State v. Robison
| Decision Date | 26 June 2020 |
| Docket Number | No. 120,903,120,903 |
| Citation | 469 P.3d 83 |
| Parties | STATE of Kansas, Appellee, v. Robert James ROBISON III, Appellant. |
| Court | Kansas Court of Appeals |
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Standridge, P.J., Leben and Bruns, JJ.
Robert James Robison, III pled no contest to one count of battery of a law enforcement officer. As part of his sentence, the district court required Robison to pay $2,648.56 in restitution to reimburse a workers compensation insurance carrier that had paid the medical expenses of the law enforcement officer injured as a result of the battery. On appeal, Robison contends that the order of restitution violates both Section 5 of the Kansas Constitution Bill of Rights and the Sixth Amendment of the United States Constitution. In addition, Robison contends that the district court erred in awarding restitution to be paid to an insurance carrier. Finding no error, we affirm the district court's order of restitution.
On January 3, 2018, the State charged Robison with two counts of battery of a law enforcement officer in violation of K.S.A. 2017 Supp. 21-5413(c)(3)(D). The charges stemmed from an incident at the Lyon County Jail in which Robison hit Officer Zachary Nance and Corporal Bobby Cutright several times. Corporal Cutright suffered an injury to his eye and a bite on his arm. Following the incident, he went to Newman Regional Health where he received treatment. Lyon County's workers compensation insurance carrier subsequently paid Corporal Cutright's medical bills.
Prior to trial, the parties entered into a plea agreement in which Robison agreed to plead no contest to one count of battery of a law enforcement officer. In exchange, the State agreed to dismiss the second count and further agreed not to request a fine. On March 20, 2018, the district court accepted Robison's no-contest plea and found him guilty of a single count of battery of a law enforcement officer arising out of the attack on Corporal Cutright. A few months later, the district court sentenced Robison to 32 months' imprisonment and 24 months' post-release supervision. Complying with the terms of the plea agreement, the district court did not impose a fine. However, the district court agreed to consider the State's request for restitution and continued the resolution of the request until a later date.
At a restitution hearing held on August 21, 2018, the State requested that Robison pay $2,648.56 in restitution to reimburse the workers compensation insurance carrier that paid Corporal Cutright's medical bills arising out of the battery. A hospital employee testified about the medical bills and verified that they had been paid by the insurance carrier. Robison's counsel did not dispute the amount of the medical bills or that they arose out of the attack on Corporal Cutright. Instead, defense counsel argued that the workers compensation insurance carrier was not entitled to restitution and had not requested reimbursement.
After considering the evidence and the arguments of counsel, the district court found that the medical bills incurred by Corporal Cutright were caused by Robison's crime and that Lyon County's insurance carrier had paid the medical expenses on the officer's behalf. Accordingly, the district court ordered Robison to pay restitution in the amount of $2,648.56 to reimburse the workers compensation insurance carrier for the medical expenses it had paid.
On appeal, Robison raises three issues. First, Robison contends that the Kansas restitution statutes violate Section 5 of the Kansas Constitution Bill of Rights because they encroach upon a criminal defendant's common law right to a civil jury trial on damages caused by the defendant's crime. Second, Robison contends that his right to a jury trial on the issue of restitution under the Sixth Amendment of the United States Constitution was violated because the statutes allowed the court to make a finding of fact that increased the penalty for his crime beyond the prescribed statutory maximum. Third, Robison contends that the statutes governing restitution preclude district courts from awarding restitution to an insurance carrier that has paid the victim's medical expenses caused by a criminal defendant. In response, the State denies each of these contentions. Specifically, the State maintains that the Kansas restitution statutes are constitutional—both under the Kansas Constitution and United States Constitution—and requests that we affirm the district court's restitution order.
At the outset, we must determine whether Robison's constitutional claims are properly before this court. The State argues that these issues were not properly preserved at the district court level and we should not consider them. It is undisputed that Robison asserts violations of the Kansas Constitution and the United States Constitution for the first time on appeal. Whether an issue has been properly preserved for appeal is a question of law that we review de novo.
State v. Haberlein , 296 Kan. 195, 203, 290 P.3d 640 (2012).
Generally, a constitutional issue not raised before the district court is considered to be waived or abandoned. Nevertheless, we can review issues presented on appeal in cases where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. State v. Perkins , 310 Kan. 764, 768, 449 P.3d 756 (2019). State v. Gray , 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020).
The right to a jury trial is a fundamental right under both Section 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Rizo , 304 Kan. 974, 979-80, 377 P.3d 419 (2016). Robison argues that his fundamental constitutional right to a jury trial was violated when the district court decided the issue of restitution. Although Robison did not raise these issues before the district court, we may consider them because they potentially implicate a claim to the fundamental right to a trial by a jury under the Kansas Constitution and the United States Constitution. See State v. Beaman , 295 Kan. 853, 858, 286 P.3d 876 (2012). Accordingly, we find that a decision on the merits would serve the ends of justice.
The district court's authority to order restitution in a criminal case is established by statute. Robison contends that these statutes violate Section 5 of the Kansas Constitution Bill of Rights, which provides that "[t]he right of trial by jury shall be inviolate." So we begin our analysis by looking at the statutes challenged by Robison.
K.S.A. 2017 Supp. 21-6604(b)(1) —which was applied in this case—grants a district court the authority to order the defendant to pay restitution as part of the sentence. The statute provides that the restitution amount "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." Similarly, K.S.A. 2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a condition of probation. Based on the clear and unambiguous language of the statutes, State v. Alcala , 301 Kan. 832, 837, 348 P.3d 570 (2015).
Robison claims K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) violate Section 5 of the Kansas Constitution Bill of Rights because they deprive him of his right to have a civil jury determine the amount of damages or loss caused by his crimes. Whether the criminal restitution statutes violate Section 5 of the Kansas Constitution is a legal question. Although we usually must presume that a statute is constitutional and must look for any reasonable way to interpret the statute to avoid a violation, this presumption does not apply to claims involving fundamental rights. See Hilburn v. Enerpipe Ltd. , 309 Kan. 1127, 1132-33, 442 P.3d 509 (2019) (plurality opinion). Even so, we do not find Robison's arguments to be persuasive.
The parties agree that Section 5 of the Kansas Constitution Bill of Rights preserves the common law right to a jury trial as it existed at the time of its adoption. The Kansas Constitution was approved by the delegates to the Wyandotte Constitutional Convention on July 29, 1859. A few months later, on October 4, 1859, the Kansas Constitution—also known as the Wyandotte Constitution—was overwhelmingly approved by popular vote. Consequently, Section 5 of the Kansas Constitution only applies if it can be shown that territorial juries would have decided the issue of restitution in 1859. See Hilburn , 309 Kan. at 1134, 442 P.3d 509.
Robison offers several arguments in an attempt to show that the criminal restitution statutes implicate the right to a jury trial under Section 5 of the Kansas Constitution. He first analogizes criminal restitution to causation and civil damages in a tort action. Robison accurately points out that Kansas juries decided the amount of civil damages in tort prior to statehood. See Kan. Terr. Stat. 1859, ch. 25, § 274. From there, he springs to the conclusion that criminal restitution should be treated like a civil remedy because such orders can be enforced like civil judgments...
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