State v. McCain
| Decision Date | 23 November 2022 |
| Docket Number | 123,044 |
| Parties | State of Kansas, Appellee, v. Shelby L. McCain, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Affirmed in part, vacated in part, and remanded with directions.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before CLINE, P.J., ATCHESON and COBLE, JJ.
As part of a plea agreement, Shelby L. McCain pled guilty to felony theft. The parties agreed to, and the district court granted a 60-month term of probation, despite that the statutorily presumptive sentence was 24 months. The parties also agreed to restitution, with part of the amount determined at a later hearing. On appeal, McCain makes multiple claims. Her first issue persuasively argues the district court imposed an illegal sentence because the district court lacked authority to impose the extended probation term under the statute identified by the district court, K.S.A. 2018 Supp 21-6608(c)(5). McCain also argues the district court's restitution plan was unworkable, but she did not object to the plan when the district court imposed it, and this is fatal to her claim. McCain challenges two statutory schemes-the revised Kansas Sentencing Guidelines Act (KSGA) and the restitution statutes-as being unconstitutional. But our Supreme Court has held contrary to McCain's constitutionality challenges and this court is duty-bound to follow Kansas Supreme Court precedent. The district court's imposition of restitution is affirmed, but McCain's probation sentence is vacated, and this case is remanded to the district court for resentencing.
The State alleged that McCain was falsifying freight contracts at her workplace, which led to her employer, King of Freight, overpaying McCain by $37,031 more in commissions than she had earned. The State charged McCain with one count of unlawful acts concerning computers, in violation of K.S.A. 2018 Supp. 21-5839(a)(2), and one count of felony theft, in violation of K.S.A. 2018 Supp. 21-5801(a)(1).
The parties reached an agreement, and in line with that plea agreement, McCain pled guilty to felony theft and the remaining computer charge was dismissed. Under the plea agreement, the parties agreed to recommend the mid-number sentence in the appropriate sentencing guidelines grid box, but also agreed that probation was presumed. McCain also consented to pay two forms of restitution, including $18,000 to Logistics Dynamics, Inc. Charges related to Logistics Dynamics were not pursued because of the plea agreement and McCain's agreement to pay restitution. She also agreed to pay "legally justifiable restitution to King of Freight," an amount which was to be officially determined at a restitution hearing. The plea agreement stated the State intended to seek $37,031-the amount McCain was overpaid-in restitution to King of Freight. The plea agreement also contemplated that the parties recommend McCain be placed on an extended period of probation of 60 months, under K.S.A. 2018 Supp. 21-6608, to allow her time to make full restitution.
The district court held the restitution hearing before sentencing. The general manager of King of Freight testified the company lost $41,671.37 due to McCain's actions. After arguments from counsel, the district court ordered McCain to pay restitution in the amount of $41,671.37 to King of Freight and $18,000 to Logistics Dynamics.
Before establishing a payment plan for restitution, the district court questioned McCain and determined although she was unemployed at the time of the hearing, she anticipated working after receiving a surgical procedure for her eyes. McCain informed the district court that she and her four-year-old daughter lived with McCain's mother, and McCain did not have any bills. The district court also asked about McCain's drug use, which she denied despite two positive tests for methamphetamine.
The district court ultimately found that immediate payment of the restitution in full "would be unreasonable due to the amount," and ordered McCain to pay restitution in 60 installments over her 60-month probation. Although each installment "would normally break down to almost $1,000 a month," the district court found this payment "doesn't seem immediately feasible since [McCain was] not currently working." The district court ordered McCain to secure employment within two months, and pay $500 per month toward restitution, reasoning that she expected to start working, and "for someone with, apparently, no bills, living with their mother, [such payments] should be feasible ...."
After determining restitution, the district court sentenced McCain to the recommended 16 months' imprisonment but granted probation "for a term of 60 months, as agreed to in the plea agreement." The district court held McCain's probation period was extended beyond the statutory length based on the agreement of the parties and McCain's welfare because it was "highly unlikely that restitution could be repaid within the statutory probation period." If the 60-month probation period was invalidated, the district court announced an alternative ruling, a "secondary order" of 24 months' probation subject to extension for paying restitution "in the event it was found not to be appropriate to place her on the 60 months" probation.
McCain appeals.
McCain presents multiple issues on appeal. She first claims the district court erred in imposing a 60-month term of probation, creating an illegal sentence. She then argues the district court erred by finding the $500 monthly restitution payments workable. Finally, she makes two constitutional arguments. First, she contends the judicial prior conviction findings that elevated her sentence violated section 5 of the Kansas Constitution Bill of Rights, and she also claims the Kansas criminal restitution scheme is unconstitutional. We address each issue in turn.
The District Court Erred by Imposing the 60-Month Term of Probation.
For the first time on appeal, McCain argues the district court imposed an illegal sentence when it extended her probation beyond the statutorily presumptive term. First, she argues the district court erred in extending her probation under K.S.A. 2018 Supp. 21-6608(c)(5) because that statutory provision is inapplicable based on the severity level of her crime of conviction. Second, while acknowledging the district court could have jurisdiction to extend her probation term pursuant to a different statutory provision- K.S.A. 2018 Supp. 21-6608(c)(1)(B)-McCain argues that her extended probation term was an "upward durational departure" that violated her jury trial rights under Apprendi v. New Jersey, 530 U.S. 466, 475-76, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Put simply, McCain claims she was sentenced illegally based on both statutory and constitutional grounds.
In response, the State argues McCain did not preserve this claim for appellate review and she waived her right to challenge her sentence on appeal. But if we consider McCain's claim, the State alternatively argues this court is duty-bound to follow Kansas Supreme Court precedent, which permits upward durational departures for probation if the district court makes findings of substantial and compelling reasons to justify its departure from the presumptive statutory period.
Whether a sentence is illegal is a question of law over which appellate courts have unlimited review. State v Sartin, 310 Kan. 367, 369, 446 P.3d 1068 (2019). To the extent that this issue requires statutory interpretation, that is also a question of law over which we have unlimited review. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019). And whether an issue is preserved for appellate review is a question of law with an unlimited standard of review. See State v. Campbell, 308 Kan. 763, 770, 423 P.3d 539 (2018).
While McCain does not identify which of the three options apply here, she argues her sentence was illegal because it does not conform to the applicable provisions of K.S.A. 2018 Supp. 21-6608. Thus, we may appropriately consider her statutory illegal sentence claim under the second option identified in K.S.A. 2021 Supp. 22-3504(c)(1), as a sentence not conforming to the applicable statute.
The State is correct that issues not raised before the district court generally cannot be raised on appeal. See State v Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). McCain concedes that she did not challenge her probation sentence below but contends this court may reach her claim because she is now serving an illegal sentence, which can be corrected at any time while she is serving the illegal sentence under K.S.A. 2021 Supp. 22-3504. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036...
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