State v. Hall

• Decision Date: 28 February 2014
• Docket Number: No. 102,495.,102,495.
• Citation: 298 Kan. 978,319 P.3d 506
• Parties: STATE of Kansas, Appellee, v. Anthony Earl HALL, Appellant.
• Court: Kansas Supreme Court

298 Kan. 978

319 P.3d 506

STATE of Kansas, Appellee,

v.Anthony Earl HALL, Appellant.

No. 102,495.

Supreme Court of Kansas.

Feb. 28, 2014.

Syllabus by the Court

1. Because restitution constitutes a part of a criminal defendant's sentence, its amount can be set only by a district judge in open court with the defendant present. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.

2. A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.

3. A defendant may waive his or her right to be present in open court when a district judge sets the amount of restitution as part of a continued sentencing hearing.

4. In a criminal matter, a notice of appeal that seeks review of a conviction and a sentencing yet to be completed lies dormant until the final judgment including the complete sentence is pronounced from the bench, at which point the notice of appeal becomes effective to endow the appellate court with subject matter jurisdiction.

5. Under the facts of this case, the relocation expenses of the victim of attempted rape can fairly be regarded as caused by defendant's crime, and substantial competent evidence supported the district judge's causation determination and restitution award under K.S.A. 21–4603d(b)(1).

6. Defendant's argument that the use of his criminal history for sentencing purposes, without proving his criminal history to his jury beyond a reasonable doubt, increased his maximum possible penalty for his primary offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is without merit.

Jennifer E. Bazin, of Law Office of Carol Ruth Bonebrake, PA, of Topeka, was on the brief for appellant.

Jason E. Geier, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

Anthony Earl Hall pleaded guilty to attempted rape, attempted second-degree murder, and aiding a felon. At his sentencing hearing, the district court judge sentenced Hall to a term of imprisonment and ordered restitution to remain open for 30 days. At a later hearing, the district court judge ordered Hall to pay more than $32,000 in restitution, including $469 for relocation expenses incurred by the victim of the attempted rape.

Hall appealed the district court's order of restitution on two grounds. First, he argued that the district court lacked subject matter jurisdiction to impose restitution after the first hearing. Second, and in the alternative, he argued that the victim's relocation expenses were not caused by his crime and were improper under K.S.A. 21–4603d(b)(1). In State v. Hall, No. 102,495, 2010 WL 5490727, at *2–6 (Kan.App.2010) (unpublished opinion), a panel of our Court of Appeals affirmed the restitution order. Hall also unsuccessfully appealed the judge's use of his criminal history in calculating his sentence. The Court of Appeals rejected Hall's argument under State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). 2010 WL 5490727, at *6.

Hall petitioned this court for review of his restitution arguments and the Ivory issue.

Factual and Procedural Background

In late 2006, Hall, along with his two brothers, Christopher and Mike Hall, committed several violent crimes in Topeka. The State filed three cases against Hall. Under a plea agreement, Hall pleaded guilty to charges in all three cases in exchange for dismissal of other charged conduct. A consolidated appeal of the district court's order of restitution followed.

In case 07–CR–332, the State charged Hall with alternative counts of attempted rape and sexual battery based on an attack on S.G. in November 2006. S.G. had just finished doing laundry in her apartment complex's laundry room when, as she was walking up the steps from the room, she heard someone approach from behind her. She turned around and saw Hall, a resident and maintenance worker at the complex, standing naked with an erection. Hall grabbed S.G. around her neck, covered her mouth, and pulled her back down the stairs. Hall told S.G., “Bitch you fuckin['] scream and I will fuck you up.” Fearing for her life, S.G. nevertheless screamed and resisted. Hall smashed S.G.'s head against the wall twice and attempted to pull down her pants. S.G. was able to break free and run from the apartment complex. Hall ran in the opposite direction.

The charges in case 07–CR–748 were based on a Christmas Day 2006 attack carried out by Hall and his two brothers. Armed with two “giant hammer[s]” and a BB gun, the three entered the apartment of Michael Delaney and struck him and his girlfriend, Jennifer Hughes, multiple times. Delaney suffered a depressed skull fracture, subdural hematoma, and hemorrhaging. He was airlifted to a hospital in Kansas City. Hughes suffered three skull fractures from a blow to the back of her head. She required plates in her two broken hands—defensive injuries she received while trying to protect her head during the attack. The State charged Hall with aggravated robbery and two counts of attempted second-degree murder with alternative charges of aggravated battery.

In case 08–CR–568, Hall was charged with aiding a felon after he helped his brother Christopher dispose of a 15–year–old female's body in a field near Lake Shawnee. Hall helped Christopher load the body into a car. Once Hall and Christopher reached the field, Hall poured gasoline on the nude body, and Christopher set it on fire. According to the coroner's report, the victim had died as a result of a broken neck and a skull fracture and displayed injuries consistent with being kicked or stomped. A rape kit recovered semen from the victim's vagina, and a subsequent DNA analysis matched the semen to Christopher.

Hall pleaded guilty to attempted rape, attempted intentional second-degree murder, and aiding a felon. In exchange, the State dismissed all other charges. Hall's plea agreement stated that Hall would be responsible for restitution.

On December 19, 2008, the district judge sentenced Hall to consecutive sentences of 102 months' imprisonment for attempted rape and 102 months' imprisonment for attempted second-degree murder and a concurrent sentence of 19 months' imprisonment for aiding a felon. At the State's request, the district judge ordered restitution to remain open for 30 days. At the end of the hearing, the district judge informed Hall that he had 10 days to appeal his conviction and sentence. Hall filed his notice of appeal on December 22, 2008. Eight days later, the State filed a motion for a hearing on restitution.

On March 10, 2009, 81 days after the first hearing, the district judge held another hearing in open court with Hall and his counsel present. None of the victims or their families requested restitution at this second hearing. The State put on evidence that the Crime Victims Compensation Board (Board) had paid $5,363 for various expenses incurred by S.G., including counseling fees ($1,200), lost wages ($3,296), relocation expenses ($469), and “other” expenses ($395).

Hall's counsel objected to all but the counseling fees. Hall argued that the Board's criteria for paying expenses were broader than the extent of the court's discretion to award restitution under K.S.A. 21–4603d(b)(1) and that the contested expenses were not caused by the crime.

The district judge determined that Hall's crime was a “direct cause” of the lost wages and relocation expenses and ordered Hall to pay $4,965. According to the judge, the “other” expenses were too vague to determine any causal link to the crime. The judge also ordered Hall to pay a total of $27,109.67 in restitution in connection with the attack on Delaney and Hughes. The judge deferred his determination of a restitution amount for Hall's aiding of a felon. It is unclear from the record on appeal and the parties' briefs whether the district judge ever ordered Hall to pay restitution as a result of that crime; neither side argues about it; and we therefore disregard the judge's statement that consideration of the issue was deferred.

Before the Court of Appeals, Hall initially argued that the district judge lacked subject matter jurisdiction to order restitution because he unlawfully modified the sentence imposed during the first hearing. The Court of Appeals panel held that this court's decision in State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1999), controlled. Hall, 2010 WL 5490727, at *2. Under Cooper, a district court could order restitution at sentencing but had discretion to set the amount of restitution at a later date. 267 Kan. at 18, 977 P.2d 960.

Hall also argued in the alternative to the Court of Appeals that the $469 for S.G.'s relocation expenses were improper under K.S.A. 21–4603d(b)(1). The panel noted that the statute required a district judge's order of restitution to “ ‘include, but not be limited to, damage or loss caused by the defendant's crime....’ ” Hall, 2010 WL 5490727, at *4. Accordingly, a majority held that a causal link between a defendant's crime and a victim's loss was dispensable. Having so held, the majority nevertheless concluded that S.G.'s relocation expenses were “actually and proximately caused” by Hall's crime of attempted rape. 2010 WL 5490727, at *6. In a concurring opinion, Judge G. Gordon Atcheson agreed with the majority that S.G.'s moving expenses were reasonable and caused by Hall's crime. He said he “would leave for other cases and other circumstances any additional discussion of what may or may not be allowable as restitution costs under Kansas law.” 2010 WL 5490727, at *6 (Atcheson, J., concurring).

The panel unanimously rejected Hall's Ivory argument. 2010 WL 5490727, at *6.

This court granted Hall's petition for review.

Discussion

Subject...