019). A sentence is not illegal because of a change in the law that occurs after the sentence is pronounced. K.S.A. 2020 Supp. 22-3504(c)(1). But a change in the law is one that occurs after the sentence is pronounced, "unless the opinion is issued while the sentence is pending on appeal from the judgment of conviction." K.S.A. 2020 Supp. 22-3504(c)(2).

Barrett appears to be arguing his sentence is illegal because it does not conform in character to the statutory provisions. He states: "At the time of sentencing, K.S.A. 2019 Supp. 21-6604(b)(1) &(2) required a district court to set a payment plan when ordering restitution. The district court in the present case failed to set a payment plan, and, as such, the restitution order in the present case is illegal." Parenthetically, we note the parties argue the applicability of the 2019 version of the statute, but at the time Barrett committed his crimes, the 2018 version was in effect. Fortunately, the two versions are the same in relevant part, so we apply their arguments as if they were arguing the applicability of the 2018 version.

To evaluate the legality of Barrett's restitution order, we must first interpret the statute that addresses restitution. We exercise unlimited review of legal questions involving the interpretation of the underlying statutes. State v. Martin, 308 Kan. 1343, 1350, 429 P.3d 896 (2018).

When Barrett was sentenced in November 2019, K.S.A. 2018 Supp. 21-6604(b) governed restitution orders and stated in relevant part: "(1) . . . [T]he court shall order the defendant to pay restitution . . . unless the court finds compelling circumstances that would render a plan of restitution unworkable. . . . If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.

"(2) . . . If, after 60 days from the date restitution is ordered by the court, a defendant is found to be in noncompliance with the plan established by the court for the payment of restitution, . . . the court shall assign an agent . . . to collect the restitution on behalf of the victim." (Emphases added.)

While this case has been on appeal, another panel of this court held that this statute required the district court to set a restitution plan. State v. Roberts, 57 Kan.App.2d 836, 845, 461 P.3d 77, vacated and remanded 2020 WL 8269363, at *1 (2020).

Subsequent to the Roberts opinion, however, the Legislature amended K.S.A. 21-6604(b), effective June 11, 2020, to remove all references to a restitution plan. L. 2020, ch. 9, § 1. The amended version states:...

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