State v. Futrell , 53 Kan. App. 2d 272 ( 2016 )

Atcheson, J.:

This case plunges us into yet another controversy on how district courts should fashion restitution awards imposed on convicted criminals. A majority of this panel departs from our colleagues’ view in State v. Miller, 51 Kan. App. 2d 869, Syl. ¶ 2, 355 P.3d 716 (2015), and holds that a defendant convicted of burglary may be ordered to pay restitution for property stolen during the course of the brealc-in—a result that seems both eminently logical and fully consistent with K.S.A. 2015 Supp. 21-6607(c)(2) by imposing restitution on a defendant for any loss caused by his or her crime of conviction. Judge Leben, as the author of Miller, not surprisingly disagrees. On this point, we affirm tire restitution order the Riley County District Court entered against Defendant Christopher Scott Futrell arising from a residential burglary.

But the panel unanimously reverses the district court’s restitution order with respect to a vehicular brealc-in unconnected to Futrell’s conviction for the residential burglary. We otherwise unanimously affirm the restitution order. Apart from the restitution issues, Futrell does not challenge his conviction and sentence.

Factual and Procedural History

Because Futrell disputes only the restitution order, we need not recount the details of his criminal conduct. We sketch those circumstances briefly.

Futrell was a disgruntled employee of Ryan Platt. Platt coordinated events, such as concerts and large private parties, and, as a result, often had to briefly hold large amounts of cash. While Platt was closing an event venue on January 31, 2015, someone broke into his SUV and took $6,220 in cash. The damage to the vehicle cost $303.41 to repair. About 3 weeks later, someone burglarized Platts home and stole his wife’s wedding ring and between $600 and $700 in cash. Repairs to the backdoor cost $250.

Platt identified Futrell as a likely suspect in light of their deteriorating work relationship. Law enforcement officers found the stolen wedding ring at Futrell’s home. In a single case, tire Riley County Attorney charged Futrell with burglaiy and theft in connection with the loss from Platts SUV and burglaiy and theft for the break-in at Platts house.

The County Attorney charged Futrell with criminal damage to property in a separate case for smashing his then-girlfriend’s smart-phone. The phone had a market value of about $500.

The County Attorney and Futrell, acting through his lawyer, negotiated a plea agreement. Futrell pled no contest to the burglary of Platt’s house, and the State dismissed all of the other charges in both cases. The written plea agreement outlined sentencing recommendations to the district court in anticipation of Futrell receiving probation. As to restitution, the agreement provided that “[t]he issue ... is open” and that “the State may ask for restitution for the victim” in the criminal damage to property case.

The district court accepted Futrell’s plea and later placed him on probation in conformity with tire recommendations in the agreement. The district court held an evidentiary hearing on restitution. The testimony conformed to what we have already outlined. So the district court ordered Futrell to pay Platt restitution for the damage to his SUV, the cash taken from the vehicle, the damage to his house, and the cash taken from there. The wedding ring was recovered, apparently undamaged, obviating the need for restitution. The district court also ordered Futrell to pay $500 to his girlfriend for the destruction of her smartphone. Futrell has timely appealed various aspects of the restitution order.

Legal Analysis

As provided in K.S.A. 2015 Supp. 21-6607(c)(2), a district court placing a criminal defendant on probation “shall order the defendant to ... malte reparation or restitution to the aggrieved party for the damage or loss caused by the defendants crime." The amount of restitution and how it should be paid largely rest within the district courts discretion and will be reviewed on appeal for abuse of that authority. See State v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016). A district court exceeds judicial discretion if it rules in a way no reasonable judge would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Before turning to the specific issues here, we outline some of the judicial gloss on the statute governing restitution orders. Defendants may be ordered to pay restitution only if the loss has been caused by their crimes of conviction unless they have agreed to pay restitution for crimes that were never charged or have been dismissed. State v. Dexter, 276 Kan. 909, Syl. ¶ 3, 80 P.3d 1125 (2003); State v. Chandler, No. 107, 111, 2013 WL 1234223, at *1-2 (Kan. App. 2013) (unpublished opinion). The Kansas Supreme Court has recognized the language in K.S.A. 2015 Supp. 21-6607(c)(2) does not require a direct causal link between the crime and the loss—an indirect connection may be sufficient. In discussing the predecessor to K.S.A. 2015 Supp. 21-6607(c)(2), the court said: “Although not all tangential costs incurred as a result of a crime should be the subject of restitution [citation omitted], there is no requirement that the damage or loss be ‘directly caused by the defendant s crime." State v. Hall, 298 Kan. 978, 990, 319 P.3d 506 (2014). It made the same point in State v. Hand, 297 Kan. 734, 739, 304 P.3d 1234 (2013) (“[T]he statute’s reference to damage or loss ‘caused by a defendants crime is not modified by the adverb ‘directly.’”).

Over the past several years, the Kansas Supreme Court has grappled with how district courts may measure a victim’s loss, especially for properly crimes. See Hand, 297 Kan. at 739-40 (premium surcharge insurer assessed victim after he filed claim for stolen property appropriate measure of restitution imposed on criminal defendant rather than fair market value of property); State v. Hall, 297 Kan. 709, 709-10, 304 P.3d 677 (2013) (In fashioning a restitution order, the district court may consider either the wholesale cost or retail value of inventory stolen from a commercial enterprise.).

As part of a criminal sentence, restitution serves multiple purposes. It is not intended to be purely or even primarily punitive. Most obviously, of course, restitution provides a vehicle for financial compensation to crime victims for their losses. See K.S.A. 2015 Supp. 21-6607(c)(2); State v. Cox, 30 Kan. App. 2d 407, 408-09, 42 P.3d 182 (2002). As to,the defendant, restitution aims to rehabilitate and deter rather than strictly to punish. 30 Kan. App. 2d at 409. The payments ideally instill in criminal wrongdoers some sense of the costs their actions have inflicted on others. State v. Heim, No. 111,665, 2015 WL 1514060, at *2 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. 1015 (2015). Those functions take on added and. more immediate significance where, as here, the district court places a defendant on probation rather than incarcerating him or her. Restitution occupies a place quite different from other components of a sentence imposed ,on a probationer by providing a calibrated measure of acceptance of responsibility for criminal conduct and of a willingness to reform.

We now look at the restitution issues on which the panel agrees. First, tire district court erred in ordering Futrell to pay restitution for the damage and loss associated with the break-in of Platt’s SUV. Both of the criminal charges arising from that incident were dismissed. So Futrell was not convicted of any offense related to the SUV. Neither in the plea bargain nor during the plea itself did Futrell agree to be responsible for Platt’s losses from that break-in. Consistent with the rule in Dexter, Futrell cannot be required to pay restitution based on those dismissed charges. 276 Kan. at 919 (“[A] district court. . . may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by die defendants crime”).

In Dexter, the defendant was charged with seven counts of impairing a security interest related to his disposition of motor vehicles covered by liens. He pled guilty to one count, and the remaining charges were dismissed. The district court imposed restitution measured by the losses to the secured party in all seven counts. On appeal, the Kansas Supreme Court found the restitution order to be legally improper as to the six dismissed counts precisely because the defendant had not been convicted of them and had not agreed to assume financial responsibility for them. Dexter, 276 Kan. at 919. With respect to the SUV break-in, FutrelFs position is legally and factually indistinguishable from Dexters. Accordingly, we reverse the restitution order as to the damage to the SUV and the theft of cash from it.

Second, we consider the order of restitution to FutrelFs girlfriend for the damage to her smartphone. The underlying charge for criminal damage to property was dismissed as part of tire negotiated plea. But Futrell agreed the State could ask for restitution to his girlfriend. By doing so, Futrell effectively acknowledged he would pay restitution in an appropriate amount for the smartphone. That is, he agreed restitution was due his girlfriend and simply reserved the right to a hearing on how much. We contrast the language in FutrelFs plea agreement with that in State v. Hawkins, No. 114,809, 2016 WL 4499384, at *1 (Kan. App. 2016) (unpublished opinion), where the parties agreed to a hearing on restitution related to a dismissed charge, but Hawkins expressly “‘oppose[d] paying restitution.”[^*]

Futrells unqualified agreement that the County Attorney could request restitution really has to be considered an acknowledgement of a legal obligation to pay restitution in some amount. The alternative construction leads to an unreasonable result. If the request were construed to be the County Attorneys unilateral assertion that Futrell owed restitution in some amount for the damaged smartphone—a request drat Futrell silently and only implicidy opposed—dren the request would be legally meaningless under the rule in Dexter. The County Attorney would be asldng for a hearing on restitution in a situation in which the district court had no legal authority to grant restitution. But tire law supposes parties to a contract intend to exchange promises that impose enforceable legal duties and create enforceable legal rights. See LDF Food Group, Inc. v. Liberty Mut. Fire Ins. Co., 36 Kan. App. 2d 853, 863, 146 P.3d 1088 (2006), rev. denied 283 Kan. 931 (2007) (recognizing “well-established” principle that courts should avoid construing contractual language in a way that “render[s] any term meaningless”); Gilman v. Marsh & McLennan Companies, Inc., 826 F.3d 69, 75 (2d Cir. 2016) (courts should not read contracts as to render any part meaningless) (applying Delaware law); Frew v. Janek, 820 F.3d 715, 724 (5th Cir. 2016) (same) (applying Texas law). Plea agreements are a species of contract, so they generally should be subject to accepted rules of contract interpretation. State v. Urista, 296 Kan. 576, Syl. ¶ 3, 293 P.3d 738 (2013). We find no room for deviation here.

In short, Futrell agreed to pay restitution for his girlfriend’s smartphone and reserved the right to challenge the amount. On appeal, he does not dispute that the evidence offered at the hearing supported a $500 loss. We, therefore, unanimously affirm that part of the restitution order.

Turning to the break-in at Platts home, we first outline die relevant elements of die charges the County Attorney filed against Futrell. The burglary count required die State to prove Futrell entered or remained in die house without Platts audiority and with the intent to commit a theft there. K.S.A. 2015 Supp. 21-5807(a)(1). The dismissed theft count required proof that Futrell “exert[ed] unauthorized control over property” with die intent to permanently deprive Platt of possession. K.S.A. 2015 Supp. 21-5801(a)(1). Eveiyone, including Futrell, agrees he was properly ordered to pay $250 in restitution for the damage to the backdoor of Platt’s house, where he forced his way in during the burglaiy. We unanimously affirm that part of the order. The point of contention pivots on the $600 to $700 in cash that was taken during die break-in.

Relying on Miller, 51 Kan. App. 2d 869, Syl. ¶ 2, Futrell contends the loss of the cash is insufficiently connected to die burglary—in contrast to the dismissed theft charge—to support that aspect of die restitution order. Futrell correctly reads Miller. And were we to apply Miller, he would prevail on this point. But we are not obligated to follow Miller. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010) (one panel of die Court of Appeals is not bound to follow a published opinion of another panel). As I explain, Judge Hebert and I do not. The two of us choose, instead, what looks to be a more sensible path consistent with both die law and die purposes underpinning restitution.

In Miller, the court held that because burglary requires only an intent to commit a theft and not an actual taking of property, a defendant convicted of burglary alone .could not be ordered to pay restitution for anything taken during the course of a break-in. 51 Kan. App. 2d at 874. The Miller holding rests on the idea that the crime of burglary ends as soon as a defendant both enters a building and decides to steal something—satisfying the statutory elements—and whatever happens after that is a theft or some otiier crime. As far as the State’s required proof to get a conviction at trial, that’s essentially true. A defendant could be convicted of burglary for entering a place with the intent to steal, even though he or she then found nothing to his or her hiring and left emptyhanded.

But the rules governing restitution do not limit a victim’s recovery for losses caused by a crime in that narrow way. In effect, Miller cuts off causation as soon as the elements of the crime have occurred without considering the consequences of die continuing criminal activity. Under the rule in Miller, the theft, then, operates as an independent intervening event disrupting the legal causation necessary to support a restitution award for the loss of the stolen property. That would be true here, even though Futrell harbored an intent to steal as a necessary element of the burglary and then acted immediately on that intent to take the wedding ring and cash. Any causal bréale seems, at best, artificial.

But a restitution order entered under K.S.A. 2015 Supp. 21-6607(c)(2) does not demand the kind of formalistic connection between the precise elements of the crime of conviction and the loss to the victim that Miller imagines. As the Kansas Supreme Court has recognized, an indirect causal association is legally sufficient. See Hand, 297 Kan. at 739-40. The circumstances in Hand are instructive. Hand entered a plea and was convicted of stealing a big-screen television. The victim filed a claim under his renter’s insurance policy for the loss and had been paid by the insurance company. The company tiren imposed a premium surcharge on the victim that exceeded the fair-market value of the television. The district court based the restitution award to the victim on the surcharge rather than the value of the television. The court upheld the restitution order, since Hand’s criminal conduct indirectly caused tire surcharge, although the immediate cause was the victim’s independent decision to submit an insurance claim for the loss. 297 Kan. at 738-40. A victim’s decision to submit an insurance claim would seem to be more of an intervening (and independent) cause than a burglar’s decision to act on his or her intent to steal.

So here, Futrell’s burglary was, analogously, at tire very least an indirect cause of Platt’s loss of the $600 taken from his house. The burglary and the theft composed a single criminal undertaking and were immediately linked in both time and place. The burglary was a necessaiy factual precursor to the theft—absent the break-in itself Futrell would not have been in a position to steal the money. Accordingly, tire burglary was sufficiently tied causally to the property loss to support the restitution award, as required by K.S.A. 2015 Supp. 21-6607(c)(2). In keeping with the policy objectives of restitution, Platt ought to be made whole for what factually amounts to a discrete criminal venture directed at him, and Futrell should be made to feel the full retributive sting of the harm he inflicted.

We think an appropriate rule of restitution permits an order encompassing losses to a particular victim arising from criminal actions immediately aligned in time and place, as are the burglary and the theft in this case. Doing otherwise robotically draws a line based on strict elements of criminal offenses inconsistent with the somewhat looser causal requirements of K.S.A. 2015 Supp. 21-6607(c)(2).

In at least some circumstances, the Miller rule would foster peculiar results incompatible with the legislative purpose behind restitution. For example, suppose Futrell first attempted to break into Platt’s house through the front door but found it unusually resistant to his efforts. So he left the door heavily damaged but ultimately unyielding and turned to the less fortified backdoor to get in. Although Futrell would not have breached the front door, the burglary conviction ought to support a restitution order including the cost of its repair. That should be true even though the damage to the front door would not strictly satisfy an element of a burglary charge.

Similarly, some crimes don’t necessarily end as soon as the perpetrator has satisfied all of the legal elements. Again, for example, suppose a criminal defendant repeatedly stabbed another person with a large knife, inflicting fairly superficial injuries with the first several blows and an injury requiring significant (and expensive) medical treatment with the final blow. The defendant pleads guilty to aggravated battery for causing bodily harm to another person with a deadly weapon, a severity level 7 felony violation of K.S.A. 2015 Supp. 21-5413(b)(1)(B). The elements of that crime would be satisfied with tire initial blow to the victim, but the rest of the blows could not be charged separately—that would be multiplicitous. See State v. Mendoza, 41 Kan. App. 2d 996, 997, 207 P.3d 1072 (2009). The rule in Miller arguably would preclude restitution to the victim for most of the medical expenses unless it extends beyond the statutory elements to the unit of prosecution. As a practical matter and certainly for restitution purposes, the entire criminal episode ought to be considered. Or take the robber who points a pistol at a woman and demands her purse. She complies. But as the robber turns and takes several steps in his getaway, the victim grabs at his arm. The robber then strikes the victim across the face with the handgun, inflicting a significant injury. The aggravated robbery may have been completed when the perpetrator took the purse. So he would be hable for the resulting economic loss to the victim. But the physical injuries to the victim may be the result of an aggravated battery immediately following die robbeiy. If so, Miller would preclude restitution to the victim for those injuries based solely on an aggravated robbeiy charge or conviction. A restitution order shouldn’t turn on those kinds of legal abstractions. The physical injuries would be sufficiently associated with the robbeiy to satisfy the causation requirement of K.S.A. 2015 Supp. 21-6607(c)(2), especially as described in Hand and Hall.

As with other applications of causation, however, a defendants criminal conduct may be sufficiently attenuated from a victims claimed loss so as to be outside the scope of a proper restitution order. See Hall, 298 Kan. at 990 (“not all tangential costs incurred as a result of a crime should be the subject of restitution”); State v. Hunziker, 274 Kan. 655, 667-68, 56 P.3d 202 (2002) (victim s expense in retaining lawyer to explore means of recovering economic losses from criminal defendant and to prepare “restitution booklet” should have been excluded from restitution order as insufficiently connected to convictions for criminal damage to property and theft). Here, attenuation is not an issue. But it was in State v. Arnett, No. 112,572, 2015 WL 6835244 (Kan. App. 2015) (unpublished opinion), which Judge Leben cites in his separate opinion. In that case, Arnett pled guilty to conspiracy to commit burglary for loaning her mothers car to her boyfriend knowing that he and his cohorts intended to break into houses and take saleable property from them. She did not otherwise have anything to do with the break-ins. The panel reversed a restitution order based on the homeowners’ losses because “there is no causal connection between Arnett’s crime of convi ction—conspiracy—and the amounts for which she was ordered to make restitution—the fruits of burglary, theft, and criminal damage to property.” 2015 WL 6835244, at *2. The panel effectively found the crime of conviction to be too attenuated from the losses to satisfy K.S.A. 2015 Supp. 21-6607(c).

In some cases, the line between permissibly proximate restitution and losses too remote to be allowed may not be drawn easily. And Arnett may fall closer to that line than most. The Miller decision provides a wooden rule that might simplify some of those cases but at too substantial a cost in a great many other cases. Of course, in any case resolved through plea negotiations, the State and the defendant may eliminate uncertainty about restitution by including clearly drafted terms in a written agreement.

As to Futrell’s conviction for the burglary of Platt’s home, we find the district court properly included the stolen cash in the restitution order. The loss is sufficiently connected factually and legally to the crime of conviction to be covered under K.S.A. 2015 Supp. 21-6607(c)(2).

We, therefore, affirm the district court’s restitution order except for the losses resulting from the burglary and theft from Platt’s motor vehicle. We reverse as to those losses and find as a matter of law Futrell cannot be required to pay restitution for them. All of the associated charges were dismissed, and Futrell did not agree to pay restitution.

Affirmed in part and reversed in part.

* * *

* [*] In Hawkins, this court found that the agreement to a hearing coupled with the defendant’s expressed opposition to paying any restitution on the dismissed charge created either a mutual mistake or a legal impossibility in light of Dexter. In other words, Hawkins’ opposition to any restitution was incompatible with the sort of agreement contemplated in Dexter. When the lawyers for the State and Hawldns negotiated the plea agreement, they were unaware of the rule in Dexter. So they incorrectly believed the district court could determine whether restitution were due the victim on the dismissed charge in the face of Hawkins’ claim that the victim basically fabricated the underlying incident. At the sentencing hearing, the State and Hawldns effectively reformed the plea agreement with the district courts guidance. Hawldns acknowledged an obligation to pay restitution as to the dismissed charge but reserved the right to challenge tire States evidence as to the amount. Hawkins, 2016 WL 4499384, at *1, 6. Here, the language in the plea agreement between the County Attorney and Futrell mirrored what the State and Hawldns ultimately included in their reformed agreement.