State v. Rudy

• Decision Date: 25 October 2013
• Docket Number: No. 108,986.,108,986.
• Parties: STATE of Kansas, Appellee, v. Jason RUDY, Appellant.
• Court: Kansas Court of Appeals

311 P.3d 1167

STATE of Kansas, Appellee,

v.Jason RUDY, Appellant.

No. 108,986.

Court of Appeals of Kansas.

Oct. 25, 2013.

Appeal from Ford District Court; Van Z. Hampton, Judge.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

J. Scott James, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., McANANY and POWELL, JJ.

MEMORANDUM OPINION

POWELL, J.

In this appeal, we are faced with the uncommon circumstance of both the defendant, Jason Rudy, and the State contending that the district court erred by ordering restitution without holding an evidentiary hearing. Rudy also appeals the district court's restitution order requiring him to pay $25,000 to the Kansas Crime Victims Compensation Board (KCVCB). We agree that Rudy was entitled to an evidentiary hearing on the amount of restitution, and because we find that the KCVCB was a proper party to receive restitution payments, we affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural History

On October 14, 2010, Russell Sheldon spoke to law enforcement about burglaries in which he and an acquaintance were involved. A week later, while Allan Gleason was working on his vehicle at Sheldon's residence, Sheldon walked outside and noticed Rudy talking to Gleason. Sheldon and Rudy had had a previous confrontation at Sheldon's residence, during which Sheldon told Rudy to get off his property. Sheldon again told Rudy to get off his property, whereupon Rudy called Sheldon a “snitch,” walked towards Sheldon and punched him, breaking Sheldon's jaw. As a result, Sheldon received medical treatment.

The State charged Rudy with aggravated battery and aggravated intimidation of a witness and later added a charge of criminal trespass. Over a year later, Rudy and the State entered into a written plea agreement in which Rudy agreed to plead guilty or no contest to aggravated intimidation of a witness. Rudy also agreed to pay “any restitution”; in return the State agreed to dismiss the aggravated battery and criminal trespass counts.

On May 3, 2012, the court sentenced Rudy to 32 months' imprisonment with 24 months' postrelease supervision. The State requested $25,000 in restitution for KCVCB, which had compensated the medical providers who treated Sheldon's broken jaw. The court found KCVCB was entitled to restitution but deferred ruling on the amount.

On June 27, 2012, Rudy filed a motion challenging the nature and amount of restitution, arguing that the KCVCB did not have subrogation rights. The State responded to the motion, contending that the KCVCB did have statutory subrogation rights granted by K.S.A. 74–7301 et seq. On August 7, 2012, the court heard arguments regarding restitution, but the parties did not offer any evidence into the record. The State requested and the court awarded $25,000 in restitution payable to the KCVCB.

Rudy timely appeals.

Did the District Court Err in Ordering Restitution Without Holding an Evidentiary Hearing?

Rudy and the State both claim the district court erred in ordering restitution without holding an evidentiary hearing.

Standard of Review

This court reviews an order of restitution for an abuse of discretion. State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002). An abuse of discretion occurs if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). The sentencing court's failure to exercise its discretionary authority constitutes an abuse of discretion. See State v. Anderson, 40 Kan.App.2d 403, 407–08, 192 P.3d 673 (2008). The party asserting an abuse of discretion bears the burden of showing such abuse. State v. Mortis, 277 Kan. 267, 280, 83 P .3d 1216 (2004).

Analysis

K.S.A.2010 Supp. 22–3424(d) governs restitution in this case and authorizes restitution upon a finding of guilt: “[T]he court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as established by the court.” Rudy did not waive his right to an evidentiary hearing; to the contrary, Rudy indicated he wanted to go forward with the hearing.

The district court has substantial discretion in determining the amount of restitution, but proof of a victim's damage or loss in a criminal case does not entail the same rigidity with respect to proof of value in a civil suit. Hunziker, 274 Kan. at 663. Nonetheless, the district court's determination of restitution must be based on reliable evidence yielding a “ ‘defensible restitution figure.’ “ 274 Kan. at 660.

The district court did hold a restitution hearing, during which the judge heard argument from counsel and statements from Rudy, but the parties did not admit any evidence. At the hearing, the following exchange took place:

“THE COURT: Okay. It appears to me that Mr. Rudy may be exposing himself to a higher judgment if he goes through the process. I really think the question needs to be addressed of whether or not the Crime Victims Compensation Board is entitled to reimbursement or subrogation for payments made. And, that it appears to me, again, that the amount could be greater.

“I think what may be to Mr. Rudy's benefit is if I would just simply establish the amount paid by Crime Victim Compensation Board as the amount due, and let you appeal it.

“MR. ANTOSH: Without waiving any of Mr. Rudy's rights to appeal, Your Honor, I believe I want to say, without getting this back into the same downward spiral, I think he waived his right of appeal within the context of our plea agreement.

“Mr. Rudy has, though, indicated that now hearing the State's position, as well as our position, he's indicated that he believes that it's in his interest to waive the challenge to the restitution at this point. The amount requested was $25,000.00. I'm not saying he can live with it, but he'll deal with it.

“Is that your position, Mr. Rudy?

“THE DEFENDANT: Can he do the 20,000 that he said?

“MR. ANTOSH: He is not inclined at this point.

“THE DEFENDANT: I'm sorry, guys.”

“MR. JAMES: I don't have any way to justify that to the Crimes Victims, to tell them, hey, you know, I was in court and the Defendant wanted to go lower, so I just told him, sorry, you guys are out $5,000.00. You know, I can't go to them and tell them that, so ...

“THE COURT: I haven't seen all the claims, but I remember hearing, at one point, there was a discussion of medical expenses approaching $48,000.00. I don't know if that's something that the State added up.

“MR. ANTOSH: I want say, Your Honor, I believe it was—there was some testimony that was presented at the last hearing was that K .C.V.C.B. gets a 20 percent discount. Now, of course, a 20 percent discount would be a numerical miracle if that came out to 25,000. But, I think that's their standard discount. I don't know if they did better this time around.

“THE COURT: Okay. Do you have a reference to a total amount, Mr. James?

“MR. JAMES: All I have is the statement from Crime Victims computation. I'm kind of at a disadvantage today, because Mrs. Askew is the one that went over all these billings, and she's not here today. I know she has copies of all the bills in her office. I did not bring them with me. I don't appear to have them all in my file. So, I might be able to retrieve those after a recess, but I don't have them right now.

“THE COURT: Okay. I'm going to make the order, the final order, that the amount claimed by the Kansas Crime Victim Compensation Board is the amount of restitution due.

“And, I also find that the Defendant's appeal of that decision would not be a violation of the plea agreement.”

Here, the district court based the restitution order solely on the State's statements. However, statements of counsel are not considered evidence. State v. Cole, 37 Kan.App.2d 633, 637, 155 P.3d 739 (2007) (trial court order of restitution without any evidence to support the amount constitutes abuse of discretion). The district court abused its discretion by entering a restitution order relying solely on the State's statements without any evidentiary support. See State v. Davis, No. 101,961, 2010 WL 3731285, at *2 (Kan.App.2010) (unpublished opinion) (defendant was entitled to hearing to examine evidence against him and to know the basis for restitution).

Accordingly, the district court's restitution order must be reversed and remanded for an evidentiary hearing.

Did the District Court Err in Ordering Restitution to the KCVCB?

Next, Rudy contends that the district court had no authority to order restitution to the KCVCB because the KCVCB is not an “aggrieved party” within the meaning of the statute. However, the State maintains that KCVCB has subrogation rights pursuant to K.S.A. 74–7312.

Standard of Review

Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). In Kansas, restitution is governed by two statutes: K.S.A.2010 Supp. 21–4603d(b)(1) and K.S.A. 21–4610(d)(1).

K.S.A.2010 Supp. 21–4603d(b)(1) states:

“In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which 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.”

K.S.A. 21–4610(d)(1) states:

“(d) In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:

(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court...