State v. Jackson

NOT DESIGNATED FOR PUBLICATION
No. 121,827
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYJUANA L. JACKSON,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed October 8,
2021. Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Daniel G. Obermeier, assistant district attorney, Marc A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before BUSER, P.J., POWELL and HURST, JJ.
POWELL, J.: Tyjuana L. Jackson was convicted by a jury of her peers of one count
of voluntary manslaughter after she shot and killed an innocent bystander at a nightclub
during an altercation between herself and her paramour's wife. Jackson now appeals,
arguing (1) jury instruction errors entitle her to a new trial and (2) her sentence is illegal.
After a careful review of the record, we find the district court's failure to give a reckless
involuntary manslaughter instruction to be harmless error but otherwise affirm the jury
instructions given. As to Jackson's sentence, we find no error in the district court's
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calculation of her criminal history score, nor is the district court's restitution order illegal.
Thus, we affirm Jackson's conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
A five-year affair between Jackson and Phillip Watson led to the death of Michael
Williams, an innocent bystander, on March 17, 2018. LaShonda Watson, Phillip's wife,
was aware of the affair, but she testified she believed the affair between the two had
ended at the time of the altercation.
On March 15, 2018, Jackson and Phillip were exchanging text messages when
Phillip sent Jackson a message stating, in part: "Now it seems [LaShonda] wants to cause
me major problems and I don[']t [want] nobody getting hurt, cause she's talking about
killing me and whomever she caught me wit[h] until our divorce is [f]inal." Jackson, who
took the stand in her own defense at trial, testified that she felt frightened and threatened
because she believed LaShonda was referring to her in the text message.
The next day, on the evening of March 16, 2018, Jackson met a friend at The
Firelight Lounge in Kansas City, Kansas. According to Jackson, at some point in the
evening she went into her purse to retrieve a cigarette lighter and found a handgun. She
did not inspect the contents of her handbag before arriving at the nightclub that night, and
she believed Phillip put the gun in her purse. Although the club had metal detectors, the
firearm was not detected by club security.
While Jackson was still at the club, Phillip and LaShonda arrived at The Firelight
Lounge shortly after midnight. There, the husband and wife met up with LaShonda's
aunt, LaDonna Chandler. LaDonna's boyfriend, Charles Brooks, was working security at
the nightclub that evening.
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Jackson was talking with a friend at the bar when she decided to go to the dance
floor. LaShonda and LaDonna were standing near the dance floor talking to Phillip.
Because the club was crowded, Jackson bumped into LaDonna, who was standing near
her as Jackson made her way to the dance floor. LaDonna then turned around, bumped
into Jackson, and said, "Don't fucking shove me." According to Jackson's testimony,
LaShonda then yelled at Jackson, "Bitch, I'm tired of you. I'm going to kill you."
LaShonda mentioned Jackson "messing with" her husband. Jackson testified she recalled
the text message Phillip had sent her the day before and became frightened.
LaDonna, LaShonda, and Jackson began to physically engage with one another,
which was described as "bumping" and "shoving" each other. Brooks began to lead
Jackson away, but then LaShonda took one last punch at Jackson, which knocked off her
wig. Jackson testified that as she bent down to retrieve her wig, she thought she saw
LaShonda reach for a gun.
Jackson began to dig around in her purse, and Brooks began physically restraining
Jackson, fearing she was carrying a firearm. Nevertheless, Jackson was able to draw the
handgun out of her purse. Brooks tried to force her hand up in an attempt to prevent
anyone from getting shot, but Jackson resisted. Brooks testified at the same time he was
"begging" for Jackson to give him the gun. During this struggle between Jackson and
Brooks, Jackson fired one shot. According to testimony at trial, she kept pulling the
trigger to shoot, but the gun jammed. Brooks' hand had an abrasion, and his glove was
damaged by the gun when Jackson fired it.
The single shot Jackson was able to fire hit an innocent bystander, Williams, in the
head and killed him. Jackson and Brooks walked over and looked at Williams' body, and
Jackson eventually surrendered her gun to Brooks. Upon doing so, Jackson then fled the
scene. She turned herself in to police nine days later.
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Jackson testified that when she drew the gun, she intended "to defend [her]self,"
but, when repeatedly asked, never clarified what she meant by "defend [her]self" and if
that meant she intended to fire the gun. She did testify, "I don't—I don't know about—
anything about a gun, so I just knew that if somebody had a gun and they were going to
pull it out on me, I was going to pull one back out." According to her, as soon as she
grabbed the gun out of her bag, "immediately Charles [Brooks] grabbed [her] hand and
the gun went off."
The altercation and shooting were captured on surveillance camera footage, which
was played for the jury.
The State charged Jackson with first-degree premeditated murder of Williams,
based on a transferred intent theory, and aggravated battery of Brooks.
The district court instructed the jury on first-degree premeditated murder, along
with the lesser included offenses of second-degree intentional murder, voluntary
manslaughter under a theory of an unreasonable but honest belief that circumstances
existed which justified the use of deadly force (imperfect self-defense), and involuntary
manslaughter under a theory of a lawful act in an unlawful manner. The district court also
instructed the jury on self-defense.
The jury returned a verdict of guilty of the lesser included offense of voluntary
manslaughter and acquitted Jackson of aggravated battery. On August 9, 2019, the
district court sentenced Jackson to a standard term of 102 months' imprisonment and
ordered Jackson to pay $5,000 in restitution to the Crime Victims Compensation Board.
Jackson timely appeals.
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ANALYSIS
Jackson raises seven arguments on appeal, claiming the district court erred by: (1)
instructing the jury in a way that precluded consideration of involuntary manslaughter;
(2) giving an erroneous self-defense instruction; (3) failing to instruct the jury on the
requested lesser included offense of reckless involuntary manslaughter; (4) committing
cumulative error as its handling of the jury instructions deprived her of a fair trial; (5)
imposing an illegal sentence when it classified her prior identity theft conviction as a
person felony; (6) imposing an illegal restitution order because it included no plan for
repayment; and (7) violating her rights under the Sixth and Fourteenth Amendments to
the United States Constitution when it sentenced her to an increased sentence based upon
her prior convictions without requiring the State to prove them beyond a reasonable
doubt to a jury.
I. DID THE DISTRICT COURT GIVE ERRONEOUS JURY INSTRUCTIONS?
When analyzing jury instruction issues, we follow a three-step process by:
"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
The "first and third step are interrelated in that whether a party has preserved a
jury instruction issue will affect our reversibility inquiry at the third step." State v. Bolze-
Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015). If the subject jury instruction was
requested and not given or objected to and the challenging party does not argue that the
failure to instruct violated a constitutional right, any instructional error is reversible only
if there is a reasonable probability the error affected the outcome of the trial in light of
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the entire record. State v. Plummer, 295 Kan. 156, 161-63, 168, 283 P.3d 202 (2012). If
the jury instruction was not requested or was not objected to, we review the instruction
for clear error. State v. McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018).
At the second step, we consider whether the jury instruction was legally and
factually appropriate, reviewing the entire record on appeal de novo. Bolze-Sann, 302
Kan. at 210.
A. The district court did not err in instructing the jury to consider voluntary
manslaughter before considering involuntary manslaughter.
Jackson argues the district court erred when it failed to instruct the jury to
simultaneously consider voluntary manslaughter and involuntary manslaughter. She
complains the standard language of the Pattern Instructions of Kansas (PIK) wrongly
prevents jurors from considering involuntary manslaughter until they first consider
voluntary manslaughter.
Jackson did not object to the given instructions at trial. Therefore, we apply the
clear error standard and will only reverse if an error occurred and we are firmly
convinced that the jury would have reached a different verdict if the instruction error had
not occurred. As the party claiming a clear error, Jackson has the burden to demonstrate
the necessary prejudice. See McLinn, 307 Kan. at 318.
Instruction No. 8 reads:
"If you do not agree that the defendant is guilty of Murder in the Second Degree,
you should then consider the lesser included offense of Voluntary Manslaughter.
"To establish this charge, each of the following claims must be proved:
"1. The defendant knowingly killed Michael Williams.
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"2. It was done upon an unreasonable but honest belief that circumstances existed
that justified deadly force in defense of a person.
"3. This act occurred on or about the 17th day of March 2018, Wyandotte
County, Kansas.
"The State must prove that the defendant committed Voluntary Manslaughter
knowingly. A defendant acts knowingly when the defendant is aware of the nature of her
conduct that the State complains about or of the circumstances in which she was acting.
"When a homicidal act is directed against one other than the person killed, the
responsibility of the actor is the same as it would have been had the act been completed
against the intended victim."
Instruction No. 9 reads:
"If you do not agree that the defendant is guilty of Voluntary Manslaughter, you
should then consider the lesser included offense of Involuntary Manslaughter.
"To establish this charge, each of the following claims must be proved:
"1. The defendant killed Michael Williams.
"2. It was done during the commission of a lawful act in an unlawful manner.
"3. This act occurred on or about the 17th day of March 2018, Wyandotte
County, Kansas.
"When a homicidal act is directed against one other than the person killed, the
responsibility of the actor is the same as it would have been had the act been completed
against the intended victim."
Contrary to Jackson's argument that the district court should have instructed the
jury to consider voluntary manslaughter simultaneously with involuntary manslaughter,
the Kansas Supreme Court has held that "a district court is not required to instruct a jury
to consider a lesser included homicide offense simultaneously with any greater homicide
offense." State v. Sims, 308 Kan. 1488, 1503, 431 P.3d 288 (2018); see State v. James,
309 Kan. 1280, 1305, 443 P.3d 1063 (2019) ("The district judge did not err by failing to
instruct the jury to consider lesser included crimes simultaneously.").
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Moreover, our Supreme Court has characterized the portion of the jury instruction
in Instruction No. 9 of which Jackson complains—"If you do not agree that the defendant
is guilty of Voluntary Manslaughter, you should then consider the lesser included offense
of Involuntary Manslaughter"—as a "transitional statement that offers an orderly method
by which the jury can consider possible verdicts." Sola-Morales v. State, 300 Kan. 875,
886, 335 P.3d 1162 (2014).
Jackson attempts to sidestep the Sims precedent by arguing that K.S.A. 2020 Supp.
22-3414(3) required the district court to have the jury simultaneously consider voluntary
manslaughter and involuntary manslaughter. Yet such an interpretation is not found in the
plain language of the statute. K.S.A. 2020 Supp. 22-3414(3) states, in applicable part:
"In cases where there is some evidence which would reasonably justify a conviction of
some lesser included crime as provided in subsection (b) of K.S.A. 21-5109, and
amendments thereto, the judge shall instruct the jury as to the crime charged and any such
lesser included crime." This statutory language does not require simultaneous
instructions. Thus, it was not legally appropriate for the district court to instruct the jury
to simultaneously consider voluntary manslaughter and involuntary manslaughter. There
was no error.
B. The district court did not err in not giving an ordinary force jury
instruction.
Second, Jackson argues she was entitled to a self-defense instruction under
ordinary force as well as deadly force because she only intended to display her firearm
rather than shoot it. Such an instruction was not proposed below; therefore, Jackson
carries the burden to show clear error. See McLinn, 307 Kan. at 318.
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K.S.A. 2017 Supp. 21-5221(a) defines use of force and use of deadly force as:
"(1) 'Use of force' means any or all of the following directed at or upon another
person or thing: (A) Words or actions that reasonably convey the threat of force,
including threats to cause death or great bodily harm to a person; (B) the presentation or
display of the means of force; or (C) the application of physical force, including by a
weapon or through the actions of another.
"(2) 'Use of deadly force' means the application of any physical force described
in paragraph (1) which is likely to cause death or great bodily harm to a person. Any
threat to cause death or great bodily harm, including, but not limited to, by the display or
production of a weapon, shall not constitute use of deadly force, so long as the actor's
purpose is limited to creating an apprehension that the actor will, if necessary, use deadly
force in defense of such actor or another or to affect a lawful arrest."
K.S.A. 2017 Supp. 21-5222 outlines the circumstances under which ordinary and
deadly force may be used:
"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person or a third person against such other's imminent
use of unlawful force.
"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly
force is necessary to prevent imminent death or great bodily harm to such person or a
third person."
Instructions No. 12 and 13 provided the jury with the law it was to follow
regarding Jackson's use of deadly force in self-defense. Instruction No. 12 read:
"Defendant Tyjuana Jackson claims her use of force was permitted as self-
defense. Defendant is permitted to use against another person physical force that is likely
to cause death or great bodily harm only when and to the extent that it appears to her and
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she reasonably believes such force is necessary to prevent death or great bodily harm to
herself from the other person's imminent use of unlawful force. Reasonable belief
requires both a belief by defendant and the existence of facts that would persuade a
reasonable person to that belief.
"When use of force is permitted as self-defense there is no requirement to
retreat."
Instruction No. 13 instructed the jury:
"The defendant raises self-defense as a defense. Evidence in support of this
defense should be considered by you in determining whether the State has met its burden
of proving that the defendant is guilty. The State has the burden to disprove this defense
beyond a reasonable doubt. The State's burden of proof does not shift to the defendant."
These instructions mirror PIK Crim. 4th 52.200 (2019 Supp.) and PIK Crim. 4th 51.050
(2020 Supp.).
The language for an ordinary force self-defense instruction tracks with Instruction
No. 12, except instead of stating: "Defendant is permitted to use against another person
physical force that is likely to cause death or great bodily harm . . .", the language would
have read: "Defendant is permitted to display to another person a firearm." PIK Crim.
4th 52.200. Under the facts of this case, this proposed ordinary force language was not
factually appropriate.
A use of an ordinary force instruction is appropriate when a firearm is merely
displayed, whereas the use of a deadly force instruction is appropriate when a firearm is
discharged. See State v. Thomas, 311 Kan. 403, 415, 462 P.3d 149 (2020). Compare State
v. Sanders, No. 103,171, 2011 WL 3276191, at *5 (Kan. App. 2011) (unpublished
opinion) (holding jury instruction appropriate on [ordinary] "use of force" in self-defense
when defendant pointed gun but did not fire), with State v. Hardy, 305 Kan. 1001, 1012-
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13, 390 P.3d 30 (2017) (holding self-defense immunity for "use of deadly force" when
defendant fired gun). See also 2 LaFave, Substantive Criminal Law § 10.4(a) (3d ed.
2018) ("But merely to threaten death or serious bodily harm, without any intention to
carry out the threat, is not to use deadly force, so that one may be justified in pointing a
gun at his attacker when he would not be justified in pulling the trigger.").
Before we get into the merits of Jackson's argument, we pause to repeat a point
alluded to early on in the opinion. Jackson's actions were directed against her antagonist,
LaShonda, but it was Williams who was shot and killed. Jackson was prosecuted under a
transferred intent theory, which "clarifies that evidence of a defendant's intent to kill a
particular person can prove intent to kill a human being even if a person other than the
intended victim is murdered at the defendant's hands." State v. Seba, 305 Kan. 185, 198,
380 P.3d 209 (2016). Hence, as a legal matter, even though Jackson shot Williams, it was
the intent of her acts towards LaShonda that matter.
Here, while Jackson tacitly testified she only intended to show the handgun, that is
not the force that she ultimately used. It is undisputed that Jackson shot Williams with her
gun. It is illogical to argue that Williams was killed via the mere display of a firearm.
Regardless of Jackson's subjective intent, she employed deadly force which resulted in a
death. It was Jackson's use of deadly force that needed to be justified under a self-defense
theory because that is the force that caused Williams' death.
To elaborate, when asked about her use of force on direct examination, Jackson
testified as follows:
"[JACKSON]: As I'm picking up my wig, I notice I'm down and I notice
LaShonda is down as well. And I see her picking up a gun off the floor, a silver gun.
"[DEFENSE]: Describe that gun to the best of your ability.
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"[JACKSON]: I'm not real familiar with guns, but it was a—kind of a handgun.
It was silver. It was kind of this big, (indicating).
"[DEFENSE]: And for the record, you are holding your fingers apart what
appears to be maybe 9 to 12 inches?
"[JACKSON]: Yes, sir.
"[DEFENSE]: What did you think at that moment?
"[JACKSON]: My life flashed in front of my eyes. I thought she was going to
kill me.
"[DEFENSE]: What did you do next?
"[JACKSON]: I went into my bag and grabbed the gun that was in my bag.
"[DEFENSE]: Describe for the jury what happens as you were grabbing that
gun out of the bag.
"[JACKSON]: As I grabbed the gun out of the bag—I pulled it out, and
immediately Charles grabbed my hand and the gun went off.
"[DEFENSE]: And can you give a little bit better indication of where the gun
was when it went off?
"[JACKSON]: I believe it would probably be up above, kind of like—level—
level with my head, (indicating).
"[DEFENSE]: And for the record, you were holding your right arm up?
"[JACKSON]: Yes, sir.
"[DEFENSE]: Did you grab it with your right hand?
"[JACKSON]: Yes, sir, I did.
"[DEFENSE]: Again, what side of the—of your body was the purse on at this
point in time?
"[JACKSON]: At this point in time, once I had fell up—it ended up getting in
my left hand.
"[DEFENSE]: You pulled the gun out; correct?
"[JACKSON]: Yes, sir, I did.
"[DEFENSE]: And then you said just a moment ago—and for the record, you
were holding your hand up right at about eye level?
"[JACKSON]: Yes, sir.
"[DEFENSE]: How did it get up to that level?
"[JACKSON]: I—as soon as I pulled it out, I—it came out at that level.
"[DEFENSE]: And what did Charles do?
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"[JACKSON]: He grabbed it.
"[DEFENSE]: And what happened next?
"[JACKSON]: The gun discharged.
"[DEFENSE]: And were you pulling that gun out to defend yourself?
"[JACKSON]: Yes, I was.
"[DEFENSE]: And why did you think you needed to pull that gun out to defend
yourself?
"[JACKSON]: Because I was scared for my life. They—LaShonda had a gun,
and I—I wanted to defend myself. I felt like if she was going to shoot me—I mean, I
wanted to have a gun as well that—to defend myself with."
On cross-examination, the State attempted to get Jackson to clarify her thoughts
when she drew the firearm.
"[STATE]: In the club when you discovered—you said at some point you
reached in to find a lighter and you found that you were carrying a gun; is that right?
"[JACKSON]: Yes, sir.
"[STATE]: Did you check to see if there was a round that was chambered?
"[JACKSON]: I don't know anything about firearms, so I would not know how
to check to see if there's anything like you said, a chamber or anything.
"[STATE]: So is it—so you just assumed then when you did decide to pull
the gun out that it would be ready to fire?
"[JACKSON]: I just assumed that when I pulled the gun out I was defending
myself. I didn't intend to fire the gun. I did intend to defend myself. I never intended to—
"[STATE]: How were you going to defend yourself without firing the gun?
"[JACKSON]: I don't—I don't know about—anything about a gun, so I just
knew that if somebody had a gun and they were going to pull it out on me, I was going to
pull one back out.
"[STATE]: And when you pulled that gun out—well, I'll ask you, have you
ever shot that gun before?
"[JACKSON]: I have never shot a gun, period, in my life.
"[STATE]: But you knew how to hold it; fair to say?
"[JACKSON]: Well, yes, sir.
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"[STATE]: Okay. And you just assumed then that you were going to be able
to point it and fire it once you pulled it out; is that right?
"[JACKSON]: I just assumed that I would pull the gun out to defend myself.
"[STATE]: Okay. And I'm asking you, how were you going to defend
yourself with a gun other than firing it?
"[JACKSON]: I—I don't know anything—I don't know—I didn't think—at that
time I wasn't saying, 'Well, if I pull this gun out, is it going to fire?'
"[STATE]: I'll ask it differently. When you pulled that gun out, were you
planning to use it to throw it at [La]Shonda?
"[JACKSON]: I was planning to use it to defend myself, sir.
"[STATE]: And I'm asking about how you'd defend yourself. Were you
going to use it to hit her back with it?
"[JACKSON]: I was planning to defend myself.
"[STATE]: Ms. Jackson, how were you going to use that gun to defend
yourself?
"[JACKSON]: Well, I assume that when she seen that I had a gun that she
would know that I had a gun as well."
Moreover, after the first shot was fired, Jackson continued to pull the trigger, but
the gun had jammed.
The undisputed facts are that Jackson drew the firearm and Williams was killed
while that firearm was in Jackson's hands. That is deadly force. Beyond this
consideration, practically speaking, had an ordinary self-defense jury instruction been
given and the jury found facts supporting its application, Jackson's proposed ordinary
self-defense defense would have only absolved her of guilt through the drawing of the
firearm. Jackson is correct that simply drawing a firearm is ordinary force; however, once
the firearm was discharged, the line from ordinary force to deadly force was crossed. An
ordinary force self-defense instruction was not factually appropriate. Therefore, the
district court did not clearly err when it did not give such an instruction.
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C. The district court's failure to give a reckless involuntary manslaughter
instruction was harmless error.
Third, Jackson argues the district court erred in not giving the requested reckless
involuntary manslaughter instruction.
Jackson requested a reckless involuntary manslaughter instruction be given to the
jury before the district court but does not argue that the failure to instruct violated a
constitutional right. Therefore, any instructional error is reversible if we determine there
is a reasonable probability that the error affected the outcome of the trial in light of the
entire record. State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016). The State, as the
party benefitting from the error, has the burden to demonstrate there was no such
probability. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Unfortunately, the precise language that Jackson requested be given cannot be
discerned from the record on appeal because her proposed jury instructions are not
included in the record. Without the precise requested language, it is difficult to assess if
the instruction should have been given. But we assume Jackson's requested instruction
would have been based on the PIK and similar to the following language:
"If you do not agree that the defendant is guilty of voluntary manslaughter, you
should then consider the lesser included offense of involuntary manslaughter.
"To establish this charge, each of the following claims must be proved:
"1. The defendant killed [Michael Williams].
"2. The killing was done recklessly.
"3. This act occurred on or about the [17th] day of [March], [2018], in
[Wyandotte] County, Kansas." PIK Crim. 4th 54.180 (2019 Supp.).
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Importantly, as discussed, the district court gave an involuntary manslaughter jury
instruction based on the killing of Williams occurring during the commission of a lawful
act in an unlawful manner.
K.S.A. 2017 Supp. 21-5202 defines the mental states at issue in this case:
"(i) A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of
such person's conduct or to circumstances surrounding such person's conduct when such
person is aware of the nature of such person's conduct or that the circumstances exist. A
person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's
conduct when such person is aware that such person's conduct is reasonably certain to
cause the result. All crimes defined in this code in which the mental culpability
requirement is expressed as 'knowingly,' 'known,' or 'with knowledge' are general intent
crimes.
"(j) A person acts 'recklessly' or is 'reckless,' when such person consciously
disregards a substantial and unjustifiable risk that circumstances exist or that a result will
follow, and such disregard constitutes a gross deviation from the standard of care which a
reasonable person would exercise in the situation."
As a lesser included offense, a reckless involuntary manslaughter jury instruction
was legally appropriate. See State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019)
(holding involuntary manslaughter is a lesser included offense of first-degree
premeditated murder); Plummer, 295 Kan. at 161 (holding lesser included offense
instruction is legally appropriate).
But an instruction must also be factually appropriate. K.S.A. 2020 Supp. 22-
3414(3) requires a district court give a lesser included jury instruction when there is
"some evidence which would reasonably justify a conviction of some lesser included
crime." That evidence "need not be strong or conclusive to warrant the instruction." State
v. Maestas, 298 Kan. 765, 779, 316 P.3d 724 (2014). However, when evidence is
overwhelming, a defendant's "self-serving statement regarding his [or her] lack of intent
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[does] not in itself invoke a duty on the trial judge to instruct on recklessness." State v.
Calderon, 270 Kan. 241, 256, 13 P.3d 871 (2000). "[W]hether an otherwise unsupported
and self-serving statement of intent compels a lesser included offense instruction depends
on the extent to which the other evidence repudiates the statement." Seba, 305 Kan. at
204.
Here, the district judge decided not to give the requested reckless involuntary
manslaughter instruction because while it was legally appropriate, it was not factually
appropriate. Specifically, there was no evidence that supported a finding that Jackson
discharged the firearm recklessly; rather, she testified she was defending herself. The
district judge elaborated:
"I'm not going to give intentional—unintentional or reckless second degree or
reckless voluntary manslaughter. I don't believe her testimony or any other testimony in
this case—I believe the testimony of the other witnesses, which the Court has to look
at—I know any evidence at all includes a defendant's statement, but it also—there's case
law that says that this Court can discount if there's other overwhelming evidence
regarding that, a defendant's self-serving statement. Her statement here today, while she
was asked several times and given several opportunities to describe what happened, she
chose not to. All she kept saying was the gun discharged. She didn't say that it was in a
reckless manner. She said she was defending herself. And defending herself—and based
on—take that and combine that with the testimony of State's witnesses who said she
clearly was firing that gun, and the intended victim with the understand[ing]—if you take
the evidence to be that the intended victim was LaShonda—or I'm sorry, yeah, LaShonda
Watson because she—of this affair and because LaShonda had threatened her in a text
message two nights before, and then there had been this confrontation at the bar.
"It is clear to this Court that this was not a reckless act on her part. This was not a
case where she was just firing into a crowd. It wasn't a case where she was just firing her
gun over to scare anyone. It wasn't where she was just firing above everybody's heads.
She was trying to shoot LaShonda Watson. And the circumstances are that Charles
Brooks grabbed her arm and—at the same time and shot—wherever it went. And it didn't
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strike her but struck the—Michael Williams. And so I'm not going to give the lessers of
those." (Emphasis added.)
Factually, to obtain a conviction on reckless involuntary manslaughter, there must
be evidence that Jackson's act of firing the gun was reckless, not merely that drawing the
gun was reckless. There is no connection between an alleged act of recklessly drawing a
gun and that gun being discharged. See Thomas, 311 Kan. at 414 (distinguishing ordinary
force and deadly force, stating "[F]iring one's weapon need not inevitably follow the act
of drawing it, either factually or legally."). Thus, we are inclined to agree with the district
court's assessment of the factual appropriateness of a reckless involuntary manslaughter
instruction.
But according to Jackson's testimony, she did not fire the gun and had no intent to
fire the gun at all, be it at LaShonda, Williams, the crowd, or the ceiling. The State
responds that this lack of testimony as to intent renders the requested instruction factually
inappropriate. Yet, firing of the gun aside, Jackson argues that a reasonable juror could
have determined that drawing a gun during a fight in a crowded bar could factually
establish a reckless culpable mental state.
When the parties offer a variety of competing reasons why the requested
instruction was or was not factually appropriate, we frequently bypass the question of
whether the instruction was factually appropriate and move straight to the harmlessness
inquiry. Accordingly, we assume, without deciding, that when the evidence is viewed in
the light most favorable to Jackson, it was sufficient for a rational fact-finder to find for
her on the requested lesser included offense, making Jackson's requested instruction
factually appropriate. See State v. Salary, 301 Kan. 586, 598-99, 343 P.3d 1165 (2015).
Thus, we now proceed directly to determining whether the failure to give the instruction
was harmless.
18
The jury clearly and closely considered the definition of "knowingly," which is the
culpable mental state for voluntary manslaughter—Jackson's crime of conviction. See
K.S.A. 2017 Supp. 21-5202(i). Specifically, the jury asked: "What is the law's definition
of knowingly? Layman's terms." The district court answered this question in the
following way: "Please refer to the instructions, which define knowingly. That's the best
definition I can give you." Jury instruction No. 8 defined "knowingly" for imperfect self-
defense voluntary manslaughter as "The State must prove that the defendant committed
Voluntary Manslaughter knowingly. A defendant acts knowingly when the defendant is
aware of the nature of her conduct that the State complains about or of the circumstances
in which she was acting."
"Recklessly" is a less severe mental state than "knowingly." See Gentry, 310 Kan.
at 733 ("[T]he State can establish that a defendant acted recklessly if it proves that the
defendant acted knowingly or intentionally."); K.S.A. 2020 Supp. 21-5202(c) ("Proof of a
higher degree of culpability than that charged constitutes proof of the culpability charged.
If recklessness suffices to establish an element, that element also is established if a person
acts knowingly or intentionally. If acting knowingly suffices to establish an element, that
element also is established if a person acts intentionally.").
When considering the instructions as a whole, had the jury not been convinced
beyond a reasonable doubt that Jackson knowingly killed Williams, based on transferred
intent, it would not have convicted her of the crime which it did—imperfect self-defense
voluntary manslaughter. The jury was given the correct reasonable doubt instruction and
unanimity instruction. Had the jury not found evidence of the "knowingly" mental state,
it would have acquitted Jackson of this lesser included offense and either convicted her of
the involuntary manslaughter crime upon which it was instructed or acquitted Jackson
completely. It did not.
19
Beyond this logical deduction, there was no evidence presented at trial to support a
reckless state of mind. First, the firearm had a trigger safety and a grip safety, which
would only permit the gun to discharge if it was gripped properly, with a finger on the
trigger, and the trigger was pulled. Testimony at trial clearly indicated that such a firearm
safety set up prevents accidental discharges and that the gun would had to have been
gripped firmly in the firing position with a finger on the trigger and the trigger pulled to
be discharged. Moreover, our Supreme Court has held that "a defendant's actions in
pointing a gun at someone and pulling the trigger are intentional rather than reckless even
if the defendant did not intend to kill the victim." State v. Bailey, 263 Kan. 685, 691, 952
P.2d 1289 (1998). So, while Jackson testified she did not intend to kill Williams, or
anyone, she nevertheless pointed the gun at eye level at LaShonda and, based on the
testimony at trial regarding the trigger and grip safety of the firearm and eyewitness
accounts, she pulled the trigger, eliminating any reckless intent. Second, Brooks testified
that Jackson continued to pull the gun's trigger even after the first shot was fired,
negating any notion of a reckless discharge. Third, Jackson never testified she intended to
fire the gun merely to scare LaShonda. The uncontroverted evidence was that to fire the
gun it had to be held properly and the trigger had to be pulled properly for the gun to fire.
There is no evidence of a malfunction regarding the gun firing that night.
Additionally, the State's theory was that Jackson intentionally killed Williams
while trying to shoot LaShonda. Jackson tacitly testified that she never intended to shoot,
only brandish, the gun; rather, the firearm discharged unintentionally. But in closing,
defense counsel argued that any shooting was intentionally done in self-defense,
emphasizing "[Jackson] chose to act" and that she "shot first." Jackson did not argue for
acquittal on the theory that she shot unintentionally; she argued for acquittal based on a
theory of self-defense, a theory that her actions that night were justified. Yet the jury, in
rejecting Jackson's self-defense theory, found that Jackson was not justified in her use of
deadly force, and her actions were based upon an unreasonable but honest belief that
circumstances existed that justified deadly force in defense of a person.
20
The jury's finding of guilt on imperfect self-defense voluntary manslaughter,
combined with the parties' arguments and the ample evidence that Jackson acted
knowingly rather than recklessly, show there is no possibility that the jury would have
found Jackson killed Williams with mere recklessness had such a jury instruction been
given. The error was harmless.
II. DID CUMULATIVE ERROR DEPRIVE JACKSON OF A FAIR TRIAL?
Finally, Jackson argues even if none of the jury instruction errors are individually
reversible, she should be granted a new trial based on cumulative error.
The test for cumulative error is whether the totality of the circumstances
establishes the defendant was substantially prejudiced by cumulative errors and was
denied a fair trial. In assessing the cumulative effect of errors during the trial, we
examine the errors in the context of the entire record, considering how the trial judge
dealt with the errors as they arose; the nature and number of errors and their
interrelationship, if any; and the overall strength of the evidence. State v. Holt, 300 Kan.
985, 1007, 336 P.3d 312 (2014). However, a single nonreversible error does not
constitute reversible cumulative error. See State v. Williams, 299 Kan. 509, 566, 324 P.3d
1078 (2014), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332(2016).
Here, Jackson has identified at most one individually harmless error—the failure
to give a reckless involuntary manslaughter jury instruction. But this single assumed error
is insufficient to find cumulative error. Jackson received a fair trial.
21
III. DID THE DISTRICT COURT CORRECTLY CALCULATE JACKSON'S CRIMINAL
HISTORY SCORE?
Jackson also attacks her sentence. She argues her sentence is illegal because the
district court erroneously classified her prior identity theft conviction as a person offense.
Specifically, she argues that although identify theft was classified as a person offense at
the time she committed that crime, at the time she committed her crime of current
conviction its classification had changed to a nonperson offense and it should have been
classified as a nonperson offense for her criminal history score. Jackson objected to the
classification of her identity theft conviction at sentencing.
"The proper classification of a prior conviction is a question of law over which we
exercise unlimited review." State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016).
Similarly, our review to determine whether a sentence is illegal is unlimited. State v.
Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).
In 2005, Jackson was convicted of identity theft under K.S.A. 2004 Supp. 21-
4018. Under the statute applicable at the time, identity theft was classified as a person
offense. K.S.A. 2004 Supp. 21-4018(c). Yet in the 2005 legislative session, the
Legislature repealed parts of K.S.A. 21-4018 and replaced it with a new version. See L.
2005, ch. 131. Included in the amendments was the reclassification of identity theft as a
nonperson offense. K.S.A. 2005 Supp. 21-4018(c).
K.S.A. 2020 Supp. 21-6810(d)(8)—previously K.S.A. 21-4710(d)(8)—states:
"Prior convictions of a crime defined by a statute that has since been repealed shall be
scored using the classification assigned at the time of such conviction." Under the plain
language of this statute, it appears the district court properly scored Jackson's prior
identity theft conviction as a person felony because that is how the conviction was
classified prior to its repeal and replacement. Prior to 2015, other panels of this court held
22
that prior post-KSGA Kansas identity theft convictions must be scored as person felonies
because the criminal statute was repealed when identity theft was changed from a person
felony to a nonperson felony. See State v. Williams, No. 106,598, 2012 WL 3290006, at
*1-2 (Kan. App. 2012) (unpublished opinion); State v. Peoples, No. 102,550, 2010 WL
3984794, at *1 (Kan. App. 2010) (unpublished opinion).
However, in 2015, the Kansas Supreme Court issued State v. Keel, 302 Kan. 560,
588, 357 P.3d 251 (2015), which stated that sentences should "reflect ever-evolving
sentencing philosophies and correction goals" and opined in dicta that, as such, prior
identity theft convictions should be classified to reflect "the current viewpoint on the
severity of identity theft."
Yet Keel interpreted K.S.A. 21-4710 (now K.S.A. 2020 Supp. 21-6810) to
determine how to classify pre-KSGA Kansas felony convictions not designated as either
person or nonperson crimes when calculating a defendant's criminal history score for
sentencing on a post-KSGA crime. That is not the situation here. The Keel court
concluded, based on an analysis of K.S.A. 21-4710(d)(9)—now K.S.A. 2020 Supp. 21-
6810(d)(8)—that "[t]he clear implication is that if the statute has not been repealed, then
the crime is scored using the classification in the statute at the time of the current crime
of conviction." 302 Kan. at 580.
Further, Keel does not take into account the amendments made to K.S.A. 21-6810
in 2015. L. 2015, ch. 5, § 1. In those amendments, the Kansas Legislature added
clarifying language to K.S.A. 21-6810(d)(2). Prior to the amendment, subsection (d)(2)
stated: "All prior adult felony convictions, including expungements, will be considered
and scored." However, after the amendment, K.S.A. 2015 Supp. 21-6810(d)(2) stated:
"All prior adult felony convictions, including expungements, will be considered and
scored. Prior adult felony convictions for offenses that were committed before July 1,
1993, shall be scored as a person or nonperson crime using a comparable offense under
23
the Kansas criminal code in effect on the date the current crime of conviction was
committed." (Emphasis added.) The Legislature explicitly stated: "The amendments
made to this section by section 1 of chapter 5 of the 2015 Session Laws of Kansas are
procedural in nature and shall be construed and applied retroactively." K.S.A. 2020 Supp.
21-6810(e).
Jackson argues that Keel and the language in K.S.A. 2020 Supp. 21-6810(d)(2)
requiring convictions be scored using the comparable offense "in effect on the date the
current crime of conviction was committed" mean that the district court should have used
the version of identity theft in effect at the time Jackson committed her present crime of
conviction, voluntary manslaughter. However, this argument ignores a very important
part of the statute—this subsection applies to "[p]rior adult felony convictions for
offenses that were committed before July 1, 1993." K.SA. 2020 Supp. 21-6810(d)(2).
Jackson's prior identity theft conviction does not meet that criterion.
We agree with the recent decision in State v. Terrell, 60 Kan. App. 2d 39, 46, 488
P.3d 520 (2021), which held: "The reasonable and sensible application of the KSGA is
for post-KSGA Kansas convictions to be classified based on the classification in effect at
the time of the prior crime of conviction." In that case, as here, the district court changed
the classification of one of Terrell's post-KSGA convictions because the Legislature had
subsequently changed the felony's person/nonperson classification. The panel held that
Terrell's 2004 conviction, which was initially classified as a nonperson felony, was
improperly reclassified as a person felony in calculating his criminal history score. 60
Kan. App. 2d at 47. That panel elaborated:
"A reasonable interpretation of K.S.A. 2020 Supp. 21-6810(d)(8) reflects a
legislative intent to classify in-state convictions under subsequently repealed statutes as
person or nonperson offenses based on the classification in effect at the time of the prior
conviction. But we find nothing in the KSGA reflecting a legislative intent to reclassify
24
prior post-KSGA convictions based on subsequent amendments to existing statutes.
Compare K.S.A. 2020 Supp. 21-6810(d)(8) with K.S.A. 2020 Supp. 21-6810(d)(2),
(d)(3)(B), (d)(6), and K.S.A. 2020 Supp. 21-6811(e)(3)." 60 Kan. App. 2d at 47.
The Terrell panel came to this conclusion based on the principle of statutory
construction known as expressio unius est exclusio alterius, i.e., the inclusion of one
thing implies the exclusion of another. Under that principle, the panel explained that
"the Legislature has provided four distinct times where the KSGA specifically directs a
sentencing court to compare the prior conviction to the comparable in-state offense as of
the date of the current crime of conviction in order to classify it as a person or nonperson
offense:
• pre-KSGA Kansas adult felony convictions under K.S.A. 2020 Supp. 21-
6810(d)(2);
• pre-KSGA juvenile felony adjudications under K.S.A. 2020 Supp. 21-
6810(d)(3)(B);
• pre-KSGA Kansas adult misdemeanor convictions under K.S.A. 2020 Supp.
21-6810(d)(6); and
• prior out-of-state convictions and juvenile adjudications under K.S.A. 2020
Supp. 21-6811(e)(3)." 60 Kan. App. 2d at 44.
Thus, the panel held:
"The explicit statutory directions in K.S.A. 2020 Supp. 21-6810(d)(2), (d)(3)(B),
and (d)(6), and K.S.A. 2020 Supp. 21-6811(e)(3) refer only to pre-KSGA in-state and out-
of-state convictions or adjudications. The common thread of such convictions is they did
not occur under the KSGA and, as such, had no Kansas person or nonperson
classification. However, the post-KSGA Kansas Criminal Code generally classifies
criminal offenses as person or nonperson. See K.S.A. 2020 Supp. 21-5101 et seq. While
there is an obvious need to compare out-of-state convictions and pre-KSGA in-state
convictions to current Kansas statutes for classification purposes, there is no such need
for post-KSGA in-state convictions; the Kansas Criminal Code generally provides the
25
classification at the time of the crime and related conviction. It seems tenuous at best to
believe the Legislature, having provided clear, explicit guidance for pre-KSGA offenses
under K.S.A. 2020 Supp. 21-6810(d)(2), (d)(3)(B), and (d)(6), and K.S.A. 2020 Supp.
21-6811(e)(3), would only implicitly provide for classification of post-KSGA offenses
under K.S.A. 2020 Supp. 21-6810(d)(8)." 60 Kan. App. 2d at 46.
Because Jackson's prior identity theft conviction occurred after enactment of the
KSGA, we find Keel inapplicable and instead agree with Terrell that under K.S.A. 2020
Supp. 21-6810(d)(8), post-KSGA Kansas convictions are to be classified based on the
classification in effect at the time of the prior crime of conviction. Therefore, in 2004,
when Jackson was convicted of identity theft, the Legislature classified the crime as a
person felony. Therefore, the district court correctly classified that conviction as a person
felony under K.S.A. 2020 Supp. 21-6810(d)(8) for the purposes of determining her
criminal history score. Jackson's sentence is not illegal, and the district court correctly
calculated her criminal history score.
IV. IS JACKSON'S RESTITUTION ORDER ILLEGAL?
Next, Jackson argues that her restitution order is illegal. While she does not
challenge the restitution amount, she argues the plain language of K.S.A. 2019 Supp. 21-
6604(b) requires the district court to establish a plan of restitution repayment when
ordering restitution. Because the district court failed to do so, Jackson reasons, its
restitution order is illegal. Jackson asks us to vacate the restitution order and remand to
the district court so that it may establish a restitution plan of repayment.
Restitution is part of a defendant's sentence. State v. Johnson, 309 Kan. 992, 996,
441 P.3d 1036 (2019). A court can "correct an illegal sentence at any time while the
defendant is serving such sentence." K.S.A. 2020 Supp. 22-3504(a). A sentence is illegal
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
26
ambiguous about the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-
3504(c)(1); State v. Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019). However, a
sentence is not illegal "because of a change in the law that occurs after the sentence is
pronounced." K.S.A. 2020 Supp. 22-3504(c)(1). A change in the law is one made by a
statutory change or a Kansas appellate court opinion, "unless the opinion is issued while
the sentence is pending an appeal from the judgment of conviction." K.S.A. 2020 Supp.
22-3504(c)(2). Jackson argues this order of restitution constitutes an illegal sentence
because it does not conform to the requirements of K.S.A. 2019 Supp. 21-6604(b) and
because it is ambiguous with respect to the time and manner in which it is to be served.
See K.S.A. 2020 Supp. 22-3504(c)(1).
We review the "'amount of restitution and the manner in which it is made to the
aggrieved party'" for an abuse of discretion, and we exercise unlimited review of legal
questions involving the interpretation of the underlying statutes. State v. Martin, 308 Kan.
1343, 1349-50, 429 P.3d 896 (2018).
The district court ordered Jackson to pay $5,000 in restitution to the Crime
Victims Compensation Board. At sentencing, Jackson's counsel loosely objected to the
order of restitution, stating, "My client's going to prison. I mean, I certainly don't know
how she's going to pay it while she's there. So I will object at this time but let the Court
make that call." The district judge did not alter the amount of restitution and did not
specify whether payment was to be made immediately, later, or in installments. Instead,
the district judge stated, "Well, I will order in the amount of $5,000, though I will say I'm
not sure if and when that would be collected. But I will order it."
When Jackson was sentenced in August 2019, K.S.A. 2019 Supp. 21-6604(b)
governed restitution orders and stated in relevant part:
27
"(1) . . . [T]he court shall order the defendant to pay restitution . . . unless the court
finds compelling circumstances that 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 the
payment of restitution, . . . the court shall assign an agent . . . to collect the restitution on
behalf of the victim." (Emphases added.)
While this case has been on appeal, another panel of this court held that this statute
required the district court to set a restitution plan. State v. Roberts, 57 Kan. App. 2d 836,
845, 461 P.3d 77, vacated and remanded 2020 WL 8269363, at *1 (2020). Jackson bases
her argument that her restitution order is illegal on the Roberts opinion. But subsequent to
the briefing in this case, Roberts was summarily vacated by our Supreme Court and
remanded to the panel for consideration of the statutory amendments to K.S.A. 2019
Supp. 21-6604 and K.S.A. 2019 Supp. 21-6607. 2020 WL 8269363, at *1. Moreover, a
different panel of this court took the contrary opinion and held that K.S.A. 2017 Supp.
21-6604(b), which is identical in relevant part with the 2019 version, contained no
requirement that the sentencing court establish a plan for the repayment of restitution.
State v. Garza, No. 118,840, 2019 WL 1412444, at *5 (Kan. App.) (unpublished
opinion), rev. denied 310 Kan. 1066 (2019).
The State advances two lines of defense against Jackson's argument. First, it
argues that Roberts was wrongly decided as it took inconsistent views of the meaning of
the word "plan" in the statute. The State contends that the plain language of K.S.A. 2019
Supp. 21-6604(b) does not require the district court to make a restitution payment plan
for Jackson. Second, it argues that the 2020 amendments to K.S.A. 21-6604(b) operate
retroactively and effectively overrule Roberts. The State also argues that the 2020
amendments provide Jackson an avenue by which she can seek relief.
28
The State is correct that subsequent to Roberts, and perhaps in response to the
panel's opinion, the Legislature amended K.S.A. 21-6604(b), effective June 11, 2020, to
remove all references to a restitution plan. L. 2020, ch. 9, § 1. The amended version
states:
"(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).
The changes between the 2019 and 2020 versions primarily function to remove
any allusion to a restitution plan from the language of the statute. The phrase "would
render a restitution plan unworkable" in the 2019 version became "would render
restitution unworkable" in the 2020 version, while the phrase "if the court finds a
restitution plan unworkable" became "if the court finds restitution unworkable." Finally,
the language "in noncompliance with the plan established by the court for the payment of
restitution" became "in noncompliance with the restitution order." These alterations to the
statutory language are not substantive except in the removal of any reference to a plan.
With the 2020 amendments, the Legislature also added both a retroactivity clause
and a subsection providing an avenue for relief for a defendant who was not given a
specified time to pay restitution or a restitution installment plan. The retroactivity clause
reads as follows: "The 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).
29
The other new subsection allows a defendant who is subject to a restitution order issued
prior to the effective date of the 2020 amendments and which lacks a specified time to
pay or an installment plan until December 31, 2020, to file a motion with the sentencing
court seeking such a restitution order:
"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).
In her reply brief, Jackson outlines what she sees as numerous faults with the 2020
amendments and argues they cannot be applied retroactively to eliminate her right to a
restitution payment plan. Alternatively, Jackson submits that if the 2020 amendments do
apply, then "she requests remand under K.S.A. 2020 Supp. 21-6604(b)."
A. The restitution order is legal under K.S.A. 2019 Supp. 21-6604(b).
We need not address the State's position that the 2020 amendments to K.S.A. 2019
Supp. 21-6604(b) apply retroactively because we agree with both the State and the panel
in Garza that K.S.A. 2019 Supp. 21-6604(b) does not render Jackson's restitution order
illegal as its plain language does not require the district court to order a restitution
payment plan. Garza, 2019 WL 1412444, at *6.
The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be ascertained.
30
"'An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. When a
statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it. . . . Only if the statute's language or text is unclear or ambiguous does the court use
canons of construction or legislative history . . . to construe the legislature's intent.'
[Citation omitted.] State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018).
"[W]hen construing statutes to determine legislative intent, [we] must consider various
provisions of an act in pari materia, with a view toward reconciling and bringing the
provisions into workable harmony if possible." Keel, 302 Kan. at 573-74.
Like the Garza panel, we find it significant that our Supreme Court, when
construing K.S.A. 2019 Supp. 21-6604(b), has not held that the district court must set out
a restitution payment plan. See State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364(2014); see also State v. Jamerson, 54 Kan. App. 2d 312, 316-17, 399 P.3d 246 (2017)
(when district court fails to make clear that restitution is due immediately, it becomes due
when prisoner is released from prison). In fact, the State's position that the plain language
of K.S.A. 2019 Supp. 21-6604(b) does not require the district court to establish a
restitution payment plan is bolstered by other Kansas Supreme Court opinions which
have upheld restitution orders without payment plans. See 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). Moreover, as we have mentioned, our Supreme
Court vacated the holding in Roberts while it declined to review Garza's contrary
holding.
Jackson latches onto the phrase "plan of restitution" and argues this requires the
district court to order a payment plan when ordering restitution. "However, the statute
makes no mention of any sort of payment plan that must be set up by the district court.
Instead, the phrase 'plan of restitution' simply refers to the plan that a defendant begin
31
paying restitution when he or she is released from prison." Garza, 2019 WL 1412444, at
*5. We agree with the Garza panel's conclusion that to adopt the view that the statute
requires a restitution payment plan is to read language into the statute that is not there,
something we are not permitted to do. 2019 WL 1412444, at *5. Thus, the district court's
restitution order was legal because it set the amount owed by Jackson; nothing more was
required by K.S.A. 2019 Supp. 21-6604(b).
But Jackson also cites to the language contained in K.S.A. 2019 Supp. 22-3717(n),
which states that when a prisoner is released from incarceration, "the prisoner review
board shall order as a condition of parole or postrelease supervision that the inmate pay
restitution in the amount and manner provided in the journal entry . . . ." She argues that
this language, when read in conjunction with K.S.A. 2019 Supp. 21-6604(b), bolsters her
claim that a restitution payment plan is required. "But the statute does not mention a
payment plan, nor does it obligate the sentencing court to establish a payment plan when
ordering restitution. Instead, it simply requires the prisoner review board to comply with
the sentencing court's restitution order." Garza, 2019 WL 1412444, at *6. Thus, the
restitution order conforms with the requirements of the restitution statute.
Also, there is no ambiguity to the district court's restitution order. As we have
already outlined, the district court clearly set out the restitution amount, which Jackson
does not challenge. As to when restitution is to become due and owing, given the district
court's silence, it does not become due until Jackson is released from prison. See
Alderson, 299 Kan. at 151. Jackson's restitution order is legal.
B. It is too late to seek relief under K.S.A. 2020 Supp. 21-6604(b)(3).
Although the restitution statute was amended after Jackson was sentenced, our
Supreme Court has held that "in a direct appeal, a defendant will receive the benefit of
any change in the law that occurs while the direct appeal is pending." State v. Murdock,
32
309 Kan. 585, 591, 439 P.3d 307 (2019). One such benefit included in the 2020
amendments to K.S.A. 21-6604 is the addition of new subsection (b)(3), which allows
defendants with restitution orders imposed prior to the enactment of the 2020
amendments to seek a revised restitution order in the district court allowing restitution to
be paid in installments. But this provision contains a deadline for seeking relief of
December 31, 2020. See K.S.A. 2020 Supp. 21-6604(b)(3). Jackson asks us, in the
alternative, that should we deny her request for relief under the restitution statute as it
existed at the time she was sentenced—which we have—to remand the case to the district
court for that purpose.
Another panel of this court considered the 2020 amendments in State v. Logan,
No. 122,116, 2021 WL 645929 (Kan. App. 2021) (unpublished opinion). Logan's
restitution order was likewise issued before the 2020 amendments and did not include a
payment plan. While his appeal was pending, Logan requested the panel to stay the
appeal and remand the case to the district court so that Logan could timely file a motion
regarding the method of paying for restitution with the district court. The panel granted
the stay and the remand. But at a December 15, 2020, hearing before the district court,
Logan waived his right to have a payment plan established, yet he also stated he was not
waiving his right to request a payment plan in the future, once his appeal was final. Once
back before our court, the panel lifted the stay and issued a decision in which it noted that
Logan's "remedy for the district court's alleged error in not providing a payment plan for
its order of restitution lies solely with the district court by making a timely motion under
K.S.A. 2020 Supp. 21-6604(b)(3)." Logan, 2021 WL 645929, at *4. The panel further
found that Logan failed to adequately support his claim that he was entitled to some
future right to have the district court establish installment payments once his appeal was
final and deemed that argument abandoned. 2021 WL 645929, at *4.
We also note that the Roberts panel, after having the case sent back to it by our
Supreme Court, did remand the case to the district court to allow the defendant to motion
33
the district court for relief under K.S.A. 2020 Supp. 21-6604(b)(3). However, that remand
order was issued in October 2020, prior to the expiration of the December 31, 2020,
deadline.
Here, Jackson's appeal was docketed on September 16, 2019; Jackson filed her
first brief on May 5, 2020, and her reply brief on September 23, 2020—well before the
statutory December 31, 2020 deadline. However, Jackson has never asked us for a stay of
her appeal as Logan did, and the deadline for that avenue of relief has now passed. Given
that K.S.A. 2020 Supp. 21-6604(b)(3) stipulates that a defendant seek relief in the district
court, not an appellate court, Jackson's remedy lies there. As Jackson failed to avail
herself of the statutory right to file a motion in the district court or request a stay from us
to do so prior to the deadline, K.S.A. 2020 Supp. 21-6604(b)(3) now provides no avenue
whereby Jackson is entitled to request that her restitution be paid in specified
installments.
V. DID THE DISTRICT COURT VIOLATE JACKSON'S CONSTITUTIONAL RIGHTS WHEN IT
FAILED TO REQUIRE THE STATE TO PROVE HER PRIOR CONVICTIONS BEYOND A
REASONABLE DOUBT BEFORE USING THOSE CONVICTIONS TO INCREASE HER
SENTENCE?
Finally, Jackson argues the district court violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution when it used her prior
convictions to enhance her sentence without requiring the State to prove those prior
convictions to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S.
466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (any fact that increases defendant's
maximum penalty must be proven to jury beyond reasonable doubt). Jackson recognizes
the Kansas Supreme Court has rejected this argument, but she includes the issue to
preserve it for federal review. See State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737(2018); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002); see also State v. Raschke,
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289 Kan. 911, 912, 219 P.3d 481 (2009) ("We reject this claim as controlled by . . .
[Ivory]. It requires no further discussion."). Because there is no indication the Kansas
Supreme Court is departing from this position, we are duty-bound to follow established
precedent. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). The district
court correctly determined Jackson's criminal history to establish her sentence.
Affirmed.
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