State v. Moore ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,428
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RICHARD JAMES MOORE JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed
September 17, 2021. Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GARDNER and CLINE, JJ.
PER CURIAM: Richard James Moore Jr. claims the district court had no
jurisdiction to issue a written restitution order since it did not specifically order restitution
during his sentencing hearing. He also challenges the constitutionality of the revised
Kansas Sentencing Guidelines Act (KSGA), which relies on judicial findings of a
defendant's criminal history. He claims the KSGA violates his right to a jury trial under
section 5 of the Kansas Constitution Bill of Rights and violates his right under the Sixth
and Fourteenth Amendments to the United States Constitution to have a jury decide facts
which enhance his criminal penalty.
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We reject Moore's constitutional challenges for the same reasons the Kansas
Supreme Court rejected similar arguments in State v. Albano, 313 Kan. 638, 487 P.3d
750 (2021). And we affirm Moore's sentence because we find the context of the district
court's comments at the sentencing hearing made it sufficiently clear that the court
ordered Moore to pay the restitution he agreed to pay in his plea agreement.
In October 2019, Moore pled guilty to aggravated battery, a severity level 7 person
felony. The written plea agreement, which Moore signed, called for Moore to pay $2,500
in restitution. At the sentencing hearing, the district court stated it would follow the terms
of the plea agreement. It imposed a 29-month underlying prison sentence but suspended
the sentence and ordered 24 months of probation. The district court did not pronounce a
specific restitution order from the bench during sentencing. But when assessing costs, it
waived the Board of Indigents' Defense Services (BIDS) fee based on the restitution
amount.
On the same day as the sentencing hearing, the district court issued a written
restitution order and a sentencing journal entry. The order required Moore to pay
restitution in the amounts of $2,000 to the victim and $500 to the Johnson County
Property Crime Compensation Fund. The sentencing journal entry, which defense
counsel signed, included the same restitution order.
On appeal, Moore claims the district court had no jurisdiction to issue a written
restitution order since it did not specifically order restitution during the sentencing
hearing. A party may raise issues of subject matter jurisdiction at any time. See State v.
Delacruz, 307 Kan. 523, 529, 411 P.3d 1207 (2018). Whether jurisdiction exists is a
question of law over which this court's scope of review is unlimited. State v. Smith, 304
Kan. 916, 919, 377 P.3d 414 (2016).
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Restitution constitutes part of a criminal defendant's sentence. State v. Martin, 308
Kan. 1343, 1349, 429 P.3d 896 (2018). Moore argues the district court did not include
restitution as part of his sentence since it did not specifically order restitution at the
hearing. He correctly notes a sentence is effective when pronounced from the bench, and,
after pronouncement, a district court generally loses jurisdiction to modify that sentence
except to correct mathematical or clerical errors. State v. Weekes, 308 Kan. 1245, 1249,
427 P.3d 861 (2018); see State v. Johnson, 309 Kan. 992, 996, 441 P.3d 1036 (2019).
While we agree the district court did not specifically say it was ordering
restitution, the context of the hearing reveals that it did. State v. Hill, 313 Kan. 1010, Syl.
¶ 4, 492 P.3d 1190 (2021) ("The meaning of a sentence may be derived from the context
of the entirety of the sentencing hearing."). As the State points out, the court stated it was
following the plea agreement when it pronounced its sentence. In that plea agreement,
Moore agreed to pay $2,500 in restitution. The court also waived the assessment of the
BIDS fee based on the restitution amount. And as the State also notes, Moore's counsel
signed the journal entry that ordered him to pay $2,500 in restitution, acknowledging the
parties understood restitution was part of Moore's sentence.
Under these circumstances, it was sufficiently clear to those present that the
district court was adopting all aspects of the plea agreement—including Moore's
agreement to pay $2,500 in restitution—as its sentence. This is particularly evident from
the court's modification of its cost assessment based on the restitution amount. While the
court could have been more precise in its language, its meaning was evident. We affirm
the restitution order and sentence.
Moore also newly challenges the constitutionality of the KSGA, K.S.A. 2020
Supp. 21-6801 et seq., and the district court's ability to make "findings of an offender's
prior convictions to establish the presumptive sentence for a current crime of conviction."
Normally issues not raised before the district court cannot be raised on appeal. State v.
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Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Even so, we have recognized limited
exceptions to this general rule. Moore argues two of these exceptions apply here: (1) the
newly asserted theory involves only a question of law arising on proved or admitted facts
and is finally determinative of the case and (2) consideration of the theory is necessary to
serve the ends of justice or to prevent denial of fundamental rights. Johnson, 309 Kan. at
995. Moore argues his constitutional challenges involve purely questions of law and the
denial of his fundamental right to a jury. We will exercise our discretion to consider
Moore's arguments under these exceptions.
First, Moore argues section 5 of the Kansas Constitution Bill of Rights requires a
jury, not a judge, to determine penalty-enhancing prior conviction findings. Section 5
states that "[t]he right of trial by jury shall be inviolate." When interpreting section 5, the
Kansas Supreme Court has held it "'preserves the jury trial right as it historically existed
at common law when our state's constitution came into existence.'" Albano, 313 Kan. at
641 (quoting State v. Love, 305 Kan. 716, 734, 387 P.3d 820 [2017]). Moore claims that
"[p]rior to Kansas' statehood, American common law required any fact which increased
the permissive penalty for a crime—inclusive of an offender's prior criminal
convictions—to be proven to a jury." He contends the judicial determination of a
defendant's criminal history to increase a presumptive sentence violates the constitutional
right to jury trial as it existed at common law.
To support his claim, Moore cites Justice Clarence Thomas' concurrence in
Apprendi v. New Jersey, 530 U.S. 466, 501-09, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000). Moore concedes that, under the Apprendi majority, the government does not have
to prove prior conviction findings to a jury for sentencing purposes. Moore argues that
Justice Thomas' concurrence in Apprendi, however, references one Massachusetts
Supreme Court case and one Georgia Supreme Court case in which prior convictions that
increased penalties were elements of crimes that required findings by a jury. 530 U.S. at
507-09. These cases—Hines v. State, 26 Ga. 614 (1859), and Tuttle v. Commonwealth, 68
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Mass. 505 (1854)—predated Kansas' statehood of 1861. Moore argues Justice Thomas'
analysis validates his assertion that common law placed the right to decide prior
convictions in the province of the jury, not the court.
After Moore filed his brief, the Kansas Supreme Court rejected this argument,
which was also made by the defendant in Albano:
"[D]ecisions such as Tuttle and Hines held that the fact of a prior conviction needed to be
proven to a jury in those instances. But they did not indicate this holding rested on a pre-
existing common-law rule. And to the extent that these decisions could be said to support
the existence of a such a rule, none of these decisions indicate Kansas followed this rule
when our state Constitution came into existence." Albano, 313 Kan. at 654.
No authority supports Moore's assertion that section 5 guarantees a defendant the
right to have a jury determine prior convictions that increase the presumptive sentence.
See 313 Kan. at 657.
Because our Supreme Court has held that section 5 does not guarantee the right to
a jury to determine prior convictions, we reject Moore's argument.
Next, Moore argues the district court's determination of his prior convictions
violated his Sixth and Fourteenth Amendment rights under the United States
Constitution. He interprets Apprendi to require a jury to determine his prior convictions
under these constitutional provisions as well. While he acknowledges our Supreme Court
foreclosed his arguments in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), he
implies Ivory was wrongly decided. Yet, the Kansas Supreme Court continues to rely on
Ivory, even as recently as Albano. 313 Kan. at 643. We see no indication that our
Supreme Court is departing from Ivory, so neither will we. See State v. Rodriguez, 305
Kan. 1139, 1144, 390 P.3d 903 (2017) (noting Kansas Court of Appeals is duty-bound to
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follow Kansas Supreme Court precedent unless some indication court is departing from
previous position).
Because our Supreme Court has found the judicial determination of prior
convictions under the KSGA is constitutional under the Sixth and Fourteenth
Amendments, we reject this argument as well.
Affirmed.
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