State v. Robison

• Decision Date: 15 October 2021
• Docket Number: No. 120,903,120,903
• Parties: STATE of Kansas, Appellee, v. Robert James ROBISON III, Appellant.
• Court: Kansas Supreme Court

496 P.3d 892

STATE of Kansas, Appellee,

v.Robert James ROBISON III, Appellant.

No. 120,903

Supreme Court of Kansas.

Opinion filed October 15, 2021.

Caroline Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Amy L. Aranda, first assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Robert James Robison III petitions this court for review of two intertwined issues: Whether the order of restitution in his case violates either section 5 of the Kansas Constitution Bill of Rights or the Sixth Amendment of the United States Constitution, if not both. This court granted review on both issues. The issues raised are identical to those raised in State v. Arnett , 314 Kan. ––––, ––– P.3d ––––, 2021 WL 4806611 (2021) (No. 112,572, this day decided). Our analysis in this case will take reference liberally from that opinion.

FACTS AND PROCEDURAL BACKGROUND

The relevant facts are brief and Robison's Court of Appeals decision covers them thoroughly. They are:

"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." State v. Robison , 58 Kan. App. 2d 380, 381-82, 469 P.3d 83 (2020).

On appeal, Robison argued three issues: (1) 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. (2) 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. (3) 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.

The panel found against Robison on each of these three issues and affirmed the district court's restitution order. 58 Kan. App. 2d at 381, 469 P.3d 83. Robison petitioned this court for review of only the first two issues, which this court granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). After the court heard oral arguments, Robison filed a Motion to Supplement Oral Argument, to which the State did not file a response. The motion is granted. The court has considered the arguments and authorities cited in the motion.

Preservation

Robison did not raise these issues before the district court. Generally, a constitutional issue not raised before the district court is considered abandoned. But this court can review issues presented on appeal 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's judgment is correct for the wrong reason. State v. Perkins , 310 Kan. 764, 768, 449 P.3d 756 (2019). But " ‘[t]he decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, [this court has] no obligation to do so.’ [Citations omitted.]" State v. Gray , 311 Kan. 164, 170, 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). We elect to reach both questions under the second exception.

Analysis

As in Arnett , our analysis first looks at the statutes which make up the "restitution scheme" being challenged by Robison. K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order the defendant to pay restitution as part of the sentence. The statute dictates 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."

In the same way, K.S.A. 2017 Supp. 21-6607(c)(2) gives the district court the authority to order restitution payments as a condition of probation. Based on the clear language of the statutes, " ‘restitution for a victim's damages or loss depends on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages.’ [Citations omitted.]" State v. Alcala , 301 Kan. 832, 837, 348 P.3d 570 (2015).

Criminal restitution does not violate the Sixth Amendment to the United States Constitution.

Standard of review

Determining a statute's constitutionality is a question of law subject to unlimited review. State v. Soto , 299 Kan. 102, 121, 322 P.3d 334 (2014).

Discussion

We begin with Robison's argument that the restitution statutes in question offend his right to a jury trial under the Sixth Amendment to the United States Constitution.

The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. The Supreme Court of the United States has established that this right to a jury covers any fact which increases the maximum penalty for a crime—other than a prior conviction—and such facts must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v. New Jersey , 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court further established that any facts which increase a mandatory minimum penalty must also be decided by a jury. See Alleyne v. United States , 570 U.S. 99, 102, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The reasoning is that when "a judge inflicts punishment that the jury's verdict alone does not allow," the judge has exceeded his authority. Blakely v. Washington , 542 U.S. 296, 304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Most federal courts confronted with the question have concluded restitution does not run afoul of the Sixth Amendment. Largely, these courts have followed one of two analytical paths to conclude either that criminal restitution is not punishment or to find that restitution statutes do not specify a maximum award. See United States v. Bonner , 522 F.3d 804, 807 (7th Cir. 2008) (restitution is not a criminal punishment); see also United States v. Sawyer , 825 F.3d 287, 297 (6th Cir. 2016) (restitution is considered punishment but is not affected by Apprendi because statutes do not specify a statutory maximum). Sometimes the courts have taken a more hybrid approach. See United States v. Green , 722 F.3d 1146, 1150 (9th Cir. 2013) (restitution is only punishment in some contexts but is "not clearly" punishment covered by Apprendi ); United States v. Leahy , 438 F.3d 328, 338 (3d Cir. 2006) (Although restitution is criminal punishment, its essence is a restorative remedy that compensates victims and does not make a defendant's punishment more severe.).

As our own Court of Appeals observed below, at least 11 of 13 federal United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution, not to mention the many state courts which have followed suit. State v. Robison , 58 Kan. App. 2d 380,...