State v. Shaffer ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,652
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANGELIQUE R. SHAFFER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 29, 2022.
Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Angelique R. Shaffer appeals from her sentence stemming from her
convictions for theft and identity theft. Specifically, she challenges the district court's
restitution order, which she claims is unworkable due to a change in her financial
circumstances. Although many courts might agree that the district court's restitution order
is burdensome given the circumstances, this court cannot say that the district court abused
its broad discretion and affirms the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In November 2020, Shaffer pled guilty to one count of theft and one count of
identity theft. The charges stemmed from Shaffer and a codefendant's alleged use of
another person's identity to rent a truck from U-Haul on November 30, 2018, and their
failure to return the vehicle at the agreed upon time.
As part of her plea agreement, Shaffer agreed to pay restitution of $7,344.09,
jointly and severally with her codefendant, to U-Haul in monthly installments of $150. At
the plea hearing, Shaffer's counsel explained to the district court that Shaffer was
"agreeable" to making $150 monthly payments but that $100 "might be more in line."
After accepting the factual basis for the plea and finding that Shaffer had knowingly and
intelligently entered the agreement, the district court accepted her plea.
At sentencing, Shaffer's counsel informed the court that due to a change in
circumstances, the $150 monthly payment plan was no longer workable, as Shaffer's
work hours had recently been reduced and her paycheck was being garnished for child
support. Due to her decreased income, her attorney requested that the court order $75
monthly payments. Shaffer explained that half of her paycheck was going toward child
support, her work hours had been reduced at her job, and she "had picked up a second job
at [a grocery store], but then, because of [her] background, they had to let [her] go."
Shaffer denied having any disabilities or physical limitations and said she currently lived
with her mother.
The district court followed the original plea agreement, sentenced her to 24-
months' probation with a 15-month underlying prison sentence, and ordered her to
maintain full-time employment of at least 40 hours a week. The district court reasoned
that Shaffer should have no trouble meeting this employment condition as "enhanced
unemployment benefits" being offered because of the COVID-19 pandemic had caused
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underemployment. The court added that Shaffer's criminal history would not be a
hindrance if she just had a "positive attitude" and could "take the tiger by the tail [and] be
an employee that shows up on time and just does their job." The judge further explained
that he knew "two people who own multiple franchises, if you showed up at their place
today and said I wanna work and had a positive attitude, you would have a job by
tonight." As for restitution, the court ordered Shaffer to pay $7,344.09, jointly and
severally with her codefendant, in minimum monthly installments of $150 as a condition
of probation.
Shaffer appeals.
DISCUSSION
On appeal, Shaffer contends only that the district court abused its discretion by
imposing an unworkable restitution plan. Shaffer makes clear that she is not challenging
the total amount of restitution or any other part of her sentence—she only contends that
the payment plan imposed was unworkable given her particular circumstances and asks
this court to vacate the district court's order with instructions to impose a reduced
monthly payment. The State opposes this request, arguing the present payment structure
follows the plea agreement Shaffer agreed to and that Shaffer has failed to show that the
plan is unworkable.
Appellate courts review an order of restitution—including both the amount and
whether a payment plan is workable—for an abuse of the district court's discretion. State
v. Tucker, 311 Kan. 565, 566, 465 P.3d 173 (2020). A district court abuses its discretion
when its decision is based on an error of law or fact, or when its decision is so afield that
no reasonable person would agree. State v. Meeks, 307 Kan. 813, 816, 415 P.3d 400(2018). Although it is of little consequence here—this court does exercise unlimited
review of the statute underlying the restitution order. 307 Kan. at 816.
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The restitution statute—K.S.A. 2018 Supp. 21-6604(b)(1)—was in effect when
Shaffer committed her offense, but by the time she was sentenced the Legislature had
amended the statute effective as of June 11, 2020, and removed all references to the
phrase restitution plan. L. 2020, ch. 9, § 1. The Legislature clarified that the amendment
was procedural in nature and should be applied retroactively. K.S.A. 2020 Supp. 21-
6604(v). The amended restitution statute states:
"In addition to or in lieu of any of the above, the court shall order the defendant
to pay restitution, which shall include, but not be limited to, damage or loss caused by the
defendant's crime. 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." K.S.A. 2020 Supp. 21-6604(b)(1).
This court agrees with Shaffer that this statutory change does not affect the
analysis of her claim that the restitution payment plan is unworkable. Shaffer still carries
the burden to show that the district court abused its discretion by imposing an unworkable
restitution arrangement, whether that arrangement calls for payment of restitution in
whole or in part, by a one-time payment, or through installments. See Meeks, 307 Kan. at
816 (setting forth the standard of review when a defendant objects to the workability of a
restitution plan).
Shaffer argues that no reasonable person would agree with the district court's
decision because she established compelling circumstances demonstrating a need for
reduced monthly payments. She contends that when imposing a restitution payment plan
a district court must consider a defendant's unique circumstances, such as their income,
their present and future earning capacity, their living expenses, debts and financial
obligations, and whether they have dependents. See Meeks, 307 Kan. at 819-20. She
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maintains that the changes in her circumstances between the entry of her plea and
sentencing should have led the court to impose a lower monthly payment, including that
(1) her work hours were reduced to 20 hours a week; (2) her child support garnishment
depleted approximately half of her paycheck; and (3) she was struggling to put gas in her
car and provide her children with diapers.
Although the district court did not credit Shaffer's testimony, it considered her
economic position and her request for reduced restitution payments. Shaffer's reliance on
State v. Herron, 50 Kan. App. 2d 1058, 1064, 335 P.3d 1211 (2014), in which a panel of
this court held that a district court abused its discretion by imposing an unworkable
restitution plan without factoring in the defendant's extreme poverty, is unavailing
because there is no evidence that the court failed to factor this evidence into its decision.
While the district court here was not persuaded by Shaffer's request, it does appear that it
considered her circumstances, but it ultimately dismissed Shaffer's concerns based on its
own apparent understanding of the job market available to persons with Shaffer's
education, work experience, and felony record—and it cannot be said that no reasonable
person could come to the same conclusion.
The district court imposed a payment plan that requires Shaffer to pay about half
of the total amount of restitution—for which she is jointly and severally liable with her
codefendant—by the time she successfully completed probation. Without knowing her
codefendant's sentence or the stipulations of their restitution order, this court understands
the logic of Shaffer's restitution plan. Under these circumstances, it was not unreasonable
for the district court to follow the plea agreement because the parties clearly anticipated
Shaffer paying off her proportionate share of the total restitution amount by the time she
completed probation, with the expectation that her codefendant would do the same.
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While not all reasonable minds would agree with the district court's decision,
Shaffer has failed to show that the district court abused its discretion when it denied her
request for a lower monthly payment in her restitution order.
Affirmed.
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