State v. Hunziker

• Citation: 274 Kan. 655,56 P.3d 202
• Decision Date: 25 October 2002
• Docket Number: No. 86,861.,86,861.
• Parties: STATE OF KANSAS, Appellee, v. ROBERT CLINTON HUNZIKER, Appellant.
• Court: Kansas Supreme Court

274 Kan. 655

56 P.3d 202

STATE OF KANSAS, Appellee, v. ROBERT CLINTON HUNZIKER, Appellant.

No. 86,861.

Supreme Court of Kansas.

Opinion filed October 25, 2002.

Paul R. Oiler, of Hays, argued the cause and was on the briefs for appellant.

Edward C. Hageman, county attorney, waived oral argument, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Robert Clinton Hunziker, from his plea of guilty to one felony count of criminal damage to property and one count of misdemeanor theft. At the restitution hearing, the district court ordered that Hunziker and his codefendant, Nicholas D. Cox, would be required to pay the attorney fees incurred by the victim for consultation in preparation of the restitution memo presented to the court. In addition, the court ordered them to pay for the market value of a damaged backhoe, towing expenses, mileage, touch-up paint, work hired, and lost profits. Hunziker appealed, contesting the restitution ordered by the district court and the amount of his required monthly payment. Cox also filed an appeal.

Both Hunziker and Cox questioned the district court's inclusion of the victim's attorney fees in the restitution order. In Hunziker's case, the Court of Appeals determined that attorney fees should be included as restitution, but in Cox's case, the Court of Appeals held that attorney fees should not have been included as part of the restitution order. See State v. Hunziker, 30 Kan. App.2d 279, 41 P.3d 880 (2002); State v. Cox, 30 Kan. App.2d 407, 42 P.3d 182 (2002). We granted Hunziker's petition for review to resolve the conflicting decisions of the Court of Appeals.

Hunziker's convictions arose from an incident on August 16, 2000, in which Hunziker and Cox took traffic cones and a barricade belonging to the City of Palco and burned a pasture, trees, and Floyd Van Loenen's backhoe tractor. Hunziker entered a plea of guilty in the District Court of Rooks County, Kansas, to one count of felony criminal damage to property and one count of misdemeanor theft. District Judge Thomas L. Toepfer suspended Hunziker's 6-month jail sentence and placed him on 1 year of probation under the supervision of the Court Services Officer. Hunziker was ordered to begin paying $125 per month for court costs of $146, a $50 probation fee, restitution, and attorney fees. The question of the proper amount of restitution was reserved for determination at a later hearing.

The district court conducted a restitution hearing. At the hearing, Hunziker and Cox stipulated to $200 restitution to George Whisman for the damage to his pasture and trees. The remainder of the hearing concerned restitution for Van Loenen. Van Loenen testified that he had hired a personal attorney, Randall Weller, to advise him since he was unfamiliar with court procedures and had never been to court. A restitution booklet prepared by Weller tallied the repair bills for Van Loenen's backhoe, jobs lost, miscellaneous expenses, and attorney fees, plus statutory interest for claimed restitution damages of $14,403.47. The list included $9,311.32 for repairs; $1,018.97 to replace and mount new tires; $2,115 for lost work; $400 to hire someone to complete jobs; $125.88 in towing expenses; $272.80 in mileage to check the repairs; $21.97 for touch-up paint; and $700 for private attorney fees. Hunziker, however, had introduced an exhibit showing that the fair market value of the 1975 backhoe would range from $7,500 to $8,750. In response to Judge Toepfer's questions, Van Loenen testified that the expenses associated with backhoe work generally would cost him one-third of the gross income.

After hearing the oral arguments of counsel for the parties, the district court stated:

"I think I'm ready to make my decision. This is a senseless act, there's no question about that, and I think the defendants admitted that at the time of their sentencing. Mr. Van Loenen obviously had a tractor that he felt comfortable with and enjoyed and it was important to him and for no good reason that tractor was essentially destroyed.

....

"... I will find therefore that the value in terms of the tractor is the fair market value as estimated by Murphy Tractor and Equipment, and I for this purpose, because there is testimony that it was a good tractor in good condition and well maintained, I'm going to accept the higher value of $8,750.

"With regard to the lost work, the itemized jobs lost, there is $2,115 gross revenue. I'm going to reduce that by one-third which is $705, that would be the necessary expenses that he didn't have to expend. The net on that would be $1,410.

"The Becker Company bill apparently is a bill that he had to pay, that's $400, and I will award that. The miscellaneous items I believe are all fair and reasonable. I think Mr. Weller's fees are reasonable, and I think they should be included to the full amount. I think it's $700 instead of $450. So there's an additional $250 that needed to be added to that figure of $870.65.

"Regarding interest, I believe that interest is an appropriate factor in case of restitution. It is lost money and should be paid unless counsel has case law to the contrary. I'm not aware of any."

Hunziker filed a timely appeal of the district court's restitution order. The Hunziker appeal was heard by the Court of Appeals. That court found that a trial court may award attorney fees if a causal connection exists between the defendant's criminal conduct and the victim's attorney fees. The court held that Van Loenen's retainer of an attorney was a "reasonable and logical result" of Hunziker's criminal conduct. 30 Kan. App.2d 286. Ultimately, the court held that the district court correctly included Van Loenen's attorney fees in the restitution order. In addition, the court found that since Hunziker failed to argue to the trial court that the restitution plan was financially unworkable, the issue of the trial court's consideration of his financial obligations was not preserved for appeal.

Following the Court of Appeals' decision, Hunziker petitioned this court for review, based on the conflicting Court of Appeals' decision in his codefendant's case. In Cox, the Court of Appeals decided that it was the county attorney's duty to compute the victim's losses and to advise the court on restitution and found that Van Loenen's attorney fees were not a "direct result" of the defendant's criminal acts. Consequently, in Cox, the court reversed the trial court's imposition of private attorney fees in the restitution order.

This court granted Hunziker's petition for review due to the conflicting Court of Appeals' decisions.

We begin with a determination of the proper standard of appellate review of a sentencing court's imposition of restitution. Both parties cite State v. Casto, 22 Kan. App.2d 152, 912 P.2d 772 (1996), as authority for the proposition that the correct standard of appellate review for restitution as a condition of probation is abuse of discretion.

While "[t]he sentencing judge has considerable discretion in determining the amount of restitution under K.S.A. 21-4610(d)(1)," (emphasis added) State v. Applegate, 266 Kan. 1072, Syl. s 3, 976 P.2d 936 (1999), "the terms of K.S.A. [2001] Supp. 21-4610(d) specific to restitution controls its imposition as a condition of probation." State v. Hymer, 271 Kan. 716, 723-24, 26 P.3d 63 (2001). Although K.S.A. 2001 Supp. 21-4610(d)(1) makes restitution a mandatory condition of probation, the statute also acts to restrict the scope of permissible restitution orders and limits the otherwise broad grant of authority given to the sentencing court. See Hymer, 271 Kan. at 724; State v. Yost, 232 Kan. 370, 374-75, 654 P.2d 458 (1982),overruled in part on other grounds State v. Haines, 238 Kan. 478, 712 P.2d 1211,

cert. denied 479 U.S. 837 (1986).

The amount of restitution and manner in which it is made to the aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. Casto, 22 Kan. App.2d at 153-54. "Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure." 22 Kan. App.2d at 154. Because K.S.A. 2001 Supp. 21-4610(d)(1) limits the imposition of restitution to "damage or loss caused by the defendant's crime," the question of whether an item claimed by the aggrieved party as loss qualifies for inclusion in a restitution order because it was caused by the defendant's offense is a question of law. See Walker v. State, 26 Kan. App.2d 410, 411, 988 P.2d 283, rev. denied 268 Kan. 896 (1999). An appellate court's review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).

I. RESTITUTION IN EXCESS OF FAIR MARKET VALUE

Hunziker's first assertion is that the district court erred by requiring him to pay a total restitution amount in excess of the market value of the damaged property.

"A sentencing court has substantial discretion when ordering the amount of restitution. [Citation omitted.] Moreover, the method of determining the amount of restitution is a matter within the discretion of the trial court. [Citation omitted.]" Casto, 22 Kan. App.2d at 153.

"Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court." Applegate, 266 Kan. at 1079, citing State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998), and Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993).

Hunziker argues that under Casto, 22 Kan. App.2d at 154, "a victim of a property crime is entitled to restitution only up to the amount of...