Opinion
No. 110,910.
2014-10-31
STATE of Kansas, Appellee, v. Trenten E. WAGES, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The district court denied Trenten E. Wages' motion to withdraw his guilty plea to the charge of aggravated burglary. He contends the district court abused its discretion by applying an incorrect legal standard in denying his motion. He also claims the district court lacked jurisdiction to order restitution as a part of his sentence.
The parties are well acquainted with the procedural history of this case and the testimony at the hearing on Wages' motion. We need not recount them here. Wages pled guilty to the aggravated burglary charge in exchange for the State agreeing to recommend a downward durational departure sentence of 80 months and allowing Wages to argue for probation. Before sentencing, Wages moved to withdraw his guilty plea. Following an evidentiary hearing the district court denied the motion. Consistent with the plea agreement, the district court granted a downward departure sentence from the presumptive range of 122 to 136 months to 80 months' imprisonment. The court concluded sentencing with a short discussion of restitution:
“THE COURT: Mr. Elofsson, anything else?
“[THE STATE]: Yes, Your Honor. The matter of restitution. It was disclosed to me, and I informed counsel, the damages incurred during the burglary are estimated at $900.
“[DEFENSE COUNSEL]: If they will submit the documentation—I am not doubting that—along with the journal entry, I'll approve that.
“THE COURT: All right. That will be the order of the Court.”
The journal entry memorializing Wages' sentence included an order of restitution in the amount of $888.78. The journal entry contained a comment in the “Miscellaneous Provisions” section indicating that the supporting documents for restitution had been provided to defense counsel. Neither Wages nor his counsel signed the journal entry. Wages appeals. Motion to Withdraw Plea
Wages argues that the district court applied an incorrect legal standard in denying the motion to withdraw his plea when the court “implied that it would always deny a defendant's motion to withdraw plea, so long as a transcript conveyed that a district judge complied with K.S.A. 22–3210 during a defendant's plea hearing.” K.S.A.2013 Supp. 22–3210(a) contains the steps the court must follow before accepting a plea of guilty or nolo contendere. Wages claims that by making such an “automatic” ruling, the court failed to exercise its discretion in accordance with K.S.A.2013 Supp. 22–3210(d)(1).
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A.2013 Supp. 22–3210(d)(1). Wages has the burden of showing an abuse of discretion. We have unlimited review over whether “the district court's discretionary determination was guided by erroneous legal conclusions.” State v.. Garcia, 295 Kan. 53, 61, 283 P.3d 165 (2013).
In determining whether a defendant has shown good cause to withdraw a plea, the district court should consider whether: (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. Plotner, 290 Kan. 774, 778, 235 P.3d 417 (2010); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). The district court also may consider other factors when determining whether good cause is shown. State v. Ebaben, 294 Kan. 807, 812, 281 P.3d 129 (2012).
In discussing the evidence as part of his ruling, the district judge noted the conflicts in the testimony and resolved them based on the testimony of Wages' trial counsel. He found that counsel was prepared to go to trial, contrary to Wages' testimony. He expressly recognized the requirements of K.S.A.2013 Supp. 22–3210(a) and (b) that the district court had to follow in accepting Wages' plea. The judge noted the applicable good cause standard to be applied to Wages' motion. He also noted the Edgar factors to be considered in ruling on the motion. He reviewed Wages' statements at the plea hearing, including Wages' expressed satisfaction with his counsel.
Although the district judge noted the significance of Wages' statements during the plea colloquy, he did not express that he would automatically deny a motion to withdraw a plea in every case in which the district court complied with the requirements of K.S.A, 2013 Supp. 22–3210. To the contrary, in his ruling the district judge carefully reviewed the testimony presented at the evidentiary hearing and made credibility findings regarding that testimony.
Wages' reliance on Garcia, 295 Kan. 53, Syl. ¶ 5, is misplaced. There, the matter was remanded for reconsideration when it appeared that the district judge denied Garcia's motion to withdraw his plea based on the proposition that Garcia had to assert his actual innocence to his crimes of conviction. 295 Kan. at 63–64. Unlike in Garcia, the district judge here relied on the appropriate legal standards in his ruling.
Likewise, State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991), does not support Wages' position. In Fisher, the district judge denied probation, expressly stating that he does not grant probation on convictions of cocaine offenses. Thus, the district judge ruled based on a blanket policy rather than exercising his discretion in considering the defendant's probation request. In our case, the district judge made no such blanket policy statement but made specific findings based on the evidence presented on the motion.
Based on the foregoing, we are not persuaded by Wages' arguments on this point. Restitution
Wages argues that the district court did not have jurisdiction to impose restitution by merely “noting a restitution order on Mr. Wages' journal entry of judgment.” Wages also complains that the court violated his right to be present at a critical stage of the proceedings when it imposed restitution in the journal entry.
Statutory interpretation and the determination of jurisdiction involve questions of law over which we have unlimited review. State v. Hall, 298 Kan. 978, 982–83, 319 P.3d 506 (2014).
In Hall, State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014), and State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014), our Supreme Court provided guidance on determining whether a district court has jurisdiction to order restitution. Restitution is a part of a defendant's sentence and must be announced from the bench. If a district court does not impose an amount of restitution at a sentencing hearing, it loses jurisdiction to do so at a later date. Charles, 298 Kan. at 1003.
Hall was the first of the three opinions, all of which were issued on the same day, considering a district court's jurisdiction to decide restitution after the sentencing hearing. In Hall, the district court ordered restitution to remain open for 30 days after the sentencing hearing and told the defendant he had 10 days to file an appeal. At a later hearing, conducted after the defendant had filed an appeal of his conviction and sentence, the district court ordered him to pay more than $32,000 in restitution. The defendant appealed the restitution order, in part, because he argued the district court lacked subject matter jurisdiction to impose restitution after his sentencing hearing.
The Kansas Supreme Court characterized the sequence of events in the district court as a sentencing hearing followed by what was understood by the parties to be a restitution hearing. All parties had agreed that the sole issue at the second hearing was the amount of restitution the defendant would have to pay. The district court did not specifically indicate that the second hearing was a continuation or bifurcation of the sentencing hearing. Following an analysis of prior caselaw addressing similar issues, our Supreme Court stated:
“We now hold that, because restitution constitutes a part of a defendant's sentence, its amount can only be set by a sentencing judge with the defendant present in open court. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.
“This is not to say that a sentencing hearing can never be continued or bifurcated so that parts of a sentence are handed down one day and other parts another. Restitution may be ordered on one date and the amount set on another. Subject matter jurisdiction persists. We recognize that establishing the proper amount of restitution can take some time. Documentation may be difficult to obtain from nonparties ... or treatment for a victim may involve ongoing expenses. A sentencing judge must balance these realities against a defendant's legitimate due process interest in speedy adjudication and a timely opportunity to appeal his or her conviction and sentence. See K.S.A. 22–3424(c) ( ‘judgment shall be rendered and sentence pronounced without unreasonable delay’). Should the State or the district judge postpone completion of sentencing too long, a defendant may move to expedite or seek a writ of mandamus. Extreme cases may warrant sanctions to be imposed.” Hall, 298 Kan. at 986–87.
After noting that “there generally have been no magic words for a district judge to recite to effect a continuance of a sentencing hearing for setting a restitution amount,” the court stated: “In the future, the expected practice for a sentencing judge will be an explicit and specific order of continuance for the purpose of determining the amount of restitution or whatever other aspect of sentencing remains incomplete.” 298 Kan. at 987.
Hall was followed by Charles, wherein the district court stated at sentencing that restitution “ ‘as contained within the presentence report will be ordered.’ “ Charles, 298 Kan. at 995. The presentence report set out specific restitution for some of the victims but stated that restitution for another victim was “ ‘to be determined.’ “ 298 Kan. at 995. The defendant filed his notice of appeal the day after his sentencing hearing. Thereafter, the district court issued an order requiring the defendant to pay restitution in the amount of $1,192.69 to the remaining victim. The Supreme Court noted that the district judge did nothing to indicate that the judge realized the presentence report had not determined specific restitution for this victim, and he said nothing to preserve jurisdiction, hold the sentencing open, or continue the matter to another date. On appeal, the defendant argued that the district court lacked subject matter jurisdiction to set the amount of restitution for the remaining victim through an order filed after the defendant's sentencing hearing.
The Kansas Supreme Court determined that its opinions in Hall and Frierson controlled and those decisions compelled the court to vacate the restitution order as to that remaining victim. The court felt that under the facts of this case, the defendant's sentencing was complete at the conclusion of his sentencing hearing despite the fact that the presentence report failed to specify restitution for one of the victims. The district judge's failure to continue the hearing stripped the district court of jurisdiction. Further, restitution should have been finalized in open court with the defendant present unless the defendant waived his right to be present, in which case the judge could have finalized the restitution by written order.
In Frierson, the district judge ordered the defendant to pay $950 in restitution to the victim at the sentencing hearing, but there were some additional dental bills that needed to be addressed. By agreement of the parties, the judge held jurisdiction on the restitution issue open for 30 days so that the State could determine what percentage of those bills was attributable to the defendant and what percentage was attributable to the victim's preexisting dental disease. The judge notified the defendant that he had 10 days to file an appeal, and the defendant filed his appeal on his conviction and sentence the following day.
Approximately 1 month later, the district judge filed a restitution order requiring the defendant to pay restitution in the amount of $1,262 without holding a later hearing on the restitution issue in the presence of the defendant or his counsel. Nonetheless, defense counsel signed the order, which was silent about the defendant waiving his right to be present at sentencing. On appeal, the defendant argued that the district court lacked subject matter jurisdiction to increase the amount of restitution in the second order, filed nearly a month after sentencing.
The Kansas Supreme Court determined that the procedure used in Frierson satisfied “the spirit, if not the letter, of the procedure we set out for future cases in Hall ” because at the end of the sentencing hearing all involved knew sentencing had not been completed, the judge explicitly held jurisdiction open, the parties agreed to the 30–day extension, and the restitution order issued thereafter was signed by defense counsel and entered within the 30–day extension. Frierson, 298 Kan. at 1021. The defendant had been present at sentencing and made no argument on appeal that his right to be present at all critical stages of the trial had been violated, so the court determined that issue had been waived and abandoned.
Here, at the sentencing hearing the State indicated the damages incurred for purposes of restitution were approximately $900. Wages' counsel expressed that restitution in that amount would be appropriate if the State provided documentation. The court said, “That will be the order of the Court.” The “that” the court was referring to was restitution of approximately $900 based on the State providing defense counsel with documentation of the amount. Thereafter, the State did so, and the court journalized the restitution order in the more precise amount of $888.78—$11.22 less than the amount stated at the sentencing hearing.
Wages does not contend the amount of restitution was in error. He does not contend his counsel was not provided documentation of the amount. He does not contend the documentation provided did not support the amount memorialized in the journal entry.
At sentencing, the court ordered restitution of approximately $900 subject to the State providing defense counsel with supporting documentation. Defense counsel acquiesced to the amount of restitution as long as the documentation was submitted to support it. The district court did not lose jurisdiction to thereafter memorialize the amount in the journal entry—an amount slightly less than the amount agreed to in open court at the sentencing hearing.
Based upon the foregoing, we are not persuaded by Wages' final claim: that the court violated his right to have sentence pronounced in open court in his presence. An order of restitution can only be set by a sentencing judge with the defendant present in open court. Hall, 298 Kan. at 986. But we conclude the district court ordered restitution at the sentencing hearing with the defendant present and later memorialized it in the journal entry in an amount consistent—albeit $11.12 less—with the $900 discussed at the sentencing hearing and in Wages' presence.
Affirmed.