State v. Roberts
| Decision Date | 21 February 2020 |
| Docket Number | No. 120,377,120,377 |
| Citation | 57 Kan.App.2d 836,461 P.3d 77 |
| Parties | STATE of Kansas, Appellee, v. Taylor R. ROBERTS, Appellant. |
| Court | Kansas Court of Appeals |
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Hill and Gardner, JJ.
In May 2018, Taylor R. Roberts pleaded guilty to eight counts of burglary and two counts of theft. The district court sentenced her to 42 months in prison, stayed the sentence, and then granted her 24 months of probation.
As part of her plea agreement, Roberts agreed to pay restitution. After a restitution hearing, the district court ordered Roberts to pay $50,407.86 in restitution, jointly and severally with her codefendant. The journal entry of Roberts' sentencing orders her to pay $50,407.86 to the district court, lists the recipients and amounts the district court shall then pay out, and orders Roberts jointly and severally liable for all restitution with her codefendant. One special condition of Roberts' probation is that she "pay restitution as directed." But the district court did not tell Roberts any manner of payment or establish a payment plan for that restitution.
Roberts timely appeals, claiming that the district court's failure to establish a payment plan for her restitution renders her sentence illegal. Based on the clear statutory language of K.S.A. 2018 Supp. 21-6604(b)(2), we agree and remand for correction of her sentence.
The sole issue on appeal is whether Roberts' sentence is illegal because the district court did not order a payment plan for her restitution. She interprets K.S.A. 2018 Supp. 21-6604(b) to require a district court set a payment plan when ordering restitution, rather than simply ordering a total restitution amount. She asks this court to vacate her restitution order and remand for resentencing. Because she asks us to interpret a sentencing statute and presents a question of law, our standard of review is unlimited. State v. Warren , 307 Kan. 609, 612, 412 P.3d 993 (2018).
Under K.S.A. 2018 Supp. 22-3504(3), an illegal sentence includes a sentence that "does not conform to the applicable statutory provision, either in character or punishment." Roberts invokes this provision.
The touchstone of statutory interpretation is the intent of the Legislature as expressed in the statute. See State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). We must therefore first try to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute not readily found in its words. 303 Kan. at 813, 368 P.3d 331. Additionally, when examining statutes to determine legislative intent, we must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015).
Roberts argues her restitution order at sentencing was illegal because it did not conform to K.S.A. 2018 Supp. 21-6604(b) —the statute that governs a court's order of restitution. She contends the plain language of the statute requires the district court to establish a payment plan when it orders restitution:
Roberts' argument is threefold. First, she emphasizes "plan of restitution" in K.S.A. 2018 Supp. 21-6604(b)(1). An order of restitution is not a plan of restitution. She argues that for a district court to evaluate whether a "plan of restitution" is unworkable, there must first be a plan to evaluate. Thus, instead of simply ordering a total restitution amount, the district court has to establish some payment plan with any restitution order. Because the district court failed to set a payment plan, its restitution order was illegal. This argument has some logical appeal.
But we find Roberts' second argument more persuasive. She focuses on the plain language of K.S.A. 2018 Supp. 21-6604(b)(2) which refers to "the plan established by the court for payment of restitution." That subsection applies only when a defendant, after 60 days from the date the court orders restitution, "is found to be in noncompliance with the plan established by the court for payment of restitution." So that subsection does not apply to Roberts, who is not alleged to be noncompliant. Yet we agree that the subsection's language clearly shows legislative intent that the court establish a plan for payment of restitution. The language of subsection (b)(2) () is distinctively different from the language the Legislature used in subsection (b)(1) () (an "order ... to pay restitution"). We presume that the Legislature intends a different meaning when it uses different language in the same connection within a statute. Boatright v. Kansas Racing Comm'n , 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 (1992). This language assumes that the district court has established a plan "for payment of restitution" and looks for compliance within 60 days after the date the court orders restitution.
A court's order of an amount of restitution does not constitute a "plan established by the court for payment of restitution." For any payment plan of restitution to be effective, and for a court to determine noncompliance, as contemplated in K.S.A. 2018 Supp. 21-6604(b)(2), the court needs to establish a payment plan when it orders restitution. And defendants need to know at the time of sentencing what they need to do to comply with the restitution ordered as part of their sentence—is the full amount due immediately, is it payable in monthly installments, is it payable in kind, and so on.
Third, Roberts argues that K.S.A. 2018 Supp. 22-3717(n) supports her interpretation.
"If the court which sentenced an inmate specified at the time of sentencing the amount and the recipient of any restitution ordered as a condition of parole or postrelease supervision, the prisoner review board shall order as a condition of parole or postrelease supervision that the inmate pay restitution in the amount and manner provided in the journal entry unless the board finds compelling circumstances which would render a plan of restitution unworkable." (Emphasis added.) K.S.A. 2018 Supp. 22-3717(n).
Roberts focuses on the requirement that the Kansas Prisoner Review Board order payment of restitution "in the amount and manner provided in the journal entry." K.S.A. 2018 Supp. 22-3717(n) (Emphasis added.).
Unless a district court orders otherwise at sentencing, an imprisoned defendant begins to make restitution payments after being released from prison. State v. Alderson , 299 Kan. 148, 151, 322 P.3d 364 (2014). K.S.A. 2018 Supp. 22-3717(n) applies at that time. This statute grants the Kansas Prisoner Review Board discretion to decrease or eliminate the amount of restitution if it finds "compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2018 Supp. 22-3717(n) ; see also K.S.A. 2018 Supp. 22-3718 ().
This statute does not apply here because the district court placed Roberts on probation and stayed her sentencing of imprisonment. Yet Roberts shows that the clear language of this statute refers not only to the amount of restitution but also to "the manner" for the inmate to pay restitution provided in the journal entry. Roberts suggests that "the manner" must be a payment plan. But "the manner" could merely refer to the requirement that the defendant pay "to the district court," as ordered in Roberts' journal entry. Nothing suggests that "the manner" necessarily refers to a "plan established by the court for payment of restitution," as does K.S.A. 2018 Supp. 21-6604(b)(2). We find little support for Roberts' position in K.S.A. 2018 Supp. 22-3717(n).
The State offers no other meaning for the statutory language Roberts relies on. In fact, it ignores the plain language of subsection (b)(2) which refers to "the plan established by the court for payment of restitution." Instead, it offers broader responses.
First, the State contends that had the Legislature intended for the court to establish a payment plan, it would have said so specifically, as it did in the Board of Indigents' Defense Services provision in K.S.A. 2018 Supp. 21-6604(i). That statute requires the court to order the defendant to reimburse the state general fund for expenditures by the Board of Indigents' Defense Services to provide counsel. It then specifies what the...
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...August of 2019 required the district court to order a restitution payment plan. See K.S.A. 2019 Supp. 21-6604(b) ; State v. Roberts , 57 Kan. App. 2d 836, 461 P.3d 77 (2020), judgment summarily vacated and remanded by State v. Roberts , No. 120,377, 2020 WL 8269363 (order filed September 29......
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