State v. RobisonState v. Robison
1. Generally, a constitutional issue not raised before the district court is deemed waived or abandoned. Nevertheless, appellate courts can review issues presented on appeal where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. However, even if an exception would support a decision to review a new claim, appellate courts have no obligation to do so.
2. The right to a jury trial is a fundamental right under both
3.
4. Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant‘s commission of the offense that caused the injury or damage. Although part of the criminal sentence, restitution is intended to fairly compensate the victims of crime who actually suffered an injury or damage rather than the government.
5. The imposition of criminal restitution by a district judge under
6. Neither
7. The imposition of criminal restitution by a district judge under
8. Neither
Affirmed.
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed June 26, 2020.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.
BRUNS, J.: Robert James Robison, III pled no contest to one count of battery of a law enforcement officer. As part of his sentence, the district court required Robison to pay $2,648.56 in restitution to reimburse a workers compensation insurance carrier that had paid the medical expenses of the law enforcement officer injured as a result of the battery. On appeal, Robison contends that the order of restitution violates both
FACTS
On January 3, 2018, the State charged Robison with two counts of battery of a law enforcement officer in violation of
Prior to trial, the parties entered into a plea agreement in which Robison agreed to plead no contest to one count of battery of a law enforcement officer. In exchange, the State agreed to dismiss the second count and further agreed not to request a fine. On March 20, 2018, the district court accepted Robison‘s no-contest plea and found him guilty of a single count of battery of a law enforcement officer arising out of the attack on Corporal Cutright. A few months later, the district court sentenced Robison to 32 months’ imprisonment and 24 months’ post-release supervision. Complying with the terms of the plea agreement, the district court did not impose a fine. However, the district court agreed to consider the State‘s request for restitution and continued the resolution of the request until a later date.
At a restitution hearing held on August 21, 2018, the State requested that Robison pay $2,648.56 in restitution to reimburse the workers compensation insurance carrier that paid Corporal Cutright‘s medical bills arising out of the battery. A hospital employee testified about the medical bills and verified that they had been paid by the insurance carrier. Robison‘s counsel did not dispute the amount of the medical bills or that they arose out of the attack on Corporal Cutright. Instead, defense counsel argued that the workers compensation insurance carrier was not entitled to restitution and had not requested reimbursement.
After considering the evidence and the arguments of counsel, thе district court found that the medical bills incurred by Corporal Cutright were caused by Robison‘s crime and that Lyon County‘s insurance carrier had paid the medical expenses on the officer‘s behalf. Accordingly, the district court ordered Robison to pay restitution in the amount of $2,648.56 to reimburse the workers compensation insurance carrier for the medical expenses it had paid.
On appeal, Robison raises three issues. First, Robison contends that the Kansas restitution statutes violate
PRESERVATION
At the outset, we must determine whether Robison‘s constitutional claims are properly before this court. The State argues that these issues were not properly preserved at the district court level and we should not consider them. It is undisputed that Robison asserts violations of the Kansas Constitution and the United States Constitution for the first time on appeal. Whether an issue has been properly preserved for appeal is a question of law that we review de novo. State v. Haberlein, 296 Kan. 195, 203, 290 P.3d 640 (2012).
Generally, a constitutional issue not raised before the district court is considered to be waived or abandoned. Nevertheless, we can review issues presented on appeal in cases where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. State v. Perkins, 310 Kan. 764, 768, 449 P.3d 756 (2019). “The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so.” State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020).
The right to a jury trial is a fundamental right under both
ANALYSIS
Section 5 of the Kansas Constitution Bill of Rights
The district court‘s authority to order restitution in a criminal case is established by statute. Robison contends that these statutes violate
Robison claims
The parties agree that
Robison offers several arguments in an attempt to show that the criminal restitution statutes implicate the right to a jury trial under
We find Robison‘s comparison of criminal restitution to causation and civil damages in tort to be unavailing. In fact, the Kansas Supreme Court has found that “[r]estitution ordered in criminal proceedings and civil damages are separate and independent remedies under Kansas Law.” State v. Applegate, 266 Kan. 1072, 1078, 976 P.2d 936 (1999). Our Supreme Court recognized that “[t]he judge‘s order of restitution in a criminal action does not bar a victim from seeking damages in a separate civil action. Likewise, the judge... is not foreclosed from ordering restitution just because the victim has received compensation in a civil action.” 266 Kan. at 1079. Because criminal restitution is not a civil judgment, we do not find that
Robison also argues that he has a right to a jury trial under
Because criminal restitution is not a civil remedy and Robison has not even shown that restitution was available at common law, we find his arguments to be unpersuasive. Notably, Robison cites no provision in the Kansas territorial statutes that mention criminal restitution. Likewise, he does not cite any Kansas territorial cases referencing criminal restitution. As Rоbison candidly acknowledges, criminal restitution was not listed in the Kansas territorial statutes as a permissible remedy for any crime in 1859. Therefore, we conclude that Robison has failed to establish that
Sixth Amendment of the United States Constitution
Next, Robison contends that the Kansas restitution statutes violate his right to a jury trial under the
Both parties acknowledge that this court has previously addressed this issue in Huff. Likewise, we note that the Kansas Supreme Court has granted a petition for review in one of the cases from our court addressing this issue. State v. Arnett, No. 112,572, 2018 WL 2072804 (Kan. App. 2018) (unpublished opinion), rev. granted 308 Kan. 1596 (2018). We also note that in another case in which our court addressed this issue, the Kansas Supreme Court initially granted a petition for review but subsequently withdrew its order. State v. Patterson, No. 114,861, 2017 WL 3207149 (Kan. App. 2017) (unpublished opinion), mandate issued November 14, 2019.
As discussed above, there are two Kansas statutes that require district courts to order a defendant to pay restitution absent a finding of unworkability.
Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant‘s commission of the offense that сaused the injury or damage. See Black‘s Law Dictionary 1571 (11th ed. 2019) (Restitution is the “[r]eturn or restoration of some specific thing to its rightful owner or status; Compensation for loss, esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation.“). Although part of the criminal sentence, restitution benefits the criminal victims who actually suffered an injury or damage rather than the government. See State v. Heim, No. 111,665, 2015 WL 1514060, at *2 (Kan. App. 2015) (unpublished opinion) (“Restitution is intended to fairly compensate crime victims and to further the rehabilitation of defendants by instilling in them some sense of the costs their wrongdoing has inflicted.“).
“While it is undeniable that restitution is part of a defendant‘s sentence, it does not mean restitution is punishment.” Huff, 50 Kan. App. 2d at 1099; see also State v. Hall, 45 Kan. App. 2d 290, 298, 247 P.3d 1050 (2011) (restitution is not part of a defendant‘s punishment), aff‘d 297 Kan. 709, 304 P.3d 677 (2013). Nevertheless, even if it is assumed that restitution constitutes punishment, we find that Robison‘s Sixth Amendment argument fails. This is because neither
It is important to recognize that bоth statutes grant a district court the authority to order a lesser amount than the actual amount suffered if it “finds compelling circumstances which would render a plan of restitution unworkable.”
Accordingly, because the Kansas statutes do not include mandatory minimums or maximums, we find that neither Alleyne nor Apprendi applies to the award of criminal restitution. As a result, we conclude that Robison‘s Sixth Amendment right to a jury trial was not violated by the district court‘s imposition of restitution. Moreover, we note that our holding is consistent with the numerous federal and state courts that have considered the issue.
At least 11 of the 13 United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution. See United States v. George, 949 F.3d 1181, 1188 (9th Cir. 2020); United States v. Vega-Martinez, 949 F.3d 43, 54 (1st Cir. 2020); United States v. Churn, 800 F.3d 768, 780-83 (6th Cir. 2015); Burns, 800 F.3d at 1261-62; United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); Day, 700 F.3d at 732; Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006); United States v. Leahy, 438 F.3d 328, 335-38 (3d Cir. 2006); United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). In fаct, we can find no federal court that has held judicially ordered restitution violates Apprendi and its progeny.
Similarly, several state courts have joined this court in concluding that Apprendi and its progeny do not apply to restitution orders. See State v. Leon, 240 Ariz. 492, 495-96, 381 P.3d 286 (Ct. App. 2016); People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal. Rptr. 3d 861, 404 P.3d 1209 (2017); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007); Smith v. State, 990 N.E.2d 517, 520-22 (Ind. App. 2013); State v. Foumai, No. CAAP-17-0000093, 2018 WL 495679, at *4 (Haw. Ct. App. 2018) (unpublished opinion); Commonwealth v. Denehy, 466 Mass. 723, 736-38, 2 N.E.3d 161 (2014); People v. Corbin, 312 Mich. App. 352, 371-73, 880 N.W.2d 2 (2015); State v. Rey, 905 N.W.2d 490, 496-97 (Minn. 2018); State v. Clapper, 273 Neb. 750, 755-59, 732 N.W.2d 657 (2007); State v. Martinez, 392 N.J. Super. 307, 315-18, 920 A.2d 715 (2007); People v. Horne, 97 N.Y.2d 404, 414-15, 740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); State v. Deslaurier, 277 Or. App. 288, 295, 371 P.3d 505 (2016); State v. Kinneman, 155 Wash. 2d 272, 282, 119 P.3d 350 (2005).
We recognize that some legal scholars believe the United States Supreme Court intimated in its opinion in Southern Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), that it might extend the Sixth Amendment right to a jury trial on the issue of criminal restitution. We do not hold that belief. In Southern Union, the United States Supreme Court reviewed a state statute that imposed a maximum criminal fine for each day that the defendant was in violation. Under those circumstances, the Supreme Court found that a jury was needed to determine how many days the violation had occurred. 567 U.S. at 347-50. Of note, Southern Union explains that Apprendi prohibits “judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury‘s verdict or the defendant‘s admissions allow.” 567 U.S. at 352. Of course, as explained above, there is a substantial difference between criminal fines paid to the government and restitution paid to reimburse victims.
In Green, the United States Court of Appeals for the Ninth Circuit found:
“[I]t‘s not even clear that restitution‘s a form of punishment. We‘ve held in some contexts that ‘restitution under the MVRA is punishment.’ United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998); see United States v. Ballek, 170 F.3d 871, 876 (9th Cir. 1999). But in other contexts, we‘ve held it‘s not. See United States v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012) (‘[F]orfeiture and restitution serve entirely distinct purposes: “Congress conceived of forfeiture as punishment . . . . The purpose of restitution however, is not to punish the defendant, but to make the victim whole again.“’ (quoting United States v. Newman, 659 F.3d 1235, 1241 [9th Cir. 2011]); Gordon, 393 F.3d at 1052 n.6 (‘[T]he MVRA‘s purpose is to make the victims whole; conversely, the Sentencing Guidelines serve a punitive purpose.‘). Sometimes we‘ve held it‘s a hybrid, with ‘both compensatory and penal purposes.’ United States v. Rich, 603 F.3d 722, 729 (9th Cir. 2010). Even if Apprendi covers all forms of punishment, restitution‘s not ‘clearly’ punishment, so we can‘t rely on Southern Union to overrule our restitution precedents.” 722 F.3d at 1150.
The Ninth Circuit also found it significant in Green that the MVRA does not have a statutory maximum. Rather, restitution is “pegged to the amount of the victim‘s loss. A judge cannot exceed the non-existent statutory maximum for restitution no matter what facts he finds, so Apprendi‘s not implicated.” 722 F.3d at 1150. Likewise, as discussed above, the Kansas restitution scheme does not have either a statutory maximum or minimum. So, like their federal counterparts, a Kansas district judge cannot exceed a statutory maximum—or statutory minimum—that does not exist.
In Day, the United States Court of Appeals for the Fourth Circuit also rejected the defendant‘s claim that Southern Union compelled a finding that the Apprendi rule should be extended to orders of restitution. 700 F.3d at 731. In Day, the Fourth Circuit found:
“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 thе federal courts to date. That is, Southern Union
makes clear that Apprendi requires a jury determination regarding 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.
We find that the holding in Huff is consistent with federal and state court decisions from across the United States. Furthermore, for nearly six years, district courts and panels of this court have followed the holding in Huff. See Arnett, 2018 WL 2072804, at *2; Patterson, 2017 WL 3207149, at *8 (since restitution does not implicate Apprendi, the court found no reason to review the issue for the first time on appeal); State v. Bradwell, No. 115,153, 2016 WL 7178771, at *4 (Kan. App. 2016) (restitution is not punishment but is restorative in nature); State v. Pister, No. 113,752, 2016 WL 4736619, at *7 (Kan. App. 2016), rev. denied 306 Kan. 1328 (2017); and State v. Jones, No. 113,044, 2016 WL 852865, at *9 (Kan. App. 2016), rev. granted 307 Kan. 991 (2017). Huff has also been cited with approval by other jurisdictions. See Deslaurier, 277 Or. App. at 295 n.2 (Oregon Court of Appeals citing Huff in support of conclusion that the imposition of restitution is unlike the circumstances in Apprendi and Southern Union); Foumai, 2018 WL 495679, at *4 (Hawaii Court of Appeals citing Huff in concluding that Apprendi does not apply to an order of restitution).
Despite Robison‘s claim that
In summary, we find that the statutes governing restitution in Kansas impose neither mandatory minimum amounts nor mandatory maximum amounts. See
Award of Restitution to Insurance Carrier
Robison also contends that the district court erred in awarding restitution to an insurance company. He divides this argument into two parts. Initially, he argues that under
We exercise unlimited review over that legal question because it requires interpreting the restitution statutes. State v. Dexter, 276 Kan. 909, Syl. ¶ 2, 80 P.3d 1125 (2003). Robison acknowledges that the Kansas Supreme Court has held that a district court may award restitution to an insurance carrier. State v. Beechum, 251 Kan. 194, Syl. ¶ 3, 833 P.2d 988 (1992). Similarly, panels of this court have found that an “aggrieved party” under the restitution statutes includes an
Despite Robison‘s arguments to the contrary, we find that the rationale in Beechum and the other cases cited above applies equally to restitution ordered under
Nevertheless, Robison argues that even if insurance companies can receive restitution under
In addition, Robison argues that “while the State put on evidence of value—$2,648.56—it failed to put on any evidence that a loss of that value occurred.” Yet Robison does not suggest the insurance carrier‘s losses were less than the $2,648.56 the district court ordered. We also find nothing in the record to suggest that the insurance carrier received a windfall when the district court ordered that it be reimbursed for the amount it had paid to cover the officer‘s medical bills, and it is undisputed that these bills resulted from the treatment the officer received after being injured by Robison. Thus, we find that the district court did not abuse its discretion in ordering Robison to pay $2,648.56 in restitution to the workers compensation insurance carrier.
Finally, Robison briefly argues that the insurance company had to make the claim before the district court could order it to be reimbursed for the amount of medical expenses paid on behalf of Corporal Cutright. Again, we exercise unlimited review over this legal question because it involves the interpretation of the restitution statutes. Dexter, 276 Kan. 909, Syl. ¶ 2. Moreover, we note that two panels of this court have rejected similar arguments because the restitution statutes do not require the person or entity incurring the damage or loss to request restitution. Instead, the State can make the request for the aggrieved party. See Jones, 2019 WL 2554115, at *2; State v. Jones, No. 106,750, 2012 WL 4121119, at *4 (Kan. App. 2012) (unpublished opinion). We are persuaded by the analysis in those opinions. Consequently, we conclude that Robison‘s argument fails for the same reason, and we find that the district court‘s restitution judgment should be affirmed.
Affirmed.
***
LEBEN, J., dissenting: We treasure and zealously protect our right to a jury trial. It‘s enshrined for both civil and criminal cases in our state and federal constitutions. Yet there‘s a big loophole in the protection of those rights—and that loophole is the restitution order in a criminal case.
These orders are often made in an almost perfunctory hearing after the defendant has, in all other respects, been fully sentenced. Prosecutors and defendants alike often focus on the big-picture issues: Should the defendant plead guilty? Can some charges be dismissed
But constitutional rights don‘t go away just because we‘re not paying attention to them. Courts and judges still have a duty to protect them; if a defendant is to waive a constitutional right, we must first tell the defendant about it.
In the case before us today, Robert James Robison III pleaded no contest to battery of a law enforcement officer. At sentencing, with no jury proceedings, a judge found that Robison‘s crime had caused $2,548.56 in damages to an insurance company and ordered that Robison pay restitution in that amount. Neither the doсument initially filed to charge Robison with the crime nor the plea agreement he and the prosecutor entered into mentioned those damages.
One could argue that there‘s not much at stake here, only a little over $2,500. But that‘s not relevant when a restitution award is entered as part of a criminal sentence (and many restitution awards are much larger). Robison says that the
The Sixth Amendment Claim
The
Robison for two reasons: (1) that restitution isn‘t punishment and (2) that the statutes don‘t increase the statutory maximum or statutory minimum sentence for Robison‘s crime. I will address those reasons in order, covering the applicable Sixth Amendment principles along the way.
The Sixth Amendment applies to restitution orders, so we must apply Apprendi.
The claim that restitution is nonpunitive—and thus not covered by the
Restitution is imposed after a criminal conviction and is part of the defendant‘s sentence. State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011). Its purposes include deterring future crime and rehabilitating the defendant. State v. Applegate, 266 Kan. 1072, Syl. ¶ 2, 976 P.2d 936 (1999). Those are punitive objectives; they are two of the rationales the government may use to justify a form of punishment under the Cruel and Unusual Punishment Clause of the
That conclusion is unaffected by the observation that restitution also provides compensation for crime victims. It‘s true that one
They exist no matter how creatively courts like ours describe restitution. The majority prefers to call restitution “a form of restorative justice,” slip op. at 11, a name used in only one other Kansas case to describe restitution. State v. Brown, No. 120,590, 2020 WL 1897361, at *9 (Kan. App. 2020) (unpublished opinion). Yet in the very same paragraph, the majority cites a dictionary dеfinition and a case that acknowledge restitution‘s criminal characteristics. However labelled, restitution‘s criminal characteristics make it a part of the defendant‘s criminal prosecution.
The nonpunishment view is even harder to defend when you consider the size of restitution awards and the consequences of not paying them. A search of federal cases returns decisions from every circuit upholding multi-million-dollar restitution awards. E.g., United States v. Bikundi, 926 F.3d 761, 790-92 (D.C. Cir. 2019) ($80.6 million); United States v. Moreland, 622 F.3d 1147, 1170-73 (9th Cir. 2010) ($36 million); United States v. Lewis, 557 F.3d 601, 615 (8th Cir. 2009) ($39 million). A similar search of Kansas cases produces awards in the hundreds of thousands of dollars. State v. McAnally, No. 119,133, 2019 WL 3367902 (Kan. App. 2019) (unpublished opinion) ($789,282); State v. Crowell, No. 116,841, 2018 WL 1352534 (Kan. App.) (unpublished opinion) ($202,552), rev. denied 308 Kan. 1597 (2018); State v. Huff, 50 Kan. App. 2d 1094, 1096, 1104, 336 P.3d 897 (2014) ($105,000).
Keep in mind that if any of the victims who received restitution in those cases had sued for civil damages, a jury-trial right would have kicked in. The defendants in that civil case could invoke their right to have a jury decide whether their actions caused damages, and if so, how much.
The lack of a jury-trial right in a criminal casе is even more anomalous when you realize that the consequences of not paying criminal restitution are more severe than not paying a civil judgment. For many felonies, the district court can indefinitely extend probation until restitution is fully paid.
So does history, the touchstone of any Apprendi analysis. That analysis is “informed by the historical role of the jury at common law.” Oregon v. Ice, 555 U.S. 160, 170, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). So we must consider “whether the finding of a particular fact was understood as within ‘the domain of the jury . . . by those who framed the Bill of Rights.‘” 555 U.S. at 168.
Most judges and lawyers are not historians by training; I‘m in that group. So there‘s always a risk that we‘ll misread history in some way. Here, though, the historical role of juries in finding restitution seems pretty well established. The earliest examples of restitution in England required jury findings. In a victim-initiated prosecution called an appeal of felony, a larceny victim could retake stolen property by identifying it in the complaint and having the jury determine who owned it. Note, Guarding the Rights of the
It also conflicts with precedent. In Southern Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), the United States Supreme Court applied Apprendi to criminal fines. It did so because criminal fines are no different from other punishments subject to the
”Apprendi‘s ‘core concern’ is to reserve to the jury ‘the determination оf facts that warrant punishment for a specific statutory offense.’ That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. . . . In stating Apprendi‘s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal ‘sentence[s],’ ‘penalties,’ or ‘punishment[s]‘—terms that each undeniably embrace fines. [Citations omitted.]” 567 U.S. at 349-50.
In short, the Apprendi rule applied to criminal fines because they were indistinguishable from other punishments subject to the rule.
So too with restitution. Like a criminal fine, restitution is a penalty inflicted by the government for committing an offense. There is no meaningful difference between fines and restitution that would justify the
The Paroline Court rejected an interpretation of a federal restitution statute that, among other things, potentially violated the
To recap, the text of the
First, the cases reject Apprendi-based restitution claims for different reasons, and those reasons aren‘t very consistеnt. Some do so because restitution isn‘t punishment at all. Others do so because it doesn‘t increase the statutory maximum or minimum. Still others rely on both rationales. And while courts uniformly hold that restitution statutes don‘t violate Apprendi, they are split on whether restitution is punishment—a pretty important matter in deciding whether the
Take the Third and Sixth Circuits. Both agree that restitution is a form of punishment. United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) (en banc); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). So do three states the majority mentions. People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal. Rptr. 3d 861, 404 P.3d 1209 (2017); State v. Clapper, 273 Neb. 750, 757, 732 N.W.2d 657 (2007); State v. Kinneman, 155 Wash. 2d 272, 277-81, 119 P.3d 350 (2005). In three others, the courts made no comment on whether restitution is punishment. State v. Deslaurier, 277 Or. App. 288, 295, 371 P.3d 505 (2016); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007); State v. Foumai, No. CAAP-17-0000093, 2018 WL 495679, at *4 (Haw. Ct. App. 2018) (unpublished opinion).
Then there are the courts that treat restitution as punishment in non-Apprendi contexts. Three federal circuits do that, describing restitution as “part of a criminal penalty,” United States v. Tull-Abreu, 921 F.3d 294, 305 (1st Cir.), cert. denied 140 S. Ct. 424 (2019); having “compensatory and penal” goals, United States v. Ritchie, 858 F.3d 201, 214 (4th Cir. 2017); and “penal, rather than compensatory,” United States v. Puentes, 803 F.3d 597, 609 (11th Cir. 2015). At least two states, in cases not cited by the majority, similarly subscribe to the punitive view of restitution when no Apprendi issues are being argued. State v. Kealoha, 142 Haw. 46, 50, 414 P.3d 98 (2018); In re Cody H., 452 Md. 169, 183, 156 A.3d 823 (2017).
Second, many of the cases are outdated in light of later caselaw developments. Nine of them were decided six or more years before the Court‘s Southern Union opinion. Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006); Leahy, 438 F.3d 328; United States v. Carruth, 418 F.3d 900 (8th Cir. 2005); United States v. George, 403 F.3d 470 (7th Cir. 2005); Smith, 181 P.3d at 327; Clapper, 273 Neb. at 757; State v. Martinez, 392 N.J. Super. 307, 315-18, 920 A.2d 715 (2007); People v. Horne, 97 N.Y.2d 404, 414-15, 740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); Kinneman, 155 Wash. 2d at 277-81. So they don‘t account for the closely analogous application of the Apprendi rule to criminal fines in Southern Union. Third, even the newer cases that do address Southern Union make little effort to distinguish it—or to explain why restitution isn‘t punishment. Like the rest, they mostly cite to other cases in which their court or another had already classified restitution as nonpunitive.
Rather than follow their lead, we should analyze the issue anew and recognize that restitution is part of the “criminal prosecution.” Courts award it in a criminal proceeding as part of a criminal sentence. Imposing it serves punitive aims and not paying it has punitive consequences. For those reasons, the
The Kansas restitution scheme violates the Apprendi rule.
Now we must figure out whether the Kansas restitution statutes violate the Apprendi rule. The majority says they don‘t because these statutes increase neither the statutory maximum nor statutory minimum sentence. Although I agree that the statutes don‘t increase the statutory minimum, I would hold that they increase the statutory maximum.
The meaning of that phrase is clear from the United States Supreme Court‘s Apprendi cases. In Blakely v. Washington, the Court provided a simple definition of the term that‘s worth repeating here:
“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings. When a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment[.] . . .’ [Citations omitted.]” Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
So the statutory maximum is the most punishment that a judge could impose without more findings. The Court continues to apply that definition in its Apprendi cases. Southern Union, 567 U.S. at 348.
Under Blakely, then, the Kansas restitution scheme increases the statutory maximum. Unless the jury found that the defendant‘s
Consider Robison‘s case. The indictment didn‘t allege that his crime caused any damage or loss to the insurance company. Nor did the plea agreement. So when the judge made a damages finding at sentenсing, he ordered more restitution than was authorized by the plea agreement alone.
The majority counters that there is no statutory maximum for restitution (so our statutes couldn‘t impermissibly increase the maximum). Slip op. at 14-15. The argument goes like this: the maximum value of awardable restitution is indeterminate because it will vary from case to case based on the damage or loss caused by a crime; so unlike criminal fines with fixed dollar amounts, there is no statutory maximum for restitution. But Southern Union forecloses this argument.
Recall that Southern Union extended Apprendi to criminal fines. The statutorily authorized fine in that case was up to $50,000 for each day a company had violated a federal environmental statute. The judge-found fact that impermissibly increased the statutory maximum in Southern Union was the length of the violation. Yet the Court made clear that its holding would apply to any fact used to calculate a fine, including “the amount of the defendant‘s gain or the victim‘s loss.” 567 U.S. at 349-50. Whatever fact is used, juries must “[i]n all such cases, . . . find beyond a reasonable doubt facts that determine the fine‘s maximum amount.” 567 U.S. at 350.
By the majority‘s logic, Southern Union was wrongly decided. The maximum fine in thаt case was not a fixed number. The fine was up to $50,000 for each day that the company had violated the environmental statute. The $50,000 number is not the statutory maximum; it‘s a variable the court multiplies by the length of the violation. Just as two crimes may not cause the same amount of damage or loss, two companies may not violate an environmental statute for the same number of days. So the statutory maximum for the fine is indeterminate. If there is no statutory maximum for indeterminate penalties, as the majority suggests, then Southern Union should have come out the other way. It didn‘t, of course, because no part of the Court‘s decision imposed the fixed-amount requirement read into the decision by the majority here.
The majority‘s reasoning would also mean that fines calculated using the amount of the defendant‘s gain or the victim‘s loss would be exempt from the Apprendi rule. Remember that Southern Union said that the rule applies to those fines. 567 U.S. at 349-50. But like a damage-or-loss figure for restitution, those fines have no constant maximum because the amount gained by the defendant or lost by the victim from the crime is variable. And if variable penalties have no statutory maximum, then under the majority‘s reasoning, the Apprendi rule shouldn‘t apply to those fines. Yet we know that‘s not right because Southern Union specifically identified those fines as an example of the kind of penalty to which the Court‘s holding applied. 567 U.S. at 349-50.
And if Apprendi applies to a fine that‘s calculated based on the victim‘s loss, it should apply to restitution calculated on that same basis. In both cases, a judge-found fact increases the punishment the judge could impose beyond the amount authorized by the jury verdict or the plea agreement alone. It doesn‘t matter that the specific dollar amount of restitution will differ from case to case because the fact that‘s used to calculate that amount will always be the same: the amount of damage or loss found to have been caused by the defendant‘s crime.
The majority recognizes that “some legal scholars believe,” based on Southern Union, that the
Before moving to Robison‘s Section 5 claim, one last point is worth mentioning. The majority notes that under our state‘s restitution statutes, a judge may award less than the amount of “damage or loss” caused by the defendant‘s crime. Slip op. at 11-12, 16. That‘s because a judge can reduce the restitution award from the total loss if “the court finds compelling circumstances which would render a plan of restitution unworkable.”
I agree with that interpretation, but it in no way affects my conclusion about the statutory maximum. If the judge awards any restitution, the statutory maximum has still increased from zero to more than zero. The only way the compelling-circumstances language could cure the Apprendi violation would be if the judge found that compelling circumstances justified awarding no restitution. Only then would the statutory maximum stay at zero. And the maximum didn‘t stay at zero in Robison‘s case; the court didn‘t apply that exception and instead ordered Robison to pay the full damage-or-loss value.
In sum, the two Kansas statutory provisions dealing with restitution—
I would not apply the harmless-error rule because the State doesn‘t raise it. And even if it had, the error could not have been harmless here because no Kansas law currently provides a procedure for empaneling a jury to decide restitution. See Washington v. Recuenco, 548 U.S. 212, 217-18, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010); State v. Kessler, 276 Kan. 202, Syl. ¶ 8, 73 P.3d 761 (2003).
The Section 5 Claim
Robison‘s jury-trial right can come either from the federal constitution or its Kansas counterpart. Even if Robison had no jury-trial right under the
No one disputes that if Robison had a jury-trial right under
For the majority, restitution is something of a Goldilocks remedy—not too punitive to trigger the
On the
In theory, perhaps some monetary award could be just right, neither fish nor fowl, and avoid scrutiny under both the
Similarly, if we focus on the punishment side instead of compensation for loss, there‘s more to
In 1859, juries in criminal cases involving theft offenses had to make a factual finding about the value of the stolen property.
The property-valuation finding for theft offenses is equivalent to the damage-or-loss finding for restitution. As the majority рuts it, the valuation “affected the severity level of the offense.” Slip op. at 8. Juries had to determine how much the property was worth because that finding “affected the appropriate sentence to be imposed on the defendant.” Slip op. at 9. So too with a damage-or-loss finding for restitution. That finding affects the severity of the defendant‘s sentence. If the crime caused no damage or loss, the judge cannot award any restitution; otherwise, the judge can award up to the full damage-or-loss amount. Because juries would have made the damage-or-loss finding in 1859, I would
The majority concludes otherwise because Robison has not shown that juries decided restitution in 1859. That asks the wrong question. The key question isn‘t whether judges awarded restitution in Kansas in 1859, but whether juries would have found the facts needed to support a restitution award at that time. Juries, not judges, in 1859 would have decided whether the defendant‘s crime caused damage or loss to a victim. On that basis, I would hold that Robison had a right to a jury trial under
In sum, Robison had a right to have a jury determine the amount of the damage or loss he caused to any victim of his crime. That right was not honored. I would vacate the restitution award.