Opinion
No. 107,891.
2013-02-8
STATE of Kansas, Appellee, v. Melissa D. BALL, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
On August 25, 2011, Melissa Ball entered a no contest plea to one count of forgery, a severity level 8, nonperson felony. The tendered factual basis for the plea alleged that Ball had delivered to the El Conquistador Restaurant a letter on a business letterhead of a trucking company, asking that the restaurant set up a charge account for Ball. The letter was purported to have been signed by the business owner who was Ball's father, but in fact had been signed by Ball. The trucking company had ceased doing business more than 2 years earlier. Ball and others ate at the restaurant and charged their meals based on the forged letter. The court accepted the plea, found Ball guilty, and the State dismissed a related felony theft charge.
At sentencing on September 21, 2011, Ball was sentenced to an underlying 10–month prison sentence but was granted probation for 18 months. At the sentencing hearing, the State requested restitution in favor of the victim restaurant in the amount of $150.34. Ball's attorney contested that amount, advising the court that a defense investigator had been told that only $53 was owed. The trial court then set a restitution hearing for October 24, 2011. Ball's attorney advised the court at that time that Ball had been diagnosed with cancer and was scheduled for surgery on the 28th.
At the beginning of the restitution hearing, Ball's attorney advised the trial court that Ball had left a message at his office indicating that she has a serious medical condition—uterine cancer—and had been ordered on bed rest. He requested a short continuance to ensure that she is able to get here. The court noted that Ernie Ortiz from El Conquistador Restaurant was present and ruled: I believe the motion for a continuance will be denied. I have never heard of any bed rest requirement for uterine cancer, nor do I believe in two days it will change substantially. So I think Mr. Ortiz is entitled to have his restitution hearing as much as the defendant.
After hearing testimony from Ortiz and from the defense investigator, Michael Johnson, the court ordered restitution in the amount of $150.34 but made no express findings of fact.
The written journal entry of sentencing and restitution was entered on October 24, 2011, and Ball filed her notice of appeal on October 26, 2011. She alleges that the district court erred in conducting the restitution hearing in her absence and that the court violated her rights by using her prior criminal history in determining her sentence.
The Restitution Hearing.
In her first issue on appeal, Ball alleges that the district court committed reversible error when it held the restitution hearing without her presence. Ball argues that she had both a statutory and a constitutional right to be present and that she did not waive those rights. The State counters that any error was harmless in view of the evidence presented. Ball responds that harmless error analysis cannot be applied to a defendant's absence at a restitution hearing.
The parties agree that the standard of review is de novo: there are no facts in dispute and the appellate court must determine the applicability of statutory and constitutional requirements. See State v. Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).
The parties also agree that the issue is properly before this court even though the defendant did not raise it before the trial court. The issue involves only a question of law arising on proven or admitted facts that is finally determinative of the case, and the issue should be addressed to prevent the denial of a fundamental right. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). In State v. Hall, 44 Kan.App.2d 434, 435, 238 P.3d 744 (2010), this court concluded that the issue of whether the district court erred by holding a restitution hearing without the defendant's presence could be raised for the first time on appeal.
K.S.A. 22–3405(1) provides that [t]he defendant in a felony case shall be present at the arraignment, at every stage of the trial ..., and at the imposition of sentence, except as otherwise provided by law. The imposition of a restitution order is part of the sentence. State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011) (citing K.S.A. 21–4603d[b][1] ). Thus, Ball had a statutory right to be present at the restitution hearing.
A defendant also has the constitutional right to be present at all critical stages of a felony criminal proceeding. State v. Davis, 284 Kan. 728, Syl. ¶ 2, 163 P.3d 1224 (2007). The State makes no suggestion in its brief that a restitution hearing is not a critical stage of the criminal case. Instead, it argues that the failure to have Ball present was harmless error, even under the constitutional error standard.
The Kansas Supreme Court has held that the defendant's right to be present at all critical stages of the criminal trial is subject to harmless error review. E.g., State v. Martinez, 288 Kan. 443, Syl. ¶ 6, 204 P.3d 601 (2009) (ex parte communication between court and jurors); Davis, 284 Kan. 728, Syl ¶ 2 (release of juror after ex parte communication); State v. Engelhardt, 280 Kan. 113, 124–25, 119 P.3d 1148 (2005) (defendant absent from jury's view of crime scene). In Engelhardt, the court noted that the right to be present attaches when the defendant's presence is essential to a fair and just determination of a substantial issue. 280 Kan. 113, at Syl. ¶ 2. Neither side has cited, nor have we discovered, a decision in which either the Kansas Supreme Court or our court has applied harmless error analysis to the failure to have the defendant present at sentencing.
In Hall, 44 Kan.App.2d at 436, this court considered a situation where the district court held the restitution hearing after the defendant had been sent to the Department of Corrections. The defendant was not present, but was represented by counsel. Our court cited the defendant's statutory right to be present at sentencing under K.S.A. 22–3405 and vacated the restitution order and remanded for a new hearing because there was no clear indication in the record that the defendant had waived his right to be present. There was no discussion in Hall of harmless error.
In State v. Lang, No. 104,714, 2011 WL 6943098, at *2 (Kan.App.2011) (unpublished opinion), this court rejected the State's claim that the defendant's absence at a restitution hearing was harmless error, finding that ‘a sentence imposed outside the presence of the defendant is void unless the defendant has waived this right.’ 2011 WL 6943098, at *2. The restitution order in Lang was vacated and remanded for a new hearing.
There is no suggestion here that Ball clearly and unequivocally waived her right to be present for the restitution hearing. The trial court seemed unconcerned with Ball's serious medical issue and expressed more concern for the right of the victim to his restitution hearing. By granting a reasonable continuance to ensure Ball's constitutional and statutory right to be present, the trial court could have protected both the defendant and the victim. While the amount in controversy may not seem substantial to some and the evidence may appear rather conclusive, Ball had a right to be present to assist her attorney and even to testify if she chose to do so. Ball did not waive her right to be present at a stage of her criminal case which involved a disposition of her liberty and property.
The trial court's restitution order must be vacated and remanded for rehearing in Ball's presence.
The Apprendi Violation
In her second issue on appeal, Ball argues that the trial court used her prior criminal history to increase the penalty for her crime without proving the existence of her past convictions to a jury, in violation of her right under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Kansas Supreme Court expressly rejected this argument in State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002). We are bound to follow this Kansas Supreme Court precedent, which has been reaffirmed in numerous subsequent cases. Ball is not entitled to relief on this issue, and her sentence is affirmed.
Sentence affirmed in part, restitution order vacated, and case remanded for new hearing.