State v. Shank
| Citation | 369 P.3d 322 |
| Decision Date | 15 April 2016 |
| Docket Number | No. 112,982.,112,982. |
| Parties | STATE of Kansas, Appellee, v. William Andrew SHANK, Appellant. |
| Court | United States State Supreme Court of Kansas |
Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.
Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.
After accepting William Shank's guilty pleas, the district court ultimately sentenced him to life with a mandatory minimum of 25 years for first-degree murder, 59 months for aggravated arson, and 32 months for aggravated burglary. It ordered all sentences to run consecutively and imposed $108,427.65 in restitution.
Shank argues the district court abused its discretion in ordering his sentences to run consecutively instead of concurrently and in imposing a restitution plan that is "unworkable." Because there was no abuse of discretion, we affirm.
The State charged William Shank with first-degree murder for the premeditated killing of Teri Morris; aggravated arson for setting afire the residence where she was killed; and aggravated burglary for entering the residence with the intent to kill her. Shank pled guilty to all counts.
At Shank's plea hearing, the State proffered the evidence it would have presented at trial. In 2012, Shank and Morris lived together in Garden City. Morris later moved to Colby where she eventually gave birth to their daughter, A.J.S. Later that year, Morris and A.J.S. moved into Russell Rodenbeck's house in Colby.
Early one morning in February 2013, Morris was sleeping in her bed while A.J.S. slept in her crib. While responding to a report of a fire at the house later that morning, firefighters found Morris' dead body in the living room. An autopsy revealed she was stabbed and slashed 27 times—and suffered blunt force trauma to her head
and thermal burns to her naked body. The soot in her mouth and nose indicated she was alive when the fire was set.
Several hours later Shank was found with A.J.S. about 100 miles from Colby. He had cuts on his body, Morris' blood and DNA on his shirt, and Morris' blood on his right ear. Police found gloves covered with Morris' and Shank's blood in a trash bag at Shank's home as well as Morris' blood on the steering wheel of Shank's vehicle and on a lighter inside. Shank's partial DNA was also found on the door knob of Rodenbeck's house. His computer revealed internet searches explaining how to pick a lock and break into a residence.
At the sentencing hearing, the State requested Shank serve sentences for each count consecutively while Shank requested them to run concurrently. Defense counsel did not object to the proposed plan for restitution of damages. When asked for Shank's position on the State's request for reimbursing the state general fund for expenditures made by the Board of Indigent Defense Services (BIDS), counsel responded Shank had no resources or ability to reimburse.
The court sentenced Shank to consecutive terms of life with a mandatory minimum of 25 years for first-degree murder, 59 months for aggravated arson, and 32 months for aggravated burglary. The court also assessed $108,427.65 in restitution, primarily as compensation for Rodenbeck's fire-damaged house.
Jurisdiction is proper under K.S.A. 2015 Supp. 22–3601(b)(3), (4)
(maximum sentence of life imprisonment imposed for an off-grid crime).
More facts will be added as necessary to the analysis.
Shank argues the district court erred in imposing consecutive sentences. The State responds that this decision was well within the court's discretion.
Standard of review
provides that, absent certain circumstances, "[t]he sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases." This statute does not list specific factors for consideration but states the judge "may consider the need to impose an overall sentence that is proportionate to the harm and culpability" associated with the crimes. K.S.A. 2015 Supp. 21–6819(b) ; State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).
This court's abuse of discretion standard is well-established:
" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011)
, cert. denied ––– U.S. ––––, 132 S.Ct. 1594 (2012)." State v. Wilson, 301 Kan. at 405, 343 P.3d 102.
By simply claiming the district court "needlessly" lengthened Shank's sentence and imposed an "unduly" lengthy sentence, Shank essentially argues no reasonable person would have taken the court's view. The State counters that reasonable persons would agree with the court, e.g., that the crimes were "excessively brutal" and consecutive sentences appropriate.
At the sentencing hearing, the State requested Shank serve time for each crime consecutively "due to the egregiousness of each act." In support, it pointed to the vulnerability of the victim at the time of the aggravated burglary—i.e., Morris was sleeping naked alone in her house with her child. The State also noted the brutal, cruel, and premeditated nature of the murder and further emphasized that Shank set the fire to hide the crime while Morris was still alive. Shank requested concurrent sentences because he was only 25 years old and had entered into the plea to take responsibility for the crime. He did not make any personal statements at the hearing.
In the court's evaluation, it stated that it weighed the statements of counsel, the statements of the victim's family and those made on behalf of Shank, and the presentence investigation report. It also considered the case record which revealed Shank broke into the residence where Morris and her daughter were sleeping. He stabbed Morris 27
times and inflicted blunt force trauma to her body. One of those stab wounds punctured her lung and caused her to suffocate on her own blood. After setting the house on fire while Morris was still alive, Shank left with A.J.S. From this information, the court characterized the crime as excessively brutal.
In applying our test, we are unable to conclude that no reasonable person would take this view. See Wilson, 301 Kan. at 406, 343 P.3d 102
(citing Ward, 292 Kan. at 550, 256 P.3d 801 ). So the court did not abuse its discretion when it concluded consecutive sentences were proportionate to the harm and culpability associated with Shank's convictions. See K.S.A. 2015 Supp. 21–6819(b).
Shank argues the district court erred in imposing restitution. The State counters Shank did not preserve the issue for appeal because he failed to object to the amount of restitution at the sentencing hearing. In the alternative, it contends the court did not abuse its discretion by ordering restitution.
Standard of review
K.S.A. 2015 Supp. 21–6604(b)(1)
provides that the sentencing 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." An appellate court's consideration of a restitution plan can involve three standards of review:
State v. King, 288 Kan. 333, 354–55, 204 P.3d 585 (2009)
(citing State v. Dexter, 276 Kan. 909, 912–13, 80 P.3d 1125 [2003] ).
Shank argues the restitution order is unworkable because he cannot pay the restitution as ordered. Accordingly, abuse of discretion is the proper standard. See State v. Goeller, 276 Kan. 578, 581, 77 P.3d 1272 (2003)
(), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).
Under K.S.A. 2015 Supp. 21–6604(b)(1)
, restitution is the rule and a finding that restitution is unworkable is the exception. State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). When challenging the workability of a restitution order, the defendant carries the burden to come forward with evidence of "compelling circumstances" that render the restitution plan unworkable. 301 Kan. at 840, 348 P.3d 570.
, the defendant did not raise at the district court level the issue of unworkability of the restitution plan "at all." We held:
(Emphasis added.) 288 Kan. at 356, 204 P.3d 585
.
In the instant case, Shank's attorney explicitly stated at the sentencing hearing he and his client did not object to the restitution "as listed":
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