STATE OF KANSAS, Appellee, v. WENDY HUFF, Appellant.
No. 110,750
Court of Appeals of Kansas
October 24, 2014
336 P.3d 397
1094
Christinа M. Kerls, of Kansas Appellate Defender Office, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.
POWELL, J.: According to the United States Supreme Court, with the exception of any prior conviction, the Sixth Amendment to the United States Constitution requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Wendy Huff argues in the present appeal that the district court violated this directive when it imposed restitution without requiring the State to prove tо a jury whether her actions caused the victim‘s damages. Because restitution is neither a penalty nor an increase in a defendant‘s maximum sentence, we hold Apprendi is inapplicable to restitution and, therefore, affirm the district court.
FACTUAL AND PROCEDURAL HISTORY
In January 2010, Ankit Patel, Vice President of Diamond Saline, LLC, a Howard Johnson Motel, hired Wendy Huff as a hotel manager. When Patel arrived at the hotel on December 15, 2010, the motel doors were locked and he discovered that Huff had moved out of her residence at the motel. Later that day, Patel discovered that Huff had transferred $19,745.10 from the corporation‘s bank account to her personal bank account and had attempted to transfer an additional $8,407.90, but those transactions had failed to clear. Patel also learned there was $14,575.00 in cash missing and $2,224.31 worth of supplies missing.
Huff ultimately pled no contest in two cases. In the first, she pled to one count of felony theft pursuant to
On April 15, 2013, the district court imposed an underlying sentence of 12 months’ imprisonment but granted probation for a term of 24 months. The court also imposed restitutiоn of $80 in the second case, as agreed by the parties, but noted that restitution in the first case would be decided on a later date. Huff subsequently filed a motion to bar restitution pursuant to Apprendi, arguing restitution would increase her maximum statutory sentence, thereby requiring restitution to be proven to a jury beyond a reasonable doubt. The State filed a response, arguing Apprendi was not applicable to restitution. The parties agreed to forego a hearing and submitted the issue of restitution to the district court on their written arguments. On October 7, 2013, the district court determined that Apprendi was not applicable and ordered Huff to pay $105,000 in restitutiоn.
Huff timely appeals.
DOES APPRENDI REQUIRE THE JURY TO MAKE THE FACTUAL DETERMINATION THAT THE DEFENDANT‘S CRIMINAL CONDUCT CAUSED THE DAMAGES OR LOSS?
Huff argues the district court violated her constitutional right to a jury trial under Apprendi when it imposed restitution without requiring the State to prove to a jury that her actions caused $105,000 in damages or loss. Conversely, the State argues Huff‘s plea agreement bars her argument and Apprendi is inapplicable to restitution. Huff does not challenge the district court‘s decision as to the amount of restitution to be paid.
Standard of review
Whether the district court violated Huff‘s constitutional rights by ordering restitution without a jury determination is a question
Analysis
At the time Huff was sentenced, she was placed on probation. Because a defendant is sentenced pursuant to the law in effect at the time the crime was committed,
“[T]he court shall order the defendant to ... [m]ake reparation or restitution to the aggrieved party for the damage or lоss caused by the defendant‘s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
In her brief, Huff correctly argues that the district court was required to make three faсtual findings in order to impose restitution: (1) the causal link between the defendant‘s crime and the victim‘s loss; (2) the amount of restitution; and (3) a determination of whether the restitution plan was unworkable. See State v. Goeller, 276 Kan. 578, 580-81, 77 P.3d 1272 (2003) (” ‘[I]n Kansas, restitution for a victim‘s damages or loss depends on the establishment of a causal link between the defendant‘s unlawful conduct and the victim‘s damages.’ ” [quoting State v. Hunziker, 274 Kan. 655, Syl. ¶ 9, 56 P.3d 202 (2002)]); see also State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014) (restitution amount can only be set by sentencing judge in open court with defendant present); Goeller, 276 Kan. at 583 (restitution required unless court finds it unworkable). Huff maintains that in light of Apprendi and the more recent case of Southern Union Co. v. United States, 567 U.S. 132, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), the restitution statute unconstitutionally permits an increase in her maximum sentence by allowing the district court to make the necessary factual findings to impose restitution, which Huff argues is impermissible and violates her Sixth Amendment right to a jury trial because these
The State responds with two lines of defense: First, because Huff agreed in her plea agreement to pay rеstitution in an amount to be determined at a later hearing, her challenge to the restitution order is barred; and second, relying principally on United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012), cert. denied 133 S. Ct. 2038 (2013), because the restitution statute contains no prescribed maximum, Apprendi is inapplicable to restitution. Huff acknowledges that a similar argument to hers was rejected in Day but argues Day was wrongfully decided.
First, wе easily reject the State‘s argument that the plea agreement bars Huff‘s challenge to the restitution order. Plea agreements are contracts between the State and a defendant, see State v. Wills, 244 Kan. 62, 67-68, 765 P.2d 1114 (1988); therefore, the interpretation of such a contract is a legal question over which we exercise unlimited review. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). An ambiguous plea agreement must be strictly construed against the State. Wills, 244 Kan. at 69. A review of the language in the plea agreement reveals one agreement involving two cases. Only in the second case—the misdemeanor charge of giving of a worthless check—did Huff agree to be resрonsible for full restitution. In fact, at sentencing, the district court imposed the agreed-upon restitution amount of $80. Huff does not challenge this order.
However, in the case to which Huff pled guilty to felony theft, the parties merely agreed that restitution would be determined at a hearing to be scheduled after sentencing. The plea agreement did not contain any language providing for Huff‘s agreement to pay restitution. While the plea agreement did contain Huff‘s waiver of her right to a jury trial, we note the waiver language was in the context of the State‘s requirement to prove each element of the crimes beyоnd a reasonable doubt. Viewing the plea agreement language strictly against the State, we conclude that Huff did not agree to restitution and is not barred from challenging it, though we note on appeal that she does not challenge the restitution amount of $105,000.
While it is undeniable that restitution is part of a defendant‘s sentence, it does not mean restitution is punishment. Sеe State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011); State v. Hall, 45 Kan. App. 2d 290, 298, 247 P.3d 1050 (2011) (restitution not part of punishment or sanction for defendant‘s conduct), aff‘d 297 Kan. 709, 304 P.3d 677 (2013). In fact, a sentence does not contain only punishment or sanctions. See State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (BIDS attorney fees imposed at sentencing not part of punishment or sanction for defendant‘s criminal conduct but a “recoupment“). Our Supreme Court has found: “Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence.” State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999).
In Applegate, our Supreme Court addressed the question of whether a district court could refuse to impose restitution when the victims successfully obtained a civil judgment against the defendant and the defendant received a release of all claims from the victims. The court noted that while restitution was not merely victim compensation and had a deterrence and rehabilitative function, it discussеd with approval the Arizona Supreme Court‘s discussion of restitution as something distinguished from fines, which are punitive, and that which should not be imposed to “confer a windfall on the victim.” 266 Kan. at 1076 (citing State v. Iniguez, 169 Ariz. 533, 537, 821 P.2d 194 [1991]). While stating that district judges had discretion in imposing restitution, the Applegate court found that the restitution statute measured restitution as “the amount that reimburses the victim for the actual loss suffered.” 266 Kan. at 1079; see also State v. Davis, 48 Kan. App. 2d 573, 575, 294 P.3d 353 (2013) (“restitution should be provided only up to the amount of the victim‘s loss” [citing Hunziker, 274 Kan. at 663-64]),
Accordingly, in our view, because restitution ordered as a condition of probation is limited to the victim‘s actual loss, it lacks a punitive element and therefore is not punishment. See People v. Wasbotten, 225 Cal. App. 4th 306, 309, 169 Cal. Rptr. 3d 878 (2014) (restitution not punishment); State v. Field, 328 Mont. 26, 32, 116 P.3d 813 (2005) (same); but see
Huff urges us to find the reasoning in Southern Union abrogates the holdings of many cases which have held Apprendi to be inapplicable to restitution. In Southern Union, the jury convicted the defendant corporation of knowingly storing hazardous waste without a permit in violation of federal law. The criminal violations were punishable by a fine of up to $50,000 for each day the defendant violated the law. However, the jury did not makе specific factual findings as to the number of days the corporation violated the law. Instead, the trial court imposed an aggregate fine of $38.1 million and determined from the ” ‘content and context of the verdict all together’ that the jury found a 762-day violation” of the law.
Although Southern Union expanded Apprendi‘s reach, not every punitive aspect of a sentence necessarily implicates Apprendi. See, e.g., Oregon v. Ice, 555 U.S. 160, 167-72, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009) (right to a jury trial does not prohibit judges from making factual findings to impose consecutive or concurrent sentences); State v. Carr, 274 Kan. 442, 451-52, 53 P.3d 843 (2002) (Apprendi does not prohibit judges from imposing dispositional departures from probation to prison); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (use of criminal history to enhance defendant‘s sentence does not violate Apprendi).
Unlike in Southern Union, where the defendаnt‘s criminal sentence was increased beyond the maximum based upon factual findings made by the trial court, the common theme of the cases cited and relied upon by the State contain no Apprendi violations because there was no increase in the penalty beyond the statutory maximum. We think it significant that thе United States Supreme Court, when discussing the history of a defendant‘s right to be punished only in accordance with facts proved to a jury, stated: “We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481; see also Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013) (facts which increase mandatory minimum sentences must be submitted to the jury does not mean any fact that influences judicial discretion must be found by jury); Prickett v. State, 856 N.E.2d 1203, 1210 (Ind. 2006) (Apprendi, as followed by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 [2004], inapplicable because restitution historically imposed by judges).
Consistent with this rationale, our Supreme Court in Carr, for example, held that a district court‘s findings did not imрlicate Ap-
The Day court held there was no statutory maximum in the restitution context under federal law because the court had the ability to order an indeterminate amount of restitution based upon the аmount of damage and the injury caused by the offense, all of which vary from case to case:
“Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir. 2006) (‘[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order.‘). Day argues that we should break ranks with these prior decisions in light of Southern Union and apply Apprendi to restitution because it is ‘similar’ to a criminal fine.
“We decline to take Day‘s suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date. That is, Southern Union makes clear that Apprendi requires a jury determination rеgarding any fact that ‘increases the penalty for a crime beyond the prescribed statutory maximum.’ [Citations omitted.] Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. [Citation omitted.]
“Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. [Citation omitted.] As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court‘s entry of restitution.” Day, 700 F.3d at 732.
Accord United States v. Green, 722 F.3d 1146, 1150-51 (9th Cir. 2013) (Apprendi inapplicable to restitution); United States v. Wolfe, 701 F.3d 1206, 1215-18 (7th Cir. 2012) (same), cert. denied 133 S. Ct. 2797 (2013); United States v. Milkiewicz, 470 F.3d 390, 402-04 (1st Cir. 2006) (same); United States v. Reifler, 446 F.3d 65, 114, 118-20 (2d Cir. 2006) (same); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006) (same); United States v. Leahy, 438 F.3d 328, 336-38 (3d Cir. 2006) (same);
“For restitution, however, the jury‘s finding of guilt leads to only one outcome; in every case in which such punishment is imposed, ‘the jury‘s verdict automatically triggers restitution in the “full amount of each victim‘s losses.“’ [Citation omitted.] Post-conviction judicial fact-finding to determine that amount ‘by no means impos[es] a punishment beyond that authorized by jury-found or admitted facts,’ or ‘beyond the “statutory maximum” as that term has evolved in the Supreme Court‘s Sixth Amendment jurisprudence.’ [Citations omitted.]” Milkiewicz, 470 F.3d at 404.
Because restitution to the victim in the amount of the victim‘s losses is required upon a guilty verdict under the federal restitution statute and because there is no prescribed statutory maximum for restitution, restitution is not subject to Apprendi. See Wolfe, 701 F.3d at 1216-18 (Because there is no statutory maximum for restitution, the Sixth Amendment right to a jury trial does not apply to restitution.).
The same is true for Kansas’ restitution statute. In every case, the victim is entitled to restitution based upon the victim‘s damages to the extent the offense caused such damages, all of which vary from case to case. Unless a plan of restitution is unworkable, there are generally no limits as to what such restitution amounts can be, so Apprendi is not implicated. See also People v. Smith, 181 P.3d 324, 326-27 (Colo. App. 2007) (statute does not prescribe maximum restitution amount so Apprendi inapplicable); Smith v. State, 990 N.E.2d 517, 521-22 (Ind. App. 2013) (same); Commonwealth v. Denehy, 466 Mass. 723, 736-38, 2 N.E.3d 161 (2014) (same); State v. Maxwell, 802 N.W.2d 849, 851-52 (Minn. App. 2011) (same); State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007) (same); State v. Martinez, 392 N.J. Super. 307, 315-18, 920 A.2d 715 (2007) (same); State v. Webster, 220 Or. App. 531, 534-35, 188 P.3d 329 (2008) (same); State v. Kinneman, 155 Wash. 2d 272, 280-82, 119 P.3d 350 (2005) (same).
Huff tries to avoid this result by distinguishing the cases that reach this conclusion and arguing it is not determining the amount of restitution that is at issue but the factual findings establishing the causal link between the offense and the victim‘s damages. We think this is a distinction without a difference. The key here is that restitution is required in every case upon a finding of guilt, and there is no statutory maximum to restitution that could increase the maximum statutory penalty. Apprendi requires nothing more. The district court did not violate Huff‘s Sixth Amendment rights by ordering her to pay restitution.
The district court‘s restitution order is affirmed.