State v. Futrell

• Decision Date: 23 December 2016
• Docket Number: No. 115,160,115,160
• Citation: 387 P.3d 176
• Parties: STATE of Kansas, Appellee, v. Christopher Scott FUTRELL, Appellant.
• Court: Kansas Court of Appeals

387 P.3d 176

STATE of Kansas, Appellee,

v.Christopher Scott FUTRELL, Appellant.

No. 115,160

Court of Appeals of Kansas.

Opinion filed December 23, 2016.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Barry K. Disney, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Leben, J., and Hebert, S.J.

Atcheson, J.:

This case plunges us into yet another controversy on how district courts should fashion restitution awards imposed on convicted criminals. A majority of this panel departs from our colleagues' view in State v. Miller , 51 Kan.App.2d 869, Syl. ¶ 2, 355 P.3d 716 (2015), and holds that a defendant convicted of burglary may be ordered to pay restitution for property stolen during the course of the break-in—a result that seems both eminently logical and fully consistent with K.S.A. 2015 Supp. 21–6607(c)(2) by imposing restitution on a defendant for any loss caused by his or her crime of conviction. Judge Leben, as the author of Miller , not surprisingly disagrees. On this point, we affirm the restitution order the Riley County District Court entered against Defendant Christopher Scott Futrell arising from a residential burglary.

But the panel unanimously reverses the district court's restitution order with respect to a vehicular break-in unconnected to Futrell's conviction for the residential burglary. We otherwise unanimously affirm the restitution order. Apart from the restitution issues, Futrell does not challenge his conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

Because Futrell disputes only the restitution order, we need not recount the details of his criminal conduct. We sketch those circumstances briefly.

Futrell was a disgruntled employee of Ryan Platt. Platt coordinated events, such as concerts and large private parties, and, as a result, often had to briefly hold large amounts of cash. While Platt was closing an event venue on January 31, 2015, someone broke into his SUV and took $6,220 in cash. The damage to the vehicle cost $303.41 to repair. About 3 weeks later, someone burglarized Platt's home and stole his wife's wedding ring and between $600 and $700 in cash. Repairs to the backdoor cost $250.

Platt identified Futrell as a likely suspect in light of their deteriorating work relationship. Law enforcement officers found the stolen wedding ring at Futrell's home. In a single case, the Riley County Attorney charged Futrell with burglary and theft in connection with the loss from Platt's SUV and burglary and theft for the break-in at Platt's house.

The County Attorney charged Futrell with criminal damage to property in a separate case for smashing his then-girlfriend's smartphone. The phone had a market value of about $500.

The County Attorney and Futrell, acting through his lawyer, negotiated a plea agreement. Futrell pled no contest to the burglary of Platt's house, and the State dismissed all of the other charges in both cases. The written plea agreement outlined sentencing recommendations to the district court in anticipation of Futrell receiving probation. As to restitution, the agreement provided that "[t]he issue ... is open" and that "the State may ask for restitution for the victim" in the criminal damage to property case.

The district court accepted Futrell's plea and later placed him on probation in conformity with the recommendations in the agreement. The district court held an evidentiary hearing on restitution. The testimony conformed to what we have already outlined. So the district court ordered Futrell to pay Platt restitution for the damage to his SUV, the cash taken from the vehicle, the damage to his house, and the cash taken from there. The wedding ring was recovered, apparently undamaged, obviating the need for restitution. The district court also ordered Futrell to pay $500 to his girlfriend for the destruction of her smartphone. Futrell has timely appealed various aspects of the restitution order.

LEGAL ANALYSIS

As provided in K.S.A. 2015 Supp. 21–6607(c)(2), a district court placing a criminal defendant on probation "shall order the defendant to ... make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime." The amount of restitution and how it should be paid largely rest within the district court's discretion and will be reviewed on appeal for abuse of that authority. See State v. Shank , 304 Kan. 89, 93, 369 P.3d 322 (2016). A district court exceeds judicial discretion if it rules in a way no reasonable judge would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013) ; State v. Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

Before turning to the specific issues here, we outline some of the judicial gloss on the statute governing restitution orders. Defendants may be ordered to pay restitution only if the loss has been caused by their crimes of conviction unless they have agreed to pay restitution for crimes that were never charged or have been dismissed. State v. Dexter , 276 Kan. 909, Syl. ¶ 3, 80 P.3d 1125 (2003) ; State v. Chandler , No. 107,111, 2013 WL 1234223, at *1–2 (Kan. App. 2013) (unpublished opinion). The Kansas Supreme Court has recognized the language in K.S.A. 2015 Supp. 21–6607(c)(2) does not require a direct causal link between the crime and the loss—an indirect connection may be sufficient. In discussing the predecessor to K.S.A. 2015 Supp. 21–6607(c)(2), the court said: "Although not all tangential costs incurred as a result of a crime should be the subject of restitution [citation omitted], there is no requirement that the damage or loss be ‘directly’ caused by the defendant's crime." State v. Hall , 298 Kan. 978, 990, 319 P.3d 506 (2014). It made the same point in State v. Hand , 297 Kan. 734, 739, 304 P.3d 1234 (2013) ("[T]he statute's reference to damage or loss ‘caused by’ a defendant's crime is not modified by the adverb ‘directly.’ ").

Over the past several years, the Kansas Supreme Court has grappled with how district courts may measure a victim's loss, especially for property crimes. See Hand , 297 Kan. at 739–40, 304 P.3d 1234 (premium surcharge insurer assessed victim after he filed claim for stolen property appropriate measure of restitution imposed on criminal defendant rather than fair market value of property); State v. Hall , 297 Kan. 709, 709–10, 304 P.3d 677 (2013) (In fashioning a restitution order, the district court may consider either the wholesale cost or retail value of inventory stolen from a commercial enterprise.).

As part of a criminal sentence, restitution serves multiple purposes. It is not intended to be purely or even primarily punitive. Most obviously, of course, restitution provides a vehicle for financial compensation to crime victims for their losses. See K.S.A. 2015 Supp. 21–6607(c)(2) ; State v. Cox , 30 Kan.App.2d 407, 408–09, 42 P.3d 182 (2002). As to the defendant, restitution aims to rehabilitate and deter rather than strictly to punish. 30 Kan.App.2d at 409, 42 P.3d 182. The payments ideally instill in criminal wrongdoers some sense of the costs their actions have inflicted on others. State v. Heim , No. 111,665, 2015 WL 1514060, at *2 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. 1015, ––– P.3d –––– (2015). Those functions take on added and more immediate significance where, as here, the district court places a defendant on probation rather than incarcerating him or her. Restitution occupies a place quite different from other components of a sentence imposed on a probationer by providing a calibrated measure of acceptance of responsibility for criminal conduct and of a willingness to reform.

We now look at the restitution issues on which the panel agrees. First, the district court erred in ordering Futrell to pay restitution for the damage and loss associated with the break-in of Platt's SUV. Both of the criminal charges arising from that incident were dismissed. So Futrell was not convicted of any offense related to the SUV. Neither in the plea bargain nor during the plea itself did Futrell agree to be responsible for Platt's losses from that break-in. Consistent with the rule in Dexter , Futrell cannot be required to pay restitution based on those dismissed charges. 276 Kan. at 919, 80 P.3d 1125 ("[A] district court ... may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crime.").

In Dexter , the defendant was charged with seven counts of impairing a security interest related to his disposition of motor vehicles covered by liens. He pled guilty to one count, and the remaining charges were dismissed.

The district court imposed restitution measured by the losses to the secured party in all seven counts. On appeal, the Kansas Supreme Court found the restitution order to be legally improper as to the six dismissed counts precisely because the defendant had not been convicted of them and had not agreed to assume financial responsibility for them. Dexter , 276 Kan. at 919, 80 P.3d 1125. With respect to the SUV break-in, Futrell's position is legally and factually indistinguishable from Dexter's. Accordingly, we reverse the restitution order as to the damage to the SUV and the theft of cash from it.

Second, we consider the order of restitution to Futrell's girlfriend for the damage to her smartphone. The underlying charge for criminal damage to property was dismissed as part of the negotiated plea. But Futrell agreed the...