Opinion
No. 108,657.
2013-11-22
STATE of Kansas, Appellee, v. Anthony MYERS, Appellant.
Appeal from Sedgwick District Court; J. PATRICK WALTERS, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. PATRICK WALTERS, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Anthony Myers appeals his sentences for aggravated battery and misdemeanor battery, claiming an inability to pay restitution. We find the district court did not abuse its discretion in ordering restitution and affirm.
Myers pled no contest to one count of aggravated battery and one count of misdemeanor battery stemming from an incident that occurred on July 7, 2012. As part of his plea agreement, Myers agreed to pay restitution, if requested, jointly and severally with his codefendant.
On August 30, 2012, the district court sentenced Myers to 6 months in jail, to run consecutive to 24 months' probation with an underlying 13–month prison sentence. The court left the issue of restitution open for 60 days and awarded Myers 38 days of jail-time credit.
Myers' attorney filed a notice of appeal on September 5, 2012.
On October 26, 2012, the district court held a restitution hearing. The State requested $25,199.97 in restitution to cover the victim's prescription medication and medical treatment. Myers' attorney argued the requested amount of restitution was unworkable because (1) Myers had been in jail and lacked employment, assets, and income; (2) his payment of attorney fees had been waived for those reasons; and (3) one of his codefendants had already pled guilty. The court ordered Myers to pay, jointly and severally, the full amount of requested restitution. In doing so, the court found: “[Myers] is young. He doesn't have any physical disabilities. He's capable of getting out in a few months. I looked at the sentence. He's got to do a six-month sentence. He's capable of working, capable of paying back the restitution....”
On November 14, 2012, after issuing a show-cause order on the question of jurisdiction, this court retained Myers' appeal.
On appeal, Myers argues the district court erred by ordering him to pay $25,199.97 in restitution because the amount was unworkable. The State asserts we lack jurisdiction to address the restitution issue or, in the alternative, the district court's restitution order was not arbitrary or unreasonable.
Questions concerning the amount of restitution are generally reviewed for abuse of discretion. Judicial discretion was abused if judicial action was arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court. State v. Hall, 297 Kan. 709, Syl. ¶ 2, 304 P.3d 677 (2013).
A district court's ability to impose a restitution plan during sentencing is governed by K.S.A.2012 Supp. 21–6604(b)(1), which provides in relevant part: “[T]he court shall order the defendant to pay restitution ... unless the court finds compelling circumstances which would render a plan of restitution unworkable.” The Kansas Supreme Court has held that the clear language of the statute makes “restitution [ ] the rule and a finding that restitution is unworkable the exception,” and places the burden on the defendant to demonstrate that a restitution plan is unworkable. State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 (2003).
Here, Myers fails to demonstrate compelling circumstances warranting a deviation from the rule of restitution. There is no evidence that Myers is disabled or otherwise unable to earn an income. He presents no evidence that when he is released from jail, after serving less than 6 months, he will be unable to obtain gainful employment and repay the victims for the damage he has caused. In sum, Myers fails to demonstrate that no reasonable person would order restitution under these circumstances. See State v. Schmitter, No. 101,524, 2010 WL 445915, at *1 (Kan.App) (unpublished opinion) (district court did not abuse its discretion by ordering restitution under analogous circumstances), rev. denied 290 Kan. 1102 (2010); cf. State v. Burke, No. 104,014, 2011 WL 3444324, at *2 (Kan.App.2011) (unpublished opinion) (district court abused its discretion by ordering restitution after acknowledging defendant's inability to pay). Accordingly, the district court did not abuse its discretion by ordering Myers to pay $25,199.97 in restitution.
Myers also argues the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior convictions to enhance his sentence without requiring the State to prove them to a jury beyond a reasonable doubt.
Myers acknowledges that this issue was decided against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and he presents it to preserve his federal review. This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Elkins, 44 Kan.App.2d 974, 985, 242 P.3d 1223 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that our Supreme Court intends to depart from its position on this issue. See State v. Parks, 294 Kan. 785, 805–06, 280 P.3d 766 (2012) (reaffirming Ivory ). Therefore, the district court did not err by using Myers' prior convictions to enhance his sentence.
We need not address the question of jurisdiction.
Affirmed.