State v. Union ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,643
STATE OF KANSAS,
Appellee,
v.
ALONZO UNION,
Appellant.
SYLLABUS BY THE COURT
A no contest plea to a charged offense operates to establish every essential well-
pleaded element of that offense. When one of those essential elements requires the taking
of resources having a certain value, the well-pleaded facts in the charging document
necessary to support this "value" element may be considered as evidence to support
restitution.
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 21,
2022. Appeal from Wyandotte District Court; AARON T. ROBERTS, judge. Oral argument held February 1,
2024. Opinion filed August 9, 2024. Judgment of the Court of Appeals affirming the district court is
affirmed in part and vacated in part. Judgment of the district court is affirmed in part and vacated in part.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.
Ivan Moya, assistant district attorney, argued the cause, and Daniel G. Obermeier, assistant
district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with
him on the brief for appellee.
1
The opinion of the court was delivered by
WILSON, J.: This case challenges a restitution order.
Alonzo Union was the caretaker of Jean Miller, an elderly woman with dementia.
For several years, at one time serving as Miller's power of attorney, Union had access to
Miller's finances. When a nursing home bill went unpaid, the Kansas Department for
Children and Families (DCF) investigated Union's activities. Union entered a no contest
plea to mistreatment of a dependent adult. As part of his sentence, the court ordered
Union to pay the nursing home Miller's outstanding balance as part of his restitution, and
also ordered Union to pay restitution to Miller for certain payments and cash withdrawals
from Miller's account, including one-half of the Walmart purchases and one-half of the
ATM withdrawals.
Union appealed and a panel affirmed the restitution amount. We granted review on
one issue: whether the restitution order was supported by substantial competent
evidence. Within this issue, Union argues the nursing home restitution award was not
causally linked to his crime of conviction, and he also argues the evidence did not support
the Walmart and ATM withdrawal restitution figures. We vacate the nursing home
restitution award and affirm the rest.
FACTS AND PROCEDURAL BACKGROUND
Alonzo Union met Jean Miller in 2007. They soon became friends, and within a
few years, Union moved in with Miller and they shared the rent. After Miller began to
suffer from dementia, Union acted as her caretaker. By 2014, Union was authorized to
use Miller's bank account.
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Union became Miller's durable power of attorney in March 2016. That summer,
Miller moved into Riverbend, a nursing home. Miller left Riverbend in March 2017, with
an outstanding account balance of around $9,000. Union set up a payment schedule, but
the payments stopped after two or three months. Miller moved back in with Union after
leaving Riverbend.
At this point, Riverbend notified DCF that there was potential abuse or neglect.
Katrina Racklyeft, a social worker for DCF, opened an investigation. She interviewed
both Union and Miller. She also reviewed Miller's finances and became concerned elder
abuse was occurring. Her office requested and received an emergency guardianship and
conservatorship to protect Miller and her finances.
Racklyeft went with a member of the sheriff's office to serve Union and remove
Miller from the home. Union was not there but they found Miller. The front door was
screwed shut and the backdoor was blocked by a lawnmower. Miller appeared to be in
good health. A member of the sheriff's office left the guardianship papers in the home.
Racklyeft returned the next day and spoke with Union. She explained he was required to
turn over Miller's accounts and cards. Yet Union continued to access Miller's funds.
District Court Proceedings
In November 2018, Union agreed to plead no contest to mistreatment of a
dependent adult, a level 5, person felony. In turn, the State agreed to be open to probation
and would argue restitution. After advising Union of his right to a trial and asking
questions about the plea agreement, the court accepted the no contest plea and found
Union guilty. At the sentencing hearing, the court imposed a 43-month underlying
sentence and suspended the sentence in favor of probation. Miller passed away before
sentencing.
3
At the March 2019 restitution hearing, Racklyeft testified about her investigation
of Miller's finances from November 2014 to November 2017. First, all the income in
Miller's account, totaling $52,787.54, was traced to Miller and consisted solely of her
social security and a pension. Second, Racklyeft testified to the expenses during that
period she believed contributed to Miller's care. These expenses included utilities.
Third, Racklyeft testified to the expenses she believed did not contribute to
Miller's care. These expenses were broken into many categories, with the two largest
being ATM withdrawals, which came to a "ballpark figure" of $30,000, and Walmart
purchases, which totaled $9,365.28. Other expenses included liquor, the YMCA, USPS,
several purchases in Minnesota, a dating website, a casino, Men's Wearhouse, and a shoe
store. Racklyeft presented three spreadsheets as demonstrative evidence in support of her
testimony.
Racklyeft testified she could not account for the $30,000 of ATM withdrawals
because "[t]here's no way to show receipts of where that money was spent." She
explained she did not know what the withdrawals were used for. When asked what the
withdrawals revealed, based on her training and experience, she responded: "I can't
answer that. I don't know that it went to her care. I can't say that it did, but I can't say that
it didn't because there's no trail with it like with the other purchases." She explained she
had to presume the money was not spent for Miller. She asked Union about the
withdrawals during their initial interview, and Union said he spent the money on the
house they were renting and the items in the home. Union never provided receipts for
rent, though Racklyeft never requested this information. Racklyeft also noted she did not
know what Union purchased at Walmart.
4
Racklyeft asserted Union owed Riverbend $7,632.74 for Miller's stay because, at
the time, he was Miller's durable power of attorney and he signed the paperwork
admitting Miller to the facility. Separately, Union had personally guaranteed the
Riverbend bill.
In summary, Racklyeft asserted damages incurred by Miller consisted of Miller's
entire income figure, $52,787.54, plus the Riverbend bill, $7,632.74, leading to a grand
total loss of $60,420.28.
Union also testified at the restitution hearing and provided his account of the
expenditures. He acknowledged that some expenditures were not for Miller, including the
liquor purchases and the shoe purchase. But he testified all the ATM withdrawals were
for "[t]he house, us, food." He explained some of the Walmart purchases were money
orders or cash used to pay for Miller's car, including "some large amounts" around
$1,000, which were required to catch up on payments that her previous caretaker, her
brother, failed to make. Union drove the vehicle to Minnesota several times and used
Miller's money to pay gas and to register the vehicle in Minnesota.
He explained that before Miller moved into Riverbend, they split rent down the
middle. After Miller left Riverbend and they moved into a new residence, they paid $750
in rent, which came from the account he was authorized to use. He also used this account
to pay utilities, insurance, and other household requirements. Miller and Union rented
both residences from the same company. Union testified that he tried to contact the rental
company to get proof of payments, but he failed because the company's phone was not
set up and the company's business location had moved.
Union testified his income came from a VA pension and social security. He did
not put the VA pension in the account he was authorized to use. Though the testimony is
5
unclear, it appears he began drawing social security after Miller was removed from the
home.
Union also testified about the outstanding bill at Riverbend. He acknowledged he
owed Riverbend $7,632.74 for Miller's stay. He explained he stopped making payments
because he reached out to Riverbend and Racklyeft to discuss Riverbend adding an extra
$900 to the bill that he did not understand.
Union also acknowledged that, as a durable power of attorney, he had a duty to
record how he used Miller's money. He testified he kept records of what was spent on
himself and what he spent on Miller, but he explained these records were lost except for
receipts related to furniture purchases.
The final witness at the restitution hearing was Miller's niece, Crystal Cartwright.
She visited Miller when Miller was living with Union. Cartwright felt Miller was well
cared for and never worried about Miller's financial or emotional stability.
After the witness testimony, the court heard arguments and then took the issue
under advisement. The court issued its restitution order in June 2019. The court ordered
Union to pay $31,511.26 in restitution. It reached this figure by adding up these amounts:
• $7,632.74 - Riverbend
• $15,244.89 - one-half of the total ATM withdrawals
• $531.67 - liquor store purchases
• $3,115.59 - out of state purchases
• $119.70 - dating website
• $184.03 - Men's Wearhouse
• $4,682.64 - one-half of the total Walmart purchases
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The $7,632.74 was to be paid to Riverbend, and the remaining $23,878.52 was to
be paid to Miller. The court observed Union provided no documentation to support his
claim that the ATM withdrawals and Walmart purchases were for Miller's benefit. It
explained:
"The Court finds that based upon the admitted dishonesty of this crime and the failure of
Mr. Union to keep a proper account of the expenditures from Ms. Miller's account, there
is clear and convincing circumstantial evidence that Defendant spent a significant portion
of Ms. Miller's money on himself, with no concurrent benefit to her. The Court finds it is
likely he used cash as a way to conceal this improper spending. Accordingly, the Court
attributes a generously low 50% of the unaccounted-for expenditures to the benefit of the
Defendant."
Union filed a notice of appeal.
Appellate Proceedings
On appeal, Union made three arguments. State v. Union, No. 121,643, 2022 WL
12127306, at *1 (Kan. App. 2022) (unpublished opinion). First, he argued sufficient
evidence did not support the district court's restitution order. Second, he argued the
Kansas criminal restitution statutes violate section 5 of the Kansas Constitution Bill of
Rights. Third, he argued the Kansas criminal restitution statutes violated Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The panel rejected the
first and third arguments. It vacated the order that the restitution award was a civil
judgment. The panel affirmed the balance of Union's restitution order. Union, 2022 WL
12127306, at *5-6.
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Union petitioned for review with this court, and we granted review only on the
sufficiency argument. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for
petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court
has jurisdiction to review Court of Appeals decisions upon petition for review.).
DISCUSSION
Union asserts much of the district court's restitution order must be vacated by this
court for two reasons: (1) the amount owed to Riverbend was not caused by the crime of
conviction, and (2) insufficient evidence supports the district court's restitution awards of
half the Walmart purchases and half the ATM withdrawals.
Standard of Review
Appellate review of restitution orders may require three standards of review. State
v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016). First, "[q]uestions concerning the
'amount of restitution and the manner in which it is made to the aggrieved party' are
reviewed under an abuse of discretion standard." 304 Kan. at 93 (quoting State v. King,
288 Kan. 333, 354-55, 204 P.3d 585 [2009]). "A judicial action constitutes an abuse of
discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law;
or (3) it is based on an error of fact." State v. Hillard, 315 Kan. 732, 760, 511 P.3d 883(2022).
Second, "'[a] district court's factual findings relating to the causal link between the
crime committed and the victim's loss will be affirmed if those findings are supported by
substantial competent evidence.'" Shank, 304 Kan. at 93. "'Substantial competent
evidence is 'such legal and relevant evidence as a reasonable person might accept as
being sufficient to support a conclusion.''' State v. Smith, 312 Kan. 876, 887, 482 P.3d
8
586 (2021). "'In evaluating the evidence to support the district court's factual findings, an
appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or
redetermine questions of fact.'" Bicknell v. Kansas Dept. of Revenue, 315 Kan. 451, 481,
509 P.3d 1211 (2022).
Third, "'appellate courts have unlimited review over legal questions involving the
interpretation of the underlying statutes.'" Shank, 304 Kan. at 93.
Analysis
K.S.A. 21-6604(b)(1) provides a sentencing court may "order the defendant to pay
restitution, which shall include, but not be limited to, damage or loss caused by the
defendant's crime." K.S.A. 21-6607(c)(2) "gives the district court the authority to order
restitution payments as a condition of probation." State v. Arnett, 314 Kan. 183, 186, 496
P.3d 928 (2021) (Arnett II). "And the most accurate measure of this loss depends on the
evidence before the district court." State v. Hall, 297 Kan. 709, 713-14, 304 P.3d 677(2013). "'Although the rigidness and proof of value that lies in a civil damage suit does
not apply in a criminal case, the court's determination of restitution must be based on
reliable evidence which yields a defensible restitution figure.'" State v. Hunziker, 274
Kan. 655, 660, 56 P.3d 202 (2002) (quoting State v. Casto, 22 Kan. App. 2d 152, 154,
912 P.2d 772 [1996]).
Riverbend
In State v. Arnett, we explained "the causal link between a defendant's crime and
the restitution damages for which the defendant is held liable must satisfy the traditional
elements of proximate cause: cause-in-fact and legal causation." State v. Arnett, 307
Kan. 648, 655, 413 P.3d 787 (2018) (Arnett I).
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Cause-in-fact "requires proof that it is more likely than not that, but for the
defendant's conduct, the result would not have occurred." Arnett I, 307 Kan. at 654. The
other element, legal cause, "limits the defendant's liability even when his or her conduct
was the cause-in-fact of a result by requiring that the defendant is only liable when it was
foreseeable that the defendant's conduct might have created a risk of harm and the result
of that conduct and any contributing causes were foreseeable." 307 Kan. at 655. As noted
above, we review a causation finding for substantial competent evidence. Shank, 304
Kan. at 93.
Union makes two specific arguments related to the Riverbend restitution order.
First, he contends failing to pay Riverbend did not harm Miller. He essentially asserts his
restitution order cannot be based on damage to someone other than the victim of his
crime. The panel rejected this argument based on the language of K.S.A. 21-6604(b)(1).
Union, 2022 WL 12127306, at *4. But we need not decide whether restitution may be
based on damage to someone other than the victim of his crime because Union prevails
on his second argument.
Union's second argument related to Riverbend is that Riverbend was not damaged
by Union's conduct in committing the crime for which he was convicted. To evaluate
this, it is necessary to understand Union's crime of conviction. He pled no contest to one
count of mistreatment of a dependent adult, in violation of K.S.A. 21-5417(a)(2)(A). The
statute criminalizes taking the property or financial resources of a dependent adult for the
use of the defendant or another through "[u]ndue influence, coercion, harassment, duress,
deception, false representation, false pretense or without adequate consideration to such
dependent adult." See State v. Mayfield, No. 121,552, 2021 WL 935715, at *2 (Kan. App.
2021) (unpublished opinion) ("Without parsing the statutory language too finely, we
recognize the Legislature intended K.S.A. 2014 Supp. 21-5417[a][2][A] to criminalize a
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wide range of ways to divert or take the financial resources of a dependent adult, such as
the 'use' of those resources.").
Even assuming, without deciding, that restitution might be owed to someone other
than a victim of the crime of conviction, assessment of restitution for the nursing home
arrearage would only be appropriate if Union's crime of conviction was the proximate
cause of the nursing home's damage or loss. See State v. Martin, 308 Kan. 1343, 1352,
429 P.3d 896 (2018) ("At the restitution hearing, the district court must first determine
which of the claimed damages were caused by Martin's crimes of conviction."). For
proximate cause to exist, Union's specific crime must have been the but-for cause of
Riverbend's damage. See State v. Miller, 51 Kan. App. 2d 869, 874, 355 P.3d 716 (2015)
("But our statutes do not provide for restitution orders beyond those caused by the crime
of conviction without the defendant's agreement.").
After a searching review of the record, we conclude no evidence shows Union's
crime of conviction caused the Riverbend bill or caused this bill to go unpaid. The
Riverbend bill was caused by Miller's independent need for care. And the State presented
no evidence that Union's use of Miller's financial resources led to the outstanding debt.
Union's crime and the unpaid bill are two independent and unrelated events. Put
differently, Union's misuse of Miller's money was not necessary for the bill's existence.
The outstanding bill did not result from Union's crime.
Unlike here, causation in other cases has been found when the crime of conviction
caused cascading effects. See, e.g., Arnett I, 307 Kan. at 652-56 (finding property loss
from thefts, damage to a home caused by the burglary, and a homeowner's out of pocket
expenses were causally related to the crime of conspiracy to commit burglary, even
though the defendant did not personally commit the burglary but loaned the burglars her
mother's vehicle to commit the crime); State v. Wills, No. 122,493, 2021 WL 5143798, at
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*2-5 (Kan. App. 2021) (unpublished opinion) (finding victims' lost wages for part-time
jobs, costs associated with hypnosis and therapy appointments, and expended sick and
vacation leave were causally related to the crimes of aggravated sexual battery and
aggravated domestic battery); State v. Boyd, No. 118,925, 2019 WL 2312875, at *11-12
(Kan. App. 2019) (unpublished opinion) (finding restitution order for a lost Pell Grant
was permissible because the lost grant was caused by psychological effects of the sexual
assault crimes of conviction).
The district court's restitution order provided no analysis of causation and the
Riverbend restitution award. That said, the panel concluded the following pieces of
evidence supported the causation finding: "Union's admission that he was responsible for
the bill, Racklyeft's testimony that Union was supposed to pay the bill as Miller's power
of attorney, and the undisputed evidence on the amount of the bill." Union, 2022 WL
12127306, at *4. But this evidence only suggests Union was responsible for paying the
bill. It does not suggest Union's crime caused the bill to accrue or caused the bill to go
unpaid.
Accordingly, we find insufficient proof of causation because there is not
substantial competent evidence supporting the State's position that Union's crime was the
cause-in-fact of Riverbend's unpaid bill. We thus need not consider legal cause. We
vacate the portion of the restitution order directing Union to pay Riverbend $7,632.74.
Walmart Purchases and ATM Withdrawals
Union next asserts the district court erroneously ordered him to pay one-half of all
Walmart purchases and one-half of all ATM withdrawals. The crux of his argument is
that the court's order is "speculative," and Union suggests the burden of proof was
erroneously shifted, causing him to prove the proper use of the funds. He asserts the only
12
evidence the district court could have relied upon was from Racklyeft, who testified she
did not know what Union purchased at Walmart and did not know how he used the
money withdrawn from the ATMs. While the district court may have found that Union's
uncorroborated assertions of appropriate purchases lacked credibility, Union asserts the
burden is the State's to prove wrongdoing, not his to prove the purchases were for Miller's
benefit.
The panel found this argument unpersuasive. It asserted "there was ample
circumstantial evidence to support the district court's finding that the funds were not for
Miller's benefit." Union, 2022 WL 12127306, at *4. We agree the evidence from the
restitution hearing supports the district court's findings that Union misused at least some
of Miller's funds. For example, Union testified that he made many liquor purchases even
though Union did not drink and conceded that he improperly used her money to buy
shoes. And Union testified that while Miller was in Riverbend receiving care for all her
needs, he took Miller's car to Minnesota, used her money for gas, and used her money to
register the vehicle in Minnesota, all with no ascertainable benefit to anyone other than
himself.
Further, Union's testimony supported the district court's finding that he failed to
properly account for his expenditures. The court considered Union's testimony that he
tried to find the rental company to verify rent payments, but the company had apparently
changed buildings and disconnected its phone line. And the court heard Union explain
that he had kept records of how he and Miller split costs but had lost those records. After
hearing this testimony, the district court concluded "there is clear and convincing
circumstantial evidence that [Union] spent a significant portion of Ms. Miller's money on
himself" and that it was "likely he used cash as a way to conceal this improper spending."
13
But we also agree with Union that the State bears the burden of identifying the
restitution award amount with specificity. See State v. Smith, 317 Kan. 130,138-40, 526
P.3d 1047 (2023) (observing the district court likely erroneously imposed a $4,100
restitution award when the evidence only supported a $3,200 restitution award). Union is
correct the evidence at the restitution hearing, including Racklyeft's testimony, did not
identify how the ATM withdrawals were spent or what was purchased at Walmart, so
there is no evidence in the record at the restitution hearing that specifically supports the
district court's assessment of one-half rather than, say, one-third or two-thirds of the
purchases and withdrawals.
Accordingly, we cannot affirm the district court and panel on this evidence alone.
But we conclude the portion of the restitution order owed to Miller is supported by
substantial competent evidence when considering Union's no contest plea, the well-
pleaded facts of the charging document, and the district court's finding of guilt.
Union entered a plea of no contest to the statutory version of mistreatment of a
dependent adult. This crime contains an element requiring proof beyond a reasonable
doubt that the accused misappropriated at least $25,000, but no more than $100,000, from
the victim to make the crime of conviction a level 5, person felony. Accordingly, Union
did not contest the element of the crime of conviction that he unlawfully took between
$25,000 and $100,000 from Miller.
A no contest plea "is 'a plea by which a defendant does not expressly admit his
guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of
the case to treat him as if he were guilty.'" State v. Case, 289 Kan. 457, 461, 213 P.3d 429(2009) (quoting Roberts, The Mythical Divide Between Collateral and Direct
Consequences of Criminal Convictions, 93 Minn. L. Rev. 670, 729-30 [2008]); see also
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K.S.A. 22-3209(2) ("A plea of nolo contendere is a formal declaration that the defendant
does not contest the charge.").
A sentencing court may consider the elements of a charged crime as met following
a no contest plea. See State v. Holmes, 222 Kan. 212, 214, 563 P.2d 480 (1977) ("Under
[K.S.A. 22-3209(2)] when a court accepts a tendered plea of nolo contendere and
adjudges a finding of guilt thereon, the defendant at that point has been convicted of the
offense covered by the plea of nolo contendere."). Notably, K.S.A. 22-3209(2) prevents a
defendant's no contest plea from being used against them "as an admission in any other
action based on the same act." (Emphasis added.) Union's no contest plea could not, for
example, be used against him in a later civil action based on the same acts in the charging
document. 21 Am. Jur. 2d Criminal Law § 645 ("A plea of nolo contendere is used by the
accused in criminal cases to save face and avoid exacting an admission that could be used
as an admission in other potential or subsequent litigation, whether civil or criminal.").
But by making a no contest plea "the offender admits to all of the well-pleaded
facts of the information for purposes of the case." (Emphasis added.) Farris v. McKune,
259 Kan. 181, 194, 911 P.2d 177 (1996); State v. Gibson, No. 125,769, 2024 WL
3219339, at *5 (Kan. App. 2024) (unpublished opinion). Restitution is part of a criminal
sentence, which is part of the criminal case. See State v. Johnson, 309 Kan. 992, 996, 441
P.3d 1036 (2019) ("Restitution is part of a sentence."); Mitchell v. United States, 526 U.S.
314, 328, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) (noting "[a] sentencing hearing is
part of the criminal case"). And here, the First Amended Information includes the well-
pleaded allegation concerning the element of the crime of mistreatment of a dependent
adult addressing the value of what Union took from Miller—"at least $25,000 but less
than $100,000" of Miller's personal property or financial resources. Because of Union's
no contest plea, this essential element, well-pleaded in the charge, may be considered
when evaluating the sufficiency of the evidence of the restitution award.
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We therefore conclude Union misused between $25,000 and $100,000 of Miller's
funds based on his no contest plea and the court's subsequent finding of guilt. The no
contest plea and the elements of the crime of conviction provide substantial competent
evidence that, minimally, Union caused $25,000 in damage or loss to Miller. See Spotts
v. State, No. 107,909, 2013 WL 2991294, at *3 (Kan. App. 2013) (unpublished opinion)
(explaining a "no contest plea prevents [a defendant] from contesting the factual
assertions alleged in the amended complaint").
So there is reliable evidence supporting the restitution award. Though Union
argues the district court did not have reliable evidence to support how the court calculated
the award, this argument is obviated by Union's no contest plea, which established the
element requiring the value of the property taken to be at least $25,000. Not including the
Riverbend award, the district court ordered Union to pay $23,878.52, slightly less than
the lower limit of his crime of conviction. We therefore affirm the restitution award owed
to Miller.
The Riverbend restitution order is vacated. The rest of the restitution order is
affirmed.
Judgment of the Court of Appeals affirming the district court is affirmed in part
and vacated in part. Judgment of the district court is affirmed in part and vacated in part.
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