Opinion
No. 108,280.
2013-07-5
STATE of Kansas, Appellee, v. Thomas Harvey PERRY, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Thomas Harvey Perry pled guilty to two counts of criminal nonsupport of his child in exchange for dismissal of four other nonsupport charges of his other children. The district court denied Perry's motion for dispositional departure, sentenced him to 18 months' incarceration, and ordered him to pay restitution of $37,582 .29 for unpaid child support for his children.
Perry appeals, contending the State violated the terms of the plea agreement by failing to adequately support his request for probation. Perry also argues the trial court erred in assessing restitution for unpaid child support related to a charge the State dismissed as a part of the plea agreement.
The record reflects that in November 2011 Perry was charged in Johnson County District Court with six counts of criminal nonsupport of a child in violation of K.S.A.2012 Supp. 21–5606. Counts I and II alleged failure to support T.H.; counts III and IV alleged nonsupport of T.H.; and counts V and VI alleged nonsupport of B.H. The affidavit in support of the arrest warrant cited three different civil cases in which Perry failed to pay child support that had been ordered. The affidavit also set forth total amounts of unpaid child support in each case.
A plea agreement was reached with Perry agreeing to plead guilty to counts I and II and the State agreed to dismiss counts III, IV, V, and VI. The agreement signed by Perry obligated him to pay “full restitution.” The agreement provided the parties would recommend probation and a departure sentence if Perry fell, as expected, into a presumptive prison box.
A presentence investigation (PSI) report was ordered, which reflected Perry had 38 prior convictions resulting in a criminal history score of A and placed him in a presumptive prison grid box. The PSI report also showed Perry was subject to a special rule because he committed the current offenses while he was on felony bond. Perry filed a motion for dispositional departure requesting probation.
At the sentencing hearing, Perry agreed with the criminal history score set forth by the PSI report. The State asserted the PSI report incorrectly reflected restitution of only $12,591 and the figure should have included the unpaid child support for all three children totaling $37,582.29. Neither defense counsel nor Perry objected to the amount of restitution the State requested. Perry did say he was working fulltime and intended to start making consistent child support payments.
Perry's counsel argued the motion requesting departure to probation. He said at the time of the plea, both sides had anticipated Perry would fall into a presumptive prison box, but the State had agreed to dispositional departure. Counsel cited Perry's current employment and involvement in a betterment class to improve his job seeking and parenting skills. Defense counsel also asserted that Perry wanted to pay his past due child support but could not do so if he was in prison.
The judge actively participated in the sentencing hearing. During defense counsel's argument, the court pointed out that Perry recently had been convicted of cocaine charges reflecting that he had money to buy drugs but not to pay child support. In response, Perry asserted that the recent drug conviction was based on him being in a car where drugs were found; Perry claimed he did not know the drugs were in the vehicle. The judge also discussed with Perry his long history of criminal activity.
The court then asked the State to justify its recommendation to probation. The prosecutor first advised the court that the mother of the children wished to speak to the court. Then the prosecutor stated that the State agreed to the recommended sentence because Perry could not pay child support if he was in prison. The prosecutor also stated that Perry had made one payment of $500 towards child support, although he agreed with the court's statement that Perry had not made any other payments while the case was pending. The prosecutor also noted that shortly before the sentencing hearing, Perry had violated an earlier order limiting his contact with the children's mother.
In her statement to the court, the children's mother was not supportive of Perry's request for probation. She stated Perry was not taking responsibility for raising the children and she had paid $5,000 in attorney fees because Perry asked for parenting time. She said she worked three jobs and she was raising her children. She reported Perry had beaten one of his children, which was why she disputed his parenting time request. She also opined that Perry's denial of knowledge relating to his prior drug conviction was false. During her comments, she repeatedly expressed doubt as to whether Perry would pay child support if the court placed him on probation.
At the conclusion of the hearing, the court sentenced Perry to consecutive prison sentences totaling 18 months' incarceration to run consecutive to his prior sentence from a Wyandotte County case. The court denied Perry's motion for dispositional departure, finding there was no substantive and compelling reasons to grant the departure. The court also set restitution at $37,582.29. From this ruling, Perry has timely appealed. Did the State violate the plea agreement?
Perry's first issue on appeal is his contention that the State violated the plea agreement during the sentencing hearing because it failed to justify the agreed-upon sentence of probation. Perry also argues the prosecutor's statements effectively argued against probation and violated the plea agreement, which requires his sentence to be vacated and the case remanded for resentencing before a different judge.
Perry raises this issue for the first time on appeal and did not raise any objection below during the sentencing hearing, Ordinarily, an issue not raised in the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). However, appellate courts make an exception to this general rule when the issue presented alleges deprivation of a fundamental right. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Because a criminal defendant's due process rights are implicated when the State breaches a plea agreement, see State v. Urista, 296 Kan. 576, 583–84, 293 P.3d 738 (2013), the issue presented by Perry comes within the exception to this general rule.
The standard of review is well established. A claim that the State breached a plea agreement presents a question of law over which this court exercises unlimited review. State v. Peterson, 296 Kan. 563, Syl. ¶ 1, 293 P.3d 730 (2013).
A plea agreement is a contract between the State and the accused, and both parties must perform the promises they exchanged. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Woodward, 288 Kan. 297, 300, 202 P.3d 15 (2009). If the State does not perform its obligations, then the appellate court must decide whether justice requires that (1) the promise be fulfilled or (2) the defendant be given the opportunity to withdraw his plea. 288 Kan. 297, Syl. ¶ 2. A due process violation occurs with any breach, even if the sentencing judge was not influenced by the State's statements at sentencing. Such a breach will be harmless only if a court can say beyond a reasonable doubt that the State's promise regarding the sentencing recommendation had little, if any, influence on the defendant's decision to enter the guilty plea. Urista, 296 Kan. at 576, Syl. ¶ 6.
Here, Perry does not argue that the State explicitly recommended a prison sentence; however, he asserts the State's comments to the court effectively undermined its agreement to recommend probation. Perry argues the violation occurred because the State (1) never attempted to present substantial and compelling evidence to support a departure sentence; (2) agreed with the court's comments that Perry failed to pay child support in the past; and (3) acquiesced to the court's statements that a prison sentence would set an example to other parents. Perry also complains about the State's comments advising the court that Perry had violated the “no contact” order entered earlier in the case and its failure to “rebut” the statements made by the victim expressing doubts that she would receive child support, even if the court granted Perry probation.
Our appellate courts have issued several recent decisions attempting to delineate a prosecutor's duties to the court and to the defendant when plea agreements are involved. We have acknowledged that the State can breach a plea agreement by “effectively arguing against the negotiated sentencing recommendation.” Woodward, 288 Kan. at 300. However, the prosecutor does not need to be enthusiastic in making sentencing recommendations, even when it is part of the plea deal. State v. Foster, 39 Kan.App.2d 380, 387, 180 P.3d 1074,rev. denied 286 Kan. 1182 (2008). If the State actually makes the sentence recommendation that it promised, the prosecutor's further statements in support of the recommended sentence do not breach the plea agreement “so long as the comments do not effectively undermine the recommendation.” Woodward, 288 Kan. at 300.
Our Supreme Court's most recent attempts to address this issue were two opinions we have previously cited herein. In Peterson, 296 Kan. at 574–75, the Supreme Court found the State violated its agreement to remain silent at sentencing. In Urista, 296 Kan. at 594–96, the court reversed a sentence finding that the State's comments during sentencing implicitly opposed the agreed-upon sentence.
In both these cases, the Supreme Court attempted to clarify the demarcation between allowed and forbidden actions by the prosecutor when a plea agreement involves a sentencing recommendation. In Peterson, the court emphasized the “Tine line' “ a prosecutor walks in balancing the duty to provide the sentencing courts with relevant information and complying with the plea agreement. 296 Kan. at 573. In Urista, the court evaluated numerous authorities and identified several relevant factors that should be considered in determining whether a prosecutor's statements violate the terms of the plea agreement. 296 Kan. at 583–95. Both cases favorably cite to Foster, 39 Kan.App.2d 380, the case upon which Perry heavily relies.
Urista is more comparable to our facts than Peterson. In Urista, the State's agreement required it to recommend concurrent sentences on various counts. The State asked the court to follow the terms of the plea agreement but made an extensive statement as to a lengthy juvenile record, gang affiliation, and detailed information from victim impact statements. The prosecutor concluded by again asking the court to impose the agreed-upon sentence. The court imposed both consecutive and concurrent sentences resulting in controlling sentence twice the length recommended by the plea agreement.
Our Supreme Court in Urista held the prosecutor effectively undermined the agreed-upon sentencing recommendation. Factors considered by the court included (1) the degree to which the plea agreement restricted the prosecutor from making the comments in question; (2) whether the comments were made in response to arguments presented by the defendant; and (3) the level of discretion the district court has in imposing the recommended sentence. Urista, 296 Kan. 576, Syl. ¶ 5.
In applying the factors and looking at a very short sentencing record, our case is nothing like Urista or Foster.
The State asked the court to impose the agreed-upon sentence calling for probation, asserted Perry could not pay child support if in prison, and pointed out Perry had made a $500 support payment. The prosecutor does not need to be enthusiastic in making sentencing recommendations even when it is part of the plea deal. Foster, 39 Kan.App.2d at 387. The Due Process Clause does not require the government to do more than acknowledge its concurrence with the defense request. United States v. Benchimol, 471 U.S. 453, 455–56, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985); State v. Chesbro, 35 Kan.App.2d 662, 675, 134 P.3d 1,rev. denied 282 Kan. 792 (2006).
The victim's statements took direct issue with information and argument presented by Perry or his attorney, but the prosecutor did not do so.
The final factor identified by Urista is the level of discretion the court possessed in imposing the sentence. In this case, the court was required to find substantial and compelling reasons to impose a departure sentence to grant probation.
The only questionable comment the prosecutor made might be the fact Perry had called his wife in violation of a no-contact order. Perry did not dispute that he violated this order. Also, the victim advised the court of the prohibited contact and she opined he did not really want to talk to the children but only called to tell her he did not want to go to jail. This isolated statement should not ultimately require a new sentencing hearing.
Perry also asserts the State was obligated to “rebut” the statement made by the victim in the case—the children's mother. The Kansas Constitution, Article 15, § 15 (2011 Supp.) and K.S.A.2012 Supp. 22–3424(e)(3) grants the victim of a crime (or members of the victim's family) the right to address the court at sentencing. This means that although victim(s) have some relationship with the prosecutor, they were not necessarily under his or her control. See Chesbro, 35 Kan.App.2d at 674. Accordingly, the courts have repeatedly held that statements made by victims or victims' families do not violate the State's obligations under a plea agreement. See Chesbro, 35 Kan.App.2d at 674;State v. Ralston, No. 106,539, 2012 WL 5205577, at *7 (Kan.App.2012) (unpublished opinion); State v. Dunlap, No. 102,096, 2011 WL 420702, at *3 (Kan.App.2011) (unpublished opinion); see also State v. Hill, 247 Kan. 377, 381–82, 799 P.2d 997 (1990) (no breach of plea agreement when State referred court to PSI report which included victim impact statements and noted that the victims believed an amount of time would be sufficient to punish the defendant).
Perry takes issue on appeal with the prosecutor's acquiescence with the judge's statement about the deterrent effect of a prison sentence, but the prosecutor did correct the court by noting Perry had made one child support payment during the case and the children would receive no support if Perry was sent to prison.
Here, the prosecutor was obligated to recommend probation and did so. Nothing obligates the State to assure the court of a defendant's likely success on probation, nor is a prosecutor allowed to exaggerate or even opine confidence in the defendant's ability to comply with the terms of probation.
We find no violation of the standards in Urista, Peterson, Woodward, or Foster. We reject Perry's arguments and affirm his convictions. Was the restitution order unlawfully entered?
Having upheld Perry's convictions, we next consider his challenge to the restitution order. He argues that in assessing “full restitution” that included what he was obligated to pay for the support of all of his children, the court violated K.S.A.2012 Supp. 21–6604(b)(1). He argues there is no causal link between his convictions and the unpaid child support provided for in the dismissed charges.
An appellate court's review of a restitution order can involve three standards of review. Issues regarding the amount of restitution and the manner in which it is made to the aggrieved party are normally subject to review under an abuse of discretion standard. State v. Dexter, 276 Kan. 909, 912, 80 P.3d 1125 (2003). A district judge's factual finding of causation between the crime and the victim's loss is subject to a substantial competent evidence standard of review. State v. Goeller, 276 Kan. 578, Syl. ¶ 1, 77 P.3d 1272 (2003). Finally, this court has unlimited review over the district court's interpretation of statutes. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
Perry concedes in his brief that he did not challenge the amount of restitution in the district court. The record reflects that the prosecutor requested an amendment to the PSI report to include the unpaid child support from the dismissed charges in the restitution amount. Although the court specifically addressed both Perry and his attorney, neither of them objected to the amended restitution amount. Failure to object to the restitution normally precludes this court from addressing the issue. See State v. King, 288 Kan. 333, 356, 204 P.3d 585 (2009) (defendant did not raise issue of workability of restitution before the district court, so the issue would not be addressed on appeal); State v. Hunziker, 274 Kan. 655, 662, 56 P.3d 202 (2002) (defendant cannot challenge the district court's authority to order restitution for the first time on appeal); State v. Dyer, 33 Kan.App.2d 766, 768, 108 P.3d 1010 (2005) (despite no agreement to pay restitution, defendant acquiesced to restitution in an amount she later claimed exceeded the amount of loss).
Perry asks us to address the issue claiming it involves a question of law on proven or admitted facts that finally determine the case. See State v. Frye, 294 Kan. 364, 369, 277 P.3d 1091 (2012) (preservation rule is based on prudential, not jurisdictional, concerns); State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (setting forth the exceptions to the preservation rule).
Perry's arguments do not fall within the exception cited. The issue is not solely one of law. The meaning of “full restitution” was not discussed below, but there is no question that Perry was obligated to support all of his children and the failure of Perry or his counsel to question the amount requested by the State may be considered to be his understanding of the plea agreement at the time he was attempting to obtain probation. One can only speculate that a contrary argument would not have aided his attempt to escape incarceration.
In effect, Perry's arguments regarding this issue is based on an unsupported premise that he did not agree to pay child support for the children named in the dismissed charges. Perry has either acquiesced in the restitution order or waived his right to challenge it on appeal. Either way, this issue fails.
Affirmed.