State v. Bailey

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,597
STATE OF KANSAS,
Appellee,
v.
BRIAN C. BAILEY,
Appellant.
SYLLABUS BY THE COURT
A litigant waives or abandons an issue by not supporting an argument with
pertinent authority or explaining why the argument is sound despite a lack of pertinent
authority.
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed July 30,
2021. Affirmed.
Brittany E. Lagemann, of Olathe, was on the brief for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: In an earlier appeal, we remanded this case after deciding a
clerical error may have led to restitution being mistakenly collected from Brian C. Bailey.
On remand, the district court found a clerical error and ordered it corrected. But the
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district court held it could not order the return of restitution previously collected and
distributed to Bailey's victims. Bailey appeals the district court's decision to not order the
refund of amounts outside the possession of the district court. We affirm, concluding
Bailey did not show that the district court has authority in a criminal case to order third
parties to return those funds.
FACTS AND PROCEDURAL BACKGROUND
Bailey is serving a life sentence on felony murder for the death of a gas station
attendant during one of a series of armed robberies he committed. We affirmed his
convictions on direct appeal. State v. Bailey, 247 Kan. 330, 340, 799 P.2d 977 (1990),
cert. denied 500 U.S. 920 (1991). Since we affirmed his conviction, Bailey has filed
several motions to correct an illegal sentence, and those motions have led to multiple
appeals. See State v. Bailey, 306 Kan. 393, 394, 394 P.3d 831 (2017) (recounting history
of appeals).
This appeal relates to one of Bailey's pro se motions to correct an illegal sentence.
In this one, he claimed a collection agency wrongfully collected restitution during his
imprisonment. His motion led to a prior appeal and to this court holding no order
authorized restitution despite a clerk's notation in the Johnson County District Court case
management system saying an order existed. The notation caused the file to be flagged
for collection, which led to its referral to a collection agency. We concluded a clerical
error could have led to the collection, and we remanded Bailey's motion to the district
court to decide whether any clerical error required correction. See Bailey, 306 Kan. at
397-98 (citing K.S.A. 22-3504[2]).
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On remand, Bailey filed a new motion for "an order regarding restitution." During
a hearing on the remand issue and the new motion, the district court questioned its
authority to order a third-party collection agency or Bailey's victims to return the
restitution. The district court said it needed time to research that question.
In a later order, the district court found the clerk's office erred when it entered a
notation in the case management system reflecting a restitution judgment. The district
court ordered the error corrected and that collection efforts cease.
The district court next considered the restitution previously collected. It ordered
funds within the clerk's control returned to Bailey. But it refused to order the collection
agency or the victims to return funds to Bailey. The district court found the issue to be
one of first impression in Kansas. It turned to United States v. Hayes, 385 F.3d 1226 (9th
Cir. 2004), as persuasive authority. And based on that decision, the district court
determined it lacked authority to order the return of funds distributed to victims.
The district court determined, in the alternative, that most of Bailey's request was
barred by the statute of limitations found in K.S.A. 60-513(a)(2), which requires an
injured party to bring an action to recover personal property within two years of the
taking of property. Citing State v. Jamerson, 54 Kan. App. 2d 312, 399 P.3d 246 (2017),
the district court reasoned K.S.A. 60-513 applied because Kansas courts treat an order of
restitution like any other monetary judgment obtained in a civil suit and thus the Kansas
Code of Civil Procedure governs the enforcement of restitution against a sentenced
defendant. The district court also found that Bailey knew in 2007 that restitution was
being collected but did not challenge the order until 2013. Bailey had thus not sought
return of his money within the two-year statute of limitations.
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Bailey appeals. We have jurisdiction under K.S.A. 2020 Supp. 22-3601(b)(3)
(appeal taken directly to Supreme Court in "any case in which a maximum sentence of
life imprisonment has been imposed"). See State v. Robinson, 309 Kan. 159, 432 P.3d 75(2019) (postconviction proceeding; defendant subject to life sentence); State v. Davisson,
303 Kan. 1062, 1064, 370 P.3d 423 (2016) (same); State v. Szczygiel, 294 Kan. 642, 279
P.3d 700 (2009) (same).
ANALYSIS
K.S.A. 2020 Supp. 22-3504(b), previously K.S.A. 22-3504(2), supplies the
authority for a district court to correct any clerical error at any time. Here, the district
court determined a clerical error required correction. The district court properly ordered
the clerk to correct the entry in the case management system to no longer reflect
restitution due when, in fact, the court had never ordered it.
Bailey asked the district court, and now asks this court on appeal, to go further and
order the return of funds distributed to victims or held by a third-party collection agency.
But K.S.A. 2020 Supp. 22-3504(b) does not authorize a court to do anything more than
correct the clerical order. And Bailey offers no other statutory or other binding authority
nor does he explain why his position is sound despite a lack of supporting authority.
Noting this, the State contends this court should hold that Bailey waived or abandoned
his argument that he can recover improperly collected restitution in his criminal case. We
agree.
We have consistently held the failure to support an argument with pertinent
authority or explain why a position is sound despite the lack of authority to be akin
failing to brief the issue. And such a failure leads to a party waiving or abandoning an
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argument. E.g., State v. Tague, 296 Kan. 993, 1001-02, 298 P.3d 273 (2013). Our review
of Bailey's authority leads us to conclude that Bailey has waived or abandoned any
argument that he can recover improperly collected restitution through his criminal case.
On appeal, Bailey relies on three cases: United States v. Beckner, 16 F. Supp. 2d
677 (M.D. La. 1998); United States v. Venneri, 782 F. Supp. 1091 (D. Md. 1991); and
People v. Nelson, 369 P.3d 625 (Colo. App. 2013), rev'd 362 P.3d 1070 (Colo. 2015),
rev'd 581 U.S. ___, 137 S. Ct. 1249, 197 L. Ed 2d 611 (2017).
These cases differ significantly from Bailey's because each involves a conviction
overturned on appeal or set aside on collateral review. See United States v. Beckner, 69
F.3d 1290 (5th Cir. 1995) (reversing conviction after deciding government did not
present sufficient evidence of guilt); Venneri, 782 F. Supp. at 1092 (recounting
procedural history and prior order setting aside conviction after statute underlying the
conviction held unlawful); Nelson, 369 P.3d at 627 (recounting procedural history that
led to retrial and acquittal). In contrast, Bailey's conviction stands, and Bailey has not
shown that any victim who received restitution did not suffer a loss because of his
actions. Rather, his complaint relates to the procedure that caused the victims to receive
compensation due them. As a matter of equity, Bailey's position differs from the former
defendants in the cases he cites.
Additionally, those courts cited a statute or court rule from their respective
jurisdiction that authorized the court to return the funds. The federal courts in Beckner, 16
F. Supp. 2d at 678, and Venneri, 782 F. Supp. at 1094, relied on the federal All Writs Act,
28 U.S.C. § 1651(a), which provides: "The Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law." The Beckner court held
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this provision conferred authority for the court "to carry out its obligation to completely
vacate all aspects of the erroneous judgment issued by it." 16 F. Supp. 2d at 679. And the
Venneri court held the Act allows a federal court to issue orders "'necessary or
appropriate to effectuate and prevent the frustration of orders it has previously issued in
its exercise of jurisdiction otherwise obtained.'" 782 F. Supp. at 1095. Bailey points us to
no provision of Kansas law that extends to Kansas courts authority like that of the All
Writs Act. Nor does he cite any authority supporting a refund for a defendant who still is
under sentence for a valid conviction.
The Colorado Court of Appeals in Nelson also relied on a rule that it decided
granted authority to order the repayment of restitution from public funds. 369 P.3d at 630
(citing Colorado Rule of Criminal Procedure 57[b]), rev'd 362 P.3d at 1072, rev'd 137 S.
Ct. 1249. But, in a decision not cited by Bailey, the Colorado Supreme Court reversed
that holding. The Colorado Supreme Court held that "a trial court must have statutory
authority to order a refund from public funds." And while an exonerated defendant could
seek a refund of costs, fees, and restitution through the refund process created by
Colorado's Exoneration Act, the trial could not order a refund of costs, fees, and
restitution as part of a criminal proceeding without statutory authority to do so. 362 P.3d
at 1072.
Thus, the Colorado Supreme Court's decision supports the district court's decision
here and specifically its conclusion that it needed authority to grant relief to Bailey in his
criminal case. Even though the United States Supreme Court reversed the Colorado
Supreme Court in Nelson, 137 S. Ct. 1249, it did not disturb the Colorado Supreme
Court's holding that Colorado law supplied no authority for a refund in a criminal
proceeding. Instead, it reversed on a separate issue that Bailey does not raise—due
process. On the due process issue, the Colorado Supreme Court held there was no due
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process problem under Colorado's Exoneration Act, which allowed Colorado to keep
conviction-related assessments unless the prevailing defendant proved innocence by clear
and convincing evidence. The United States Supreme Court disagreed, concluding the
prevailing defendants "should not be saddled with any proof burden. Instead, . . . they are
entitled to be presumed innocent." 137 S. Ct. at 1256; see 137 S. Ct. at 1258 ("To
comport with due process, a State may not impose anything more than minimal
procedures on the refund of exactions dependent upon a conviction subsequently
invalidated.").
But Bailey does not stand before us as an exonerated defendant or as a defendant
who prevailed on appeal by having his conviction reversed. Nor does he assert a due
process argument. Thus, in the Bailey line of cases, the one most applicable is the
Colorado Supreme Court decision holding a court needs authority to reimburse a
defendant in a criminal case. Nelson, 362 P.3d at 1072.
In summary, Bailey provides this court no authority to support his argument that a
Kansas district court can order a third party to return restitution improperly collected
through his criminal case. He has waived or abandoned the issue by not supporting his
argument with pertinent authority or explaining why the argument is sound despite a lack
of pertinent authority.
We thus do not decide the issue he raises or decide whether the district court
properly relied on Hayes, 385 F.3d 1226, which is also distinguishable. There, a clerical
error did not lead to the collection of restitution, as is the case here. We also do not reach
the alternative holding of the district court that Bailey's claims were barred by a two-year
statute of limitations. Having concluded that Bailey waived his argument, we need not
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address this alternative holding. Cf. David v. Board of Norton County Comm'rs, 277 Kan.
753, 760, 89 P.3d 893 (2004).
We thus affirm the district court's judgment although on a different basis from that
cited by the district court. Cf. State v. Lindemuth, 312 Kan. 12, 13, 470 P.3d 1279 (2020).
Affirmed.
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