Opinion
No. 103,069.
2014-10-17
STATE of Kansas, Appellee, v. Douglas M. SMITH, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Smith, No. 103,069, 2011 WL 781616 (Kan.App.2011) (unpublished opinion), filed on March 4, 2011, Douglas M. Smith filed a petition for review, which was granted on May 6, 2014. Our Supreme Court summarily reversed this court's memorandum opinion and remanded the matter for consideration in light of its decisions in State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014); State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014); and State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). The only issue on appeal is whether the district court lacked jurisdiction to impose restitution after it had already imposed a lawful sentence. For the reasons explained herein, we find no merit to Smith's claim that the district court lacked jurisdiction to impose restitution.
At the conclusion of Smith's sentencing hearing for aggravated burglary, the State requested that the court retain jurisdiction to consider the issue of restitution at a later date. The district court scheduled the hearing to decide restitution less than a month after sentencing. That date was later continued without objection from the parties for a further 5 weeks. At the hearing, the district court ordered Smith to pay $4,580.83 in restitution. He appealed, arguing that the district court lacked jurisdiction to order restitution after the district court had imposed a lawful sentence. On appeal, this court affirmed the district court and declined to deviate from precedent found in State v. Cooper, 267 Kan. 15, 18, 997 P.2d 960 (1999). In Cooper, the Kansas Supreme Court held that a district judge who timely ordered restitution at sentencing had discretion to extend the time to set an amount of that restitution.
Following the Supreme Court's remand, we ordered each party to file and serve a written response setting forth any and all arguments as to how this court's initial memorandum opinion should be reconsidered in light of Hall, Charles, and Frierson. Before discussing those arguments, we should summarize the opinions that have brought us to reconsider Smith's appeal.
Hall was the first of the three opinions considering a district court's jurisdiction to decide restitution after the sentencing hearing, all of which were issued on the same day. In Hall, the district court ordered restitution to remain open for 30 days after the sentencing hearing and told the defendant he had 10 days to file an appeal. At a later hearing, conducted after the defendant had filed an appeal of his conviction and sentence, the district court ordered him to pay more than $32,000 in restitution. The defendant appealed the restitution order, in part, because, he argued, the district court lacked subject matter jurisdiction to impose restitution after his sentencing hearing.
The Kansas Supreme Court characterized the sequence of events in the district court as a sentencing hearing followed by what was understood by the parties to be a restitution hearing. All parties had agreed that the sole issue at the second hearing was the amount of restitution the defendant would have to pay. The district court did not specifically indicate that the second hearing was a continuation or bifurcation of the sentencing hearing. Following an analysis of prior caselaw addressing similar issues, our Supreme Court stated:
“We now hold that, because restitution constitutes a part of a defendant's sentence, its amount can only be set by a sentencing judge with the defendant present in open court. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.
“This is not to say that a sentencing hearing can never be continued or bifurcated so that parts of a sentence are handed down one day and other parts another. Restitution may be ordered on one date and the amount set on another. Subject matter jurisdiction persists. We recognize that establishing the proper amount of restitution can take some time. Documentation may be difficult to obtain from nonparties ... or treatment for a victim may involve ongoing expenses. A sentencing judge must balance these realities against a defendant's legitimate due process interest in speedy adjudication and a timely opportunity to appeal his or her conviction and sentence. See K.S.A. 22–3424(c) ( ‘judgment shall be rendered and sentence pronounced without unreasonable delay’). Should the State or the district judge postpone completion of sentencing too long, a defendant may move to expedite or seek a writ of mandamus. Extreme cases may warrant sanctions to be imposed.” Hall, 298 Kan. at 986–87.
After noting that “there generally have been no magic words for a district judge to recite to effect a continuance of a sentencing hearing for setting a restitution amount,” the court stated: “In the future, the expected practice for a sentencing judge will be an explicit and specific order of continuance for the purpose of determining the amount of restitution or whatever other aspect of sentencing remains incomplete.” 298 Kan. at 987.
The Kansas Supreme Court took care to clarify that a defendant may waive his or her right to be present at the continued sentencing hearing, but it advised district judges that it would be best to make a record of any such waiver. Further, the court held:
“[I]n a criminal matter, where judgment is effective once pronounced from the bench, a premature notice of appeal that seeks review of a conviction and sentencing yet to be completed lies dormant until final judgment including the entire sentence is pronounced from the bench. At that point, the notice of appeal becomes effective.” 298 Kan. at 988.
Hall was followed by Charles, where the district court stated at sentencing that restitution “ ‘as contained within the presentence report will be ordered.’ “ 298 Kan. at 995. The presentence report set out specific restitution for some of the victims but stated that restitution for another victim was “ ‘to be determined.’ “ 298 Kan. at 995. The defendant filed his notice of appeal the day after his sentencing hearing. Thereafter, the district court issued an order requiring the defendant to pay restitution in the amount of $1,192.69 to the remaining victim. The court noted that the district judge did nothing to indicate that he realized the presentence report had not determined specific restitution for this victim, and he said nothing to preserve jurisdiction, hold the sentencing open, or continue the matter to another date. On appeal, the defendant argued that the district court lacked subject matter jurisdiction to set the amount of restitution for the remaining victim through an order filed after the defendant's sentencing hearing.
The Kansas Supreme Court determined that its opinions in Hall and Frierson controlled and those decisions compelled the court to vacate the restitution order as to that remaining victim. The court felt that under the facts of this case, the defendant's sentencing was complete at the conclusion of his sentencing hearing despite the fact that the presentence report failed to specify restitution for one of the victims. The district judge's failure to continue the hearing stripped the district court of jurisdiction. Further, restitution should have been finalized in open court with the defendant present unless the defendant waived his right to be present, in which case the judge could have finalized the restitution by written order.
In Frierson, the district judge ordered the defendant to pay $950 in restitution to the victim at the sentencing hearing, but there were some additional dental bills that needed to be addressed. By agreement of the parties, the judge held jurisdiction on the restitution issue open for 30 days so that the State could determine what percentage of those bills was attributable to the defendant and what percentage was attributable to the victim's preexisting dental disease. The judge notified the defendant that he had 10 days to file an appeal, and the defendant filed his appeal of his conviction and sentence the following day.
Approximately 1 month later, the district judge filed a restitution order requiring the defendant to pay restitution in the amount of $1,262 without holding a later hearing on the restitution issue in the presence of the defendant or his counsel. Nonetheless, defense counsel signed the order, which was silent about the defendant waiving his right to be present at sentencing. On appeal, the defendant argued that the district court lacked subject matter jurisdiction to increase the amount of restitution in the second order, filed nearly a month after sentencing.
The Kansas Supreme Court determined that the procedure used here satisfied “the spirit, if not the letter, of the procedure [it] set out for future cases in Hall ” because at the end of the sentencing hearing, all involved knew sentencing had not been completed, the judge explicitly held jurisdiction open, the parties agreed to the 30–day extension, and the restitution order issued thereafter was signed by defense counsel and entered within the 30–day extension period. Frierson, 298 Kan. at 1021. The defendant had been present at sentencing and made no argument on appeal that his right to be present at all critical stages of the trial had been violated, so the court determined that issue had been waived and abandoned.
Smith contends that the facts of his case most closely resemble those in Hall because, in both cases, the district court specifically stated it would decide restitution at a later date and, in both cases, the district court imposed restitution at a date beyond the original delayed date. He argues, however, that the district court lacked jurisdiction to impose restitution in his case because the restitution hearing that occurred almost 3 months after his initial sentencing hearing infringed upon (1) his statutory right to have his sentence imposed without unreasonable delay and (2) his due process right to a speedy adjudication and timely opportunity to appeal his conviction and sentence. See K.S.A. 22–3424(c); Hall, 298 Kan. at 987.
Whether the district court had jurisdiction is a question of law over which we exercise unlimited review. State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010). A sentence imposed by a court without jurisdiction is illegal pursuant to K.S.A. 22–3504(1). Whether a sentence is illegal within the meaning of that statute is also a question of law, and, again, our review is unlimited. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
K.S.A. 22–3424(c) states that upon a verdict or finding of guilt, “judgment shall be rendered and sentence pronounced without unreasonable delay.” This court has held that when reviewing compliance with this statute, we must determine (1) whether the sentencing delay was inadvertent, (2) whether the defendant suffered prejudice by the delay, and (3) whether the defendant consented to the delay by failing to demand sentencing. State v. Cody, No. 98,279, 2008 WL 2571832, at *2 (Kan.App.2008) (unpublished opinion) (citing State v. Campbell, 273 Kan. 414, 424, 44 P.3d 349 [2002]; see State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 [1985] ).
Smith asserts that the delay here was not inadvertent because the district court explicitly held restitution open for 28 days but then did not impose restitution during that time frame. The record does not indicate why the restitution decision was delayed beyond the 28 days, but it does show that Smith appeared with counsel when the restitution hearing was continued for another month. From the record, we are unable to determine whether the delay was inadvertent or whether it was caused by some reason attributable to the State.
Smith next asserts that that he was prejudiced because the delay in ordering restitution delayed his ability to pursue his direct appeal. Smith filed his appeal on May 23, 2008, the very day of his sentencing hearing. His appeal lay dormant until his sentencing was final on August 1, 2008, 70 days later. He then pursued his direct appeal, and this court considered all of his arguments raised therein. In the course of that appeal, Smith sought and was granted two extensions of time to file his brief on appeal, delaying the disposition of his appeal by 60 days, almost as long as it took the district court to resolve the restitution issue. We conclude that Smith has failed to show that he suffered any prejudice by the delay in determining the amount of his restitution.
Finally, Smith asserts that the third Cody factor—whether he consented to the delay by failing to demand sentencing—should not be applied to him because doing so would imply that a defendant has a responsibility to not only enforce but also to increase his or her punishment. We agree with Smith that he had no obligation to demand sentencing. Nevertheless, Smith did not object when the State asked the district court to hold sentencing open to determine restitution and did not object when the restitution determination was later continued to August 1, 2008. Smith's consent to the continuances can be considered in determining whether his rights under K.S.A. 22–3424(c) have been violated.
Here, Smith pled no contest to the charges on February 20, 2008. The original sentencing hearing occurred on May 23, 2008, and Smith did not object to the State's request to have a hearing regarding restitution on June 20, 2008. The record does not indicate what occurred on that day, but it does indicate that Smith appeared with counsel on June 30, 2008, and the hearing was continued without objection to August 1, 2008. The 70–day delay was not unreasonable under these circumstances. See Cooper, 267 Kan. at 18–19 (district court did not abuse its discretion by holding restitution hearing 6 months after sentencing even though court ordered restitution to be determined within 30 days). Under these facts, we conclude the delay in holding the restitution hearing did not violate Smith's right under K.S.A. 22–3424(c) to have his sentence imposed without unreasonable delay such that the district court lacked jurisdiction to impose restitution.
Next, Smith argues that the 70–day delay in imposing restitution infringed upon his due process right to a speedy adjudication and timely opportunity to appeal his conviction and sentence. See Hall, 298 Kan. at 987. To support this argument, Smith cites Harris v. Champion, 15 F.3d 1538, 1559 (10th Cir.1994), in which the Tenth Circuit Court of Appeals used the four-part analysis from Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), when determining whether a defendant's due process right to a timely direct appeal had been violated. This analysis involves consideration of (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. Smith's argument is that he was denied his right to a timely direct appeal.
Here, the total delay from the sentencing hearing to the determination of restitution was 70 days. Smith concedes that the record is devoid of any reason for the delay. Smith asserted his right to appeal by filing a notice of appeal on the very day he was sentenced. As previously discussed, Smith has failed to show that he suffered any prejudice by the delay in determining the amount of his restitution. He pursued his appeal and this court considered all of the issues he raised in it. We conclude that the delay in conducting the restitution hearing did not infringe upon Smith's due process right to a speedy adjudication and timely opportunity to appeal his conviction and sentence such that the district court lacked jurisdiction to impose restitution on August 1, 2008.
In summary, Smith's new arguments that the district court lacked jurisdiction to impose restitution, considered in light of Hall, Charles, and Frierson, fail on the facts of this case. The district court's order of restitution is affirmed.
Affirmed.