State v. Haugland ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,324
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CHRISTOPHER S. HAUGLAND,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; MICHAEL D. GIBBENS, judge. Opinion filed December
30, 2021. Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Meredith D. Mazza, assistant county attorney, Todd Thompson, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Christopher S. Haugland appeals his sentence following his 2019
conviction of felony theft. Haugland claims the district court's sentencing order that he
pay $15,000 in restitution is illegal because it included no plan for payment. There have
been some twists and turns along the way affecting the single issue Haugland raises on
appeal. For the reasons we state below, we find the restitution order is not an illegal
sentence and affirm the district court's judgment.
1
FACTS
In April 2019, the State charged Haugland with one count each of felony theft,
identity theft, and forgery for impersonating his brother and withdrawing $101,000 from
his brother's banking account. Haugland later pled no contest to one count of felony theft
and the State dismissed the other counts. As part of the plea agreement, Haugland
acknowledged that the district court could require him to pay restitution.
The presentence investigation report included a victim statement from the bank
that Haugland defrauded to steal his brother's money. The bank requested $15,000 in
restitution because of the time and resources used in addressing Haugland's crimes,
increased regulatory scrutiny, and negative media attention. In a motion for dispositional
departure, Haugland acknowledged "there is $15,000 in restitution to be paid and
Defendant fully intends to reimburse the victims that money. Defendant wants the
opportunity to get a job and reimburse the money owed."
At sentencing on November 6, 2019, the district court imposed a 31-month prison
sentence and ordered Haugland to pay $15,000 in restitution. The district court denied
Haugland's departure motion. When imposing restitution, the court stated simply that
"[t]he restitution is set at $15,000." Haugland timely appealed his sentence.
ANALYSIS
Haugland argues that the district court imposed an illegal sentence because it
failed to set up a payment plan for restitution under K.S.A. 2018 Supp. 21-6604(b). As a
result, he asks this court to vacate the restitution order and remand to allow the district
court to set a payment plan. The State argues that the restitution order and sentence is not
illegal because a plan for payment of restitution is not required under the statute.
2
To start, it bears mentioning that Haugland is challenging the legality of his
restitution order for the first time on appeal. Typically, appellants cannot raise issues on
appeal that they did not raise below. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987(2014). But "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. 2020 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). Thus, Haugland can make his claim on appeal.
Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over
which the appellate court has unlimited review. State v. Sartin, 310 Kan. 367, 369, 446
P.3d 1068 (2019). A sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed by
a court without jurisdiction; (2) it does not conform to the applicable statutory provisions,
either in character or the term of punishment; or (3) it is ambiguous about the time and
manner in which it is to be served. State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972(2019). A change in the law after the sentence is pronounced and after any direct appeal
is concluded does not render that sentence illegal. K.S.A. 2020 Supp. 22-3504(c).
To determine whether Haugland's restitution order was illegal, this court must first
interpret the relevant statute. This court exercises unlimited review over questions of
statutory interpretation because that presents a question of law. State v. Martin, 308 Kan.
1343, 1350, 429 P.3d 896 (2018).
Haugland claims his sentence is illegal because it does not conform to the
applicable statutory provisions and because it is ambiguous about the time and manner in
which it is to be served. He contends the district court needed to establish a payment plan
when imposing restitution at sentencing, as another panel of this court held in State v.
Roberts, 57 Kan. App. 2d 836, 844-45, 461 P.3d 77 (2020), vacated and remanded No.
3
120,377, 2020 WL 8269363, at *1 (order filed September 29, 2020). The same version of
the statute analyzed by the Roberts panel controlled when Haugland originally committed
his crimes. See State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ("[T]he
legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time
the sentence was pronounced."). That statute provides:
"(1) . . . [T]he court shall order the defendant to pay restitution . . . unless the
court finds compelling circumstances which would render a plan of restitution
unworkable. . . . If the court finds a plan of restitution unworkable, the court shall state on
the record in detail the reasons therefor.
"(2) . . . If, after 60 days from the date restitution is ordered by the court, a
defendant is found to be in noncompliance with the plan established by the court for
payment of restitution, . . . the court shall assign an agent . . . to collect the restitution on
behalf of the victim." (Emphases added.) K.S.A. 2018 Supp. 21-6604(b).
But soon after this court issued Roberts, the Legislature amended the statute,
effective June 11, 2020, to remove all references to a "plan." See L. 2020, ch. 9 § 1. The
statute now provides:
"(1) . . . . Restitution shall be due immediately unless: (A) The court orders that
the defendant be given a specified time to pay or be allowed to pay in specified
installments; or (B) the court finds compelling circumstances that would render
restitution unworkable, either in whole or in part. . . . If the court finds restitution
unworkable, either in whole or in part, the court shall state on the record in detail the
reasons therefor.
"(2) . . . If, after 60 days from the date restitution is ordered by the court, a
defendant is found to be in noncompliance with the restitution order, . . . the court shall
assign an agent . . . to collect the restitution on behalf of the victim." (Emphases added.)
K.S.A. 2020 Supp. 21-6604(b).
4
The Legislature also added subsection (b)(3), which provides:
"If a restitution order entered prior to the effective date of this act does not give
the defendant a specified time to pay or set payment in specified installments, the
defendant may file a motion with the court prior to December 31, 2020, proposing
payment of restitution in specified installments. The court may recall the restitution order
from the agent assigned pursuant to K.S.A. 20-169, and amendments thereto, until the
court rules on such motion. If the court does not order payment in specified installments
or if the defendant does not file a motion prior to December 31, 2020, the restitution shall
be due immediately." K.S.A. 2020 Supp. 21-6604(b)(3).
Finally, the Legislature included a retroactivity provision, which provides that
"[t]he amendments made to this section by this act are procedural in nature and shall be
construed and applied retroactively." K.S.A. 2020 Supp. 21-6604(v).
One day after Haugland filed his reply brief, the Kansas Supreme Court granted a
petition for review in Roberts and summarily vacated and remanded the case to the panel
to consider the amended statute. Roberts, No. 120,377, 2020 WL 8269363, at *1 (order
filed September 29, 2020). After issuing a show cause order directing the parties to
address mootness as a result of the statutory changes, this court disposed of Roberts by
remanding the case to the district court to allow Roberts to file a motion for a payment
plan under newly added subsection (b)(3).
Because of the developments in the law since Haugland first docketed his appeal,
we may need to consider several issues to resolve his illegal sentence claim, including
whether: (1) the restitution order is illegal under the prior version of the statute because it
omits a payment plan; (2) retroactively applying the amended statute violates his
constitutional and statutory rights; and (3) remand would be appropriate to allow
Haugland a chance to request a payment plan under the amended statute.
5
Was the restitution order legal under the 2018 version of the statute?
Haugland argues the restitution order is illegal because it fails to conform to the
statutory language of K.S.A. 2018 Supp. 21-6604(b). As mentioned, Haugland relies
heavily on Roberts, which held that "[t]he language of K.S.A. 2018 Supp. 21-6604(b)(2)
is direct and unambiguous—the court must establish a plan 'for payment of restitution.'"
Roberts, 57 Kan. App. 2d at 844.
In reaching that conclusion, the Roberts panel distinguished a prior unpublished
Court of Appeals decision because of specific language in K.S.A. 2018 Supp. 21-
6604(b)(2) that addressed "noncompliance with the plan established by the court for
payment of restitution." (Emphasis added.) Roberts, 57 Kan. App. 2d at 838, 841; see
also State v. Garza, No. 118,840, 2019 WL 1412444, at *5 (Kan. App.) (unpublished
opinion) (interpreting "plan of restitution" used elsewhere in the statute consistent with
prior caselaw that restitution becomes due only after a defendant is released from prison
when the district court fails to make clear at sentencing that restitution is due
immediately), rev. denied 310 Kan. 1066 (2019). According to the Roberts panel, the
language emphasizing that a court must evaluate "the plan established by the court" when
determining noncompliance with a restitution order necessarily requires establishment of
a payment plan at sentencing. 57 Kan. App. 2d at 839.
But Haugland's continued reliance on Roberts is problematic. Admittedly, when
Haugland filed his briefs, Roberts remained at least persuasive authority because the
petition for review in that case remained pending when he filed his reply brief. See
Supreme Court Rule 8.03(k)(1) (2021 Kan. S. Ct. R. 54) (Court of Appeals decisions not
binding while petition for review still pending and citation to such decisions must say the
case is not final). But on September 29, 2020, the Supreme Court granted review and
summarily vacated the Court of Appeals opinion in Roberts and remanded the case to
consider the statutory amendments. Roberts, No. 120,377, 2020 WL 8269363, at *1
6
(order filed September 29, 2020). This court disposed of the case by remanding to the
district court to allow Roberts to file a motion for a payment plan under the amended
statute. As a result, Roberts is no longer good law because the procedural handling of the
case negated the panel's decision. See Supreme Court Rule 8.03(k)(2) (2021 Kan. S. Ct.
R. 60) ("If a petition for review is granted, the Court of Appeals decision has no force or
effect, and the mandate will not issue until disposition of the appeal on review.").
Moreover, a recent Kansas Supreme Court decision seems to have implicitly
invalidated the bulk of the Roberts panel's statutory interpretation analysis. In State v.
Arnett, 314 Kan. 183, 496 P.3d 928 (2021), our Supreme Court considered the
constitutionality of portions of the criminal restitution statutes in Kansas. See also State v.
Owens, 314 Kan. 210, 496 P.3d 902 (2021) (decided same day and referencing Arnett);
State v. Robison, 314 Kan. 245, 496 P.3d 892 (2021) (same). Our Supreme Court held
that Kansas' current criminal restitution scheme violated section 5 of the Kansas
Constitution Bill of Rights insomuch as the statutes made a criminal restitution order
equivalent to a civil judgment. Arnett, 314 Kan. at 194. Rather than invalidate every
restitution order made outside the purview of a jury under the statute, our Supreme
Court's chosen remedy was to sever the offending provisions of the criminal restitution
scheme. Arnett, 314 Kan. at 195.
One of those provisions was K.S.A. 21-6604(b)(2), which states that the order of
restitution shall be a judgment against the defendant that may be collected by the court by
garnishment or other execution as on judgments in civil cases. The Arnett court explained
that not all the language of subsection (b)(2) was unconstitutional, but that severing the
entire subsection was necessary because "it is too difficult to uncouple the acceptable
provisions from those provisions that violate section 5." Arnett, 314 Kan. at 196. Notably,
the Roberts panel highlighted the significance of the language used in the 2018 version of
subsection (b)(2)—specifically "the plan established by the court for payment of
restitution"—as supporting its conclusion that the statute required the court to establish a
7
payment plan for restitution at sentencing. K.S.A. 2018 Supp. 21-6604(b)(2); 57 Kan.
App. 2d at 838. Although the Arnett court did not distinguish between the pre- and post-
2020 versions of subsection (b)(2) in its constitutionality analysis, the "offending"
language that needed severance was not substantively changed, so it makes sense that
Arnett's holding applies even to the 2018 version. Arnett, 314 Kan. at 195. In other
words, severing subsection (b)(2) effectively voids Roberts regardless of any statutory
changes because the panel's analysis hinged on the differing language that referred to "the
plan established by the court for payment of restitution" versus "plan of restitution" used
elsewhere in the statute.
We are aware that the defendant in Arnett has filed a notice of intent to file a
petition for a writ of certiorari to the United States Supreme Court, and so Arnett is not
final. But the potential certiorari petition will only challenge the holding in Arnett that the
Kansas criminal restitution scheme does not violate the right to a jury trial under the
Sixth Amendment to the United States Constitution under the principles set forth in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its
progeny. Haugland makes no claim that the restitution order in his case violates the Sixth
Amendment. And any ruling on this issue will not affect the holding in Arnett that the
Kansas criminal restitution scheme violates section 5 of the Kansas Constitution Bill of
Rights, and the court's remedy to strike the offending language in K.S.A. 2020 Supp. 21-
6604(b)(2).
Haugland's argument that his restitution order was illegal under the prior version
of the statute because it lacked a payment plan begins and ends with the decision by the
Roberts panel. But that decision has since been vacated and effectively overruled because
of Arnett. Haugland provides no authority other than Roberts to support his claim that the
restitution order in his case amounts to an illegal sentence.
8
Haugland also recognizes that another panel of this court reached a contrary
conclusion in State v. Garza, No. 118,840, 2019 WL 1412444, at *5 (Kan. App. 2019)
(unpublished opinion), rev. denied 310 Kan. 1066 (2019). In that case, the panel
interpreted the phrase "plan of restitution" from K.S.A. 2017 Supp. 21-6604(b)(1)—
which is identical to the 2018 version—according to prior Kansas Supreme Court
caselaw which held that if a district court does not make it clear that the restitution is due
immediately, then it does not become due until the prisoner against whom the order is
entered is released from prison. 2019 WL 1412444, at *5 (citing State v. Alderson, 299
Kan. 148, 151, 322 P.3d 364 [2014]). Thus, the Garza panel concluded the "plan of
restitution" merely referred to the plan that required an inmate to begin paying restitution
upon their release from prison if not ordered otherwise. 2019 WL 141244, at *5; see also
K.S.A. 2017 Supp. 22-3717(n) (authorizing prisoner review board to order payment of
restitution as a condition of parole or postrelease supervision condition).
Another panel of this court recently addressed a similar challenge in the wake of
Roberts and concluded—in agreement with the Garza decision—that K.S.A. 2019 Supp.
21-6604(b) did not require the sentencing court to establish a payment plan when
imposing restitution. See State v. Jackson, No. 121,827, 2021 WL 4693244, at *16 (Kan.
App. 2021) (unpublished opinion). The Jackson panel emphasized that the Kansas
Supreme Court has never required establishment of a payment plan and has approved
restitution orders without payment plans. 2021 WL 4693244, at *16 (citing State v.
Alcala, 301 Kan. 832, 840, 348 P.3d 570 [2015] [restitution order which did not specify
monthly payments or when payments were to begin upheld]; Alderson, 299 Kan. at 151).
We find the reasoning expressed in Jackson and Garza to be persuasive, especially
considering the recent Arnett decision. Since the Roberts panel distinguished Garza
specifically because it failed to address language found in K.S.A. 2018 Supp. 21-
6604(b)(2), Arnett impacts that analysis as that language has now been severed from the
statute. The only remaining reference to a "plan of restitution" in the statute after Arnett is
9
found in (b)(1), which does not explicitly mention any sort of payment plan "established
by the court." K.S.A. 2018 Supp. 21-6604(b)(1).
Put another way, the 2018 version of the restitution statute does not require
establishment of a payment plan for restitution at sentencing. As a result, we find the
district court's restitution order was legal under the 2018 version because it clearly set out
the restitution amount as required by the statute. We need not rely on the fact that the
2020 amendments to the statute effectively overruled Roberts. Based on this finding, we
need not consider Haugland's claim that retroactively applying the 2020 amendments to
the statute violates his constitutional and statutory rights.
Is remand appropriate to allow Haugland to file a motion for a payment plan?
Haugland's reply brief asserts in the alternative that this court should remand to
allow him to file a motion for a payment plan under K.S.A. 2020 Supp. 21-6604(b)(3).
But Haugland may no longer have a right to request a payment plan under the amended
statute because the deadline has long passed.
Other panels of this court have found similarly in cases that considered the 2020
amendments. In State v. Logan, No. 122,116, 2021 WL 645929 (Kan. App. 2021)
(unpublished opinion), rev. denied 314 Kan. ___ (August 31, 2021), the defendant
successfully moved for a stay of his appeal and a remand to timely file a motion under
subsection (b)(3). At a hearing on remand, Logan purported to waive his right to have a
payment plan established "at that time." 2021 WL 645929, at *4-5. When the case
returned to the panel, it issued a decision and concluded that Logan waived his "sole"
statutory remedy under the amended statute. 2021 WL 645929, at *4-5. Relying on
Logan, another panel of this court recently rejected similar challenges where the 2020
amendments were enacted during pending cases in which the defendants failed to request
a stay or file a motion in the district court before the December 31, 2020 deadline. See,
10
e.g., Jackson, 2021 WL 4693244, at *18; State v. Barrett, No. 122,410, 2021 WL
4352530, at *5 (Kan. App. 2021) (unpublished opinion), petition for rev. filed October
25, 2021.
Haugland filed his reply brief in September 2020, but other than mentioning a
potential remand in that brief, he neither filed a request for stay of the appeal nor a
motion for a payment plan with the district court before the statutory deadline. Haugland
correctly states that the docketing of an appeal generally divests a district court of
jurisdiction to hear posttrial motions. State v. Smith, 278 Kan. 45, 51, 92 P.3d 1096(2004). But even if the district court could not exercise jurisdiction over a motion for a
restitution payment plan while an appeal was pending, Haugland still fails to show why
he failed to request a stay or a remand before the December 31, 2020 deadline.
Although this court did eventually stay briefing in February 2021, the stay was
merely to allow the State an opportunity to respond to the new arguments made in
Haugland's reply brief. See Supreme Court Rule 6.05 (2021 Kan. S. Ct. R. 37); see also
State v. McCullough, 293 Kan. 970, 984, 270 P.3d 1142 (2012) (appellant may not raise
new issues in a reply brief). And despite the State filing a motion requesting a stay of the
appeal and a remand to the district court two weeks later—to which Haugland did not
oppose—this court properly denied the motion because it was filed beyond the deadline.
Thus, we conclude Haugland waived his only avenue for relief under the amended statute
that would have allowed him to request a restitution payment plan.
In sum, Haugland fails to show that he is entitled to relief on his illegal sentence
claim. First, his restitution order was not illegal for lacking a payment plan for restitution
because even under the prior version of the statute, no payment plan was required. Then,
because he failed to file a motion requesting a payment plan before the statutory deadline,
he waived his right to any relief under the amended statute. The district court's restitution
order is a legal sentence, and Haugland has no right to any relief in this appeal.
11
Affirmed.
12