State v. McBride ( 2022 )


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  •                           NOT DESIGNATED FOR PUBLICATION
    No. 124,645
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    KARIE LANE MARTIN MCBRIDE,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed December 30, 2022.
    Affirmed.
    Emily Brandt and Bryan Cox, of Kansas Appellate Defender Office, for appellant.
    Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
    Before ARNOLD-BURGER, C.J., GARDNER and CLINE, JJ.
    PER CURIAM: Karie Lane Martin McBride violated his probation by failing to pay
    restitution as ordered by the district court. He now appeals, arguing the restitution portion
    of his sentence should be vacated because the district court lacked jurisdiction to impose
    restitution at a separate hearing. Because we find that the district court properly continued
    sentencing to determine the amount of restitution, it retained jurisdiction to do so. As a
    result, we affirm.
    1
    FACTUAL AND PROCEDURAL HISTORY
    After being arrested and charged with fleeing from police in a vehicle he did not
    own, McBride ultimately pled no contest to two counts of fleeing and eluding law
    enforcement. Under the plea agreement, McBride acknowledged he would "pay
    restitution if requested [by the State] . . . and that the sentencing for this case will not be
    considered as complete until such time as restitution is assessed by the Court or agreed
    upon by the parties."
    At sentencing the parties asked the district court to follow the plea agreement as to
    the length of sentence by imposing consecutive sentences of 15 and 7 months—for a total
    controlling sentence of 22 months—and McBride argued for a dispositional departure.
    The State also asked the court to impose "standard costs," and for the court to impose
    total restitution of $12,585.03 for damage to the vehicle McBride used to commit his
    crimes, but noted "[m]aybe it wasn't agreed upon, but it was indicated that the State will
    request it."
    McBride's counsel opposed the amount of restitution, noting that the plea
    agreement left restitution up to the agreement of parties or as assessed by the court.
    Defense counsel explained that McBride would agree to $2,845.08 in restitution because
    he believed that to be the amount of damage caused by his offenses. Defense counsel
    asked the court to consider holding a separate evidentiary hearing to determine the
    amount of restitution and "reserve jurisdiction for that purpose and pronounce sentence
    today." The State responded, "I think that the court can keep restitution open as long as
    it's clear for today's journal entry that sentencing is not complete," and that since the
    parties disagreed on the amount, holding a separate hearing for restitution was "the best
    thing to do."
    2
    After the district court asked for clarification of part of the State's restitution
    request, defense counsel offered to provide a copy of a letter he had sent to the State
    detailing the agreed-upon amounts. The court said, "That's okay. If we're going to have a
    separate hearing, then we'll reserve all that for a different time. I just wanted to help put
    the State on notice to what the issues are, and you're telling me you have already done
    that." The court then allowed McBride to make an allocution before imposing sentence.
    Although the district court followed the plea agreement as to the individual prison
    terms, the court decided to order the sentences to run concurrent for a total controlling
    prison sentence of 15 months. The court also agreed to grant McBride's request for a
    dispositional departure and ordered him to serve a 12-month probation term. The court
    ordered McBride to pay court fees and costs, including the full amount of Board of
    Indigents' Defense Services attorney fees, but stated:
    "[J]ust to be clear on the issue of restitution, the court is going to hold off on that and we
    need to schedule a restitution hearing is what it sounds like. So I will leave the sentencing
    open knowing that the restitution is going to be determined by the court at a future date."
    After advising McBride of his right to appeal, the district court then discussed
    scheduling an evidentiary hearing for restitution. After inquiring how much time the State
    would need, the court said, "Okay. We'll get something scheduled and be in touch[,]" and
    closed the hearing. Immediately following the hearing, the court entered a minute sheet
    order reciting only the length of McBride's sentence.
    McBride began serving his probation term the day of sentencing. He signed an
    order of intensive supervision probation, which included monthly payment of costs
    "assessed by the Court" as a probation condition, listing the fees in the amounts imposed
    at the hearing but listing restitution as "$TBD."
    3
    As promised, the district court scheduled a restitution hearing for about a month
    later. The day before that hearing, the State requested a continuance so that the parties
    could "attempt[] to resolve the issue of restitution without the need for a hearing." The
    court granted the continuance and entered an order—which was approved by McBride's
    counsel—specifying the "matter will be reset, if necessary, to a date and time agreed to
    by the Court and the parties."
    The district court held the restitution hearing approximately three months after the
    first sentencing hearing. McBride waived his right to be personally present and appeared
    by Zoom, while the attorneys were present in the courtroom. The court began by
    confirming with counsel "that we have previously done the sentencing . . . [a]nd at this
    time we continued it for the issue of restitution." The court also noted that it had imposed
    court costs and fees "when we completed the sentencing."
    The parties presented evidence and called witnesses. In short, the State's witnesses
    testified that the vehicle McBride used to flee from the officers suffered both cosmetic
    and mechanical damage resulting in a total insurance claim of $12,585.03, with the
    vehicle's owner having paid a $500 deductible. McBride agreed that the vehicle suffered
    cosmetic damages of $2,845.08 but disputed whether he caused the mechanical damage
    to the vehicle.
    After considering the parties' arguments, the district court found there was
    substantial and competent evidence to support ordering the full amount of restitution
    requested by the State. After noting that McBride had about eight months left on his
    probation term, the court said that requiring McBride to pay $1,500 a month "is not going
    to be workable." After consulting the parties, the court decided to order McBride to pay
    restitution "in full prior to the termination of probation." The court again advised
    McBride of his right to appeal the sentence, noting "that's going to be from today, right,
    since we're talking about the restitution issue?" Following the hearing, the court filed the
    4
    journal entry of sentencing, which showed two dates under sentencing: "10/9/2020" and
    "02/01/2021 (Restitution Hearing)."
    Eight months later, as McBride's probation was ending, his probation officer filed
    a violation report and affidavit, listing McBride's failure to make monthly payments as
    the only alleged violation, noting that he still owed the full amount of restitution imposed.
    McBride admitted he had made no restitution payments during his probation term. The
    State recommended the court reinstate and extend probation for another 12 months, while
    McBride asked the court to consider sending the unpaid amount of restitution to
    collections and allow his probation to terminate. The court decided to extend McBride's
    probation for 12 months.
    McBride timely appealed.
    ANALYSIS
    McBride argues that the district court imposed an illegal sentence when it ordered
    him to pay restitution at a separate hearing without explicitly bifurcating or continuing
    sentencing to retain jurisdiction. Although he is appealing from the order extending his
    probation, he is challenging the legality of his sentence for the first time on appeal.
    While typically appellants cannot raise new issues on appeal, "certain issues, such
    as subject matter jurisdiction or an illegal sentence, can be raised at any time regardless
    of whether the issue was presented to the district court." State v. Johnson, 
    309 Kan. 992
    ,
    995, 
    441 P.3d 1036
     (2019); see K.S.A. 2021 Supp. 22-3504(a) ("The court may correct
    an illegal sentence at any time while the defendant is serving such sentence."). Restitution
    is part of a defendant's sentence. State v. Hall, 
    298 Kan. 978
    , 983, 
    319 P.3d 506
     (2014);
    see also State v. Eubanks, 
    316 Kan. 355
    , 360, 
    516 P.3d 116
     (2022) (considering illegal
    5
    sentence challenge based on restitution order for first time on appeal). As a result,
    McBride can challenge the legality of his restitution order on appeal for the first time.
    Whether a sentence is illegal as defined by K.S.A. 22-3504 presents a question of
    law over which we exercise unlimited review. State v. Sartin, 
    310 Kan. 367
    , 369, 
    446 P.3d 1068
     (2019). Relevant to this appeal, Kansas law defines an illegal sentence in part
    as one "[i]mposed by a court without jurisdiction." K.S.A. 2021 Supp. 22-3504(c)(1).
    Since McBride's argument relates to jurisdiction, that determination also presents a
    question of law subject to unlimited review. State v. Lundberg, 
    310 Kan. 165
    , 170, 
    445 P.3d 1113
     (2019).
    McBride claims his sentence is illegal because the district court lacked jurisdiction
    to impose restitution after the first hearing. As support, he relies on a trio of cases issued
    by the Kansas Supreme Court in 2014: Hall, 
    298 Kan. 978
    ; State v. Frierson, 
    298 Kan. 1005
    , 
    319 P.3d 515
     (2014); and State v. Charles, 
    298 Kan. 993
    , 
    318 P.3d 997
     (2014).
    In Hall and Frierson our Supreme Court held that "[b]ecause restitution
    constitutes a part of a defendant's sentence, . . . [u]ntil any applicable restitution amount
    is decided, a criminal defendant's sentencing is not complete." Hall, 
    298 Kan. 978
    , Syl.
    ¶ 1; Frierson, 
    298 Kan. 1005
    , Syl. ¶ 7. Yet in reaching that holding, the court recognized
    it was still possible for the sentencing court to hold a separate hearing to establish
    restitution and retain subject-matter jurisdiction over sentencing, explaining that courts
    must "specifically order the continuance or bifurcation" so that it may decide restitution
    at a later hearing. Hall, 
    298 Kan. 978
    , Syl. ¶ 2; Frierson, 
    298 Kan. 1005
    , Syl. ¶ 8.
    In both cases, the Kansas Supreme Court upheld the restitution orders for similar
    reasons. At the sentencing hearing in Hall, the district court ordered restitution to remain
    open for 30 days at the State's request but did not hold a restitution hearing until 81 days
    later. At that hearing, Hall and his counsel were both present. Although the Kansas
    6
    Supreme Court disfavored allowing a "functional continuance" in this way, the court
    nonetheless upheld the restitution order imposed at the second hearing. Hall, 298 Kan. at
    987.
    Similarly, in Frierson, the district court imposed an initial amount of restitution
    based on a theft but held restitution open for 30 days with the agreement of the parties so
    they could settle on the correct amount for injuries sustained by the victim. Within that
    time but without holding a hearing, the court entered a restitution order which defense
    counsel signed. On appeal, the Kansas Supreme Court upheld the restitution order,
    explaining that "we are satisfied that the spirit, if not the letter, of the procedure we set
    out for future cases in Hall was satisfied." Frierson, 298 Kan. at 1021.
    Unlike these decisions, the Kansas Supreme Court vacated the restitution order in
    Charles. In that case, the district court announced at sentencing that restitution "'as
    contained within the presentence report will be ordered,'" without realizing that the PSI
    report detailed specific restitution amounts for some victims but listing the amount for
    one victim as "'to be determined.'" Charles, 
    298 Kan. at 995
    . The defendant promptly
    appealed and nearly a month later the court entered a restitution order requiring the
    defendant to pay the specific amounts listed in the PSI but also setting an amount for the
    restitution owed to the remaining victim. On appeal, the Kansas Supreme Court found
    that the Hall and Frierson decisions compelled it to vacate the restitution ordered for the
    remaining victim because the district court did "nothing" to preserve jurisdiction or hold
    sentencing open. 298 Kan. at 1002 (noting there are no "'magic words'" needed to
    continue sentencing but doing "more than nothing has nevertheless been the rule"); see
    also State v. Davis, 
    50 Kan. App. 2d 725
    , 727-28, 
    333 P.3d 190
     (2014) (upholding
    restitution order where court stated restitution was "'to be determined'" at a later hearing
    on initial journal entry).
    7
    McBride's argument hinges on his belief that the district court did not do enough at
    the October 2020 hearing to preserve jurisdiction over restitution, by using imprecise
    language and not explicitly ordering a continuance or bifurcating the sentencing as
    anticipated in Hall and Frierson. The State responds that the record shows the parties and
    court agreed that restitution would be addressed by the court at a later hearing, and that
    the court stating there would be a "'separate hearing'" on restitution is the "functional
    equivalent of bifurcating the sentencing hearing."
    Put simply, the procedures taken by the district court here more closely align with
    the facts of Hall and Frierson than Charles and show the court did enough to preserve
    jurisdiction. Although the court closed the first hearing without stating a specific timeline
    for addressing restitution—like the 30-day extensions in Hall and Frierson—the record
    shows that everyone knew McBride's sentencing would not be complete until restitution
    was resolved. At the request of both parties, the court explicitly stated it would "leave the
    sentencing open knowing that the restitution is going to be determined by the court at a
    future date." Likewise, McBride agreed to pay restitution in the plea agreement and his
    signed probation order reflected that the amount of restitution was "$TBD." Moreover,
    McBride never objected to any perceived delays in scheduling the restitution hearing and
    fully participated in the restitution hearing as if he understood his sentence was not yet
    complete. In sum, the district court here did "more than nothing" to preserve jurisdiction
    over restitution. See Charles, 
    298 Kan. at 1002
    .
    As a final note, McBride also mentions that the district court advised him of his
    right to appeal the sentence after the first hearing and suggests that this fact demonstrates
    his sentence became a final and effective judgment at that time. The Kansas Supreme
    Court directly addressed this argument in Hall by holding that "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." Hall,
    298 Kan. at 988. Thus, even if McBride had filed a notice of appeal right after the first
    8
    hearing—which he did not do—the district court's erroneous recitation of the notice of
    appeal deadline would not have changed the outcome here.
    For these reasons, we conclude that the district court had the subject-matter
    jurisdiction to enter its restitution order at a second hearing. Thus, we affirm McBride's
    sentence.
    Affirmed.
    9
    

Document Info

Docket Number: 124645

Filed Date: 12/30/2022

Precedential Status: Non-Precedential

Modified Date: 1/13/2023