State v. Holt

• Decision Date: 24 February 2017
• Docket Number: No. 113,990,113,990
• Citation: 305 Kan. 839,390 P.3d 1
• Parties: STATE of Kansas, Appellee, v. William D. HOLT II, Appellant.
• Court: Kansas Supreme Court

305 Kan. 839

390 P.3d 1

STATE of Kansas, Appellee,

v.William D. HOLT II, Appellant.

No. 113,990

Supreme Court of Kansas.

Opinion filed February 24, 2017

Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Elizabeth A. Billinger, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

State law requires a sentencing court in a criminal case to order restitution "unless [it] finds compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2015 Supp. 21–6604(b)(1). In this case, the district court ordered restitution after sentencing William Holt II to life imprisonment. It did not order Holt to begin paying while in prison.

A question on appeal is whether the district court abused its discretion when it determined a restitution plan would not be unworkable. We affirm because Holt did not present any evidence at his sentencing hearings concerning his ability to pay if he were ever released from prison. Instead, he said his prison income was $9 a month and referred to a four-year-old financial affidavit that represented he was an unemployed student with no assets when he was arrested. These facts would not compel a reasonable person to conclude a restitution plan was unworkable.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Holt of first-degree premeditated murder and aggravated burglary arising from the September 2010 killing of Mitch Vose, who was dating a woman with whom Holt had had an on-again/off-again relationship. See State v. Holt , 300 Kan. 985, 987, 336 P.3d 312 (2014). The Holt court affirmed the convictions but vacated the hard 50 sentence, based on an aggravating factor that was neither submitted to a jury nor proven beyond a reasonable doubt. 300 Kan. at 1008–09, 1012, 336 P.3d 312 (a sentencing judge found an aggravating factor by a preponderance of the evidence).

After the Holt decision was filed, the State initiated a new criminal action charging Holt with an attempted first-degree murder of Wendy Henderson, arising from the same transaction as Vose's murder. Holt pleaded guilty to attempted murder and agreed to the maximum sentence, to be served consecutive to the sentence imposed for the murder conviction. In exchange, the State declined to seek a new hard 50 sentence for the murder conviction, which would have required a second jury trial to determine aggravating factors necessary to make him eligible for such a sentence. See K.S.A. 2015 Supp. 21–6620(d)(2).

The cases were consolidated for resentencing on the first-degree murder conviction and initial sentencing on the attempted first-degree murder conviction. The district court imposed a hard 25 sentence for the first-degree murder and a 165–month sentence for the attempted first-degree murder, ordered to run consecutively. At the second sentencing hearing, the court reviewed its earlier restitution order from the first sentencing. At that time, Holt informed the court that he had no property and less than $100 cash. He also objected generally to the reasonableness of imposing restitution but otherwise offered no evidence in opposition.

During the second hearing, Holt's counsel informed the court:

"I asked you before [at the initial sentencing hearing on the first-degree murder conviction], the question in restitution, to find it's not doable, practicable. He's in jail. I would make the same request. I think I lost last time. I would ask you, you could waive attorneys [sic ] fees, BIDS fees, I would ask you to do that for the same reason. He's got a long stretch to do in prison. I don't see him ever paying anybody. But I would ask you to follow the plea bargain."

Holt did not put on any evidence to support his argument that restitution was unworkable. But Holt agreed with the court that his financial situation was the same as it was at the first sentencing hearing. He told the court he made $9 a month in prison. Addressing restitution, the district court judge said:

"Restitution, I've taken into account [defense counsel's] argument, and that's always something that can be adjusted at the time of parole if parole happens in this case by the parole board. But I am going to note that for restitution purposes the restitution is the amount [of] $12,406.58."

Although the court's order did not expressly state that restitution must wait until Holt's possible parole, it necessarily must be interpreted that way. See K.S.A. 2015 Supp. 21–6604(e) ("If the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole, conditional release or postrelease supervision."); K.S.A. 2015 Supp. 22–3717(n) (authorizing prisoner review board to consider compelling circumstances that would render district court's plan of restitution unworkable); State v. Alderson , 299 Kan. 148, 151, 322 P.3d 364 (2014) (to make defendant subject to collection of restitution during incarceration, district court must declare that intent unambiguously).

Holt appeals. Jurisdiction is proper. See K.S.A. 2015 Supp. 22–3601(b)(3) (appeal from criminal case in which life imprisonment imposed).

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

At sentencing, "the court shall order the defendant to pay restitution, which shall include, but not be limited to, 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. 2015 Supp. 21–6604(b)(1). Restitution is the rule and a finding that restitution is unworkable is the exception. State v. Alcala , 301 Kan. 832, 840, 348 P.3d 570 (2015).

The defendant bears the burden "to come forward with evidence of ‘compelling circumstances' that render the restitution plan unworkable." 301 Kan. at 840, 348 P.3d 570. The court has described this as a "burden to come forward with evidence of ... inability to pay." State v. Goeller , 276 Kan. 578, 583, 77 P.3d 1272 (2003), overruled on other grounds State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) ; see Alcala , 301 Kan. at 840, 348 P.3d 570 (holding defendant failed to sustain burden of demonstrating plan unworkable because he failed to present evidence of inability to pay amount ordered when due).

Standard of review

" ‘Questions concerning the "amount of restitution and the manner in which it is made to the aggrieved party" are reviewed under an abuse of discretion standard. [Citation omitted.] A district court's factual findings relating to the causal link between the crime committed and the victim's loss will be affirmed if those findings are supported by substantial competent evidence. Finally, appellate courts have unlimited review over legal questions involving the interpretation of the underlying statutes.’ " State v. Shank , 304 Kan. 89, 93, 369 P.3d 322 (2016) (quoting State v. King , 288 Kan. 333, 354–55, 204 P.3d 585 [2009] ).

Whether a district court's plan of restitution is unworkable is reviewed on appeal for abuse of discretion. 304 Kan. at 93, 369 P.3d 322.

Discussion

When restitution is ordered in conjunction with an off-grid life sentence and the restitution is not immediately payable, proof of unworkability due to inability to pay requires proof of inability to pay upon release. See Shank , 304 Kan. at 95, 369 P.3d 322 (counsel's representation that defendant would be unable to pay restitution in future did not demonstrate district court abused discretion awarding restitution); Alcala , 301 Kan. at 840, 348 P.3d 570 (district court did not err imposing restitution when defendant sentenced to life imprisonment failed to present evidence of inability to pay after parole). The court has not viewed the financial affidavit filed to obtain appointed counsel as sufficient to sustain the burden of proving future inability to pay. See Goeller , 276 Kan. at 583, 77 P.3d 1272 (noting in recitation of facts that financial affidavit demonstrating poverty was filed, but the court ruled defendant "presented no evidence of his inability to pay").

The court's decision in Alcala is on point. In that case, the district court ordered $43,230.77 in restitution over defendant's objection that restitution would be unworkable because he had no way to pay, he was incarcerated, and the State failed to prove he would work or be able to work while imprisoned. The Supreme Court rejected the workability argument because "imprisonment alone is not sufficient to render restitution unworkable." 301 Kan. at 840, 348 P.3d 570. The court reasoned, "The district court did not order Alcala to pay a fixed amount of restitution per month, nor did it explicitly order Alcala to begin payments while incarcerated. This indicates further restitution will not be collected until [defendant] is paroled, if that ever occurs." 301 Kan. at 840, 348 P.3d 570. The court concluded, "Having presented no evidence of his inability to pay restitution after his possible parole, Alcala failed to sustain his burden of demonstrating the restitution plan was unworkable." 301 Kan. at 840, 348 P.3d 570.

Similarly, Holt's restitution order does not impose an immediate obligation to begin making payments. The district court acknowledged this, noting the potential for the parole board to make adjustments upon Holt's release. See K.S.A. 2015 Supp. 22–3717(n) (providing if sentencing court orders restitution as condition of parole, prisoner review board shall order amount specified in journal entry unless it finds compelling circumstances which would render a plan of restitution unworkable). At the sentencing hearing, Holt at most demonstrated his current income and lack of assets. His failure to present evidence of an inability to...