Opinion
No. 108,003.
2013-05-24
STATE of Kansas, Appellee, v. Mickey W. BUNCE, Appellant.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Angela Trimble, of Pittsburg, for appellee.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Angela Trimble, of Pittsburg, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Micky Bunce appeals from a judgment of the trial court ordering restitution. On appeal, Bunce argues that the trial court abused its discretion by ordering restitution when the amount was not based on reliable evidence. Because the record does not contain reliable evidence to support the amount of restitution ordered in this case, we reverse the restitution order and remand to the trial court to reconsider its order of restitution.
On December 7, 2010, Bunce was charged with residential burglary, theft, criminal damage to property, and criminal trespass in Cherokee County. On October 17, 2011, the State amended its complaint to charge Bunce with nonresidential burglary in violation of K.S.A. 21–3715(b), the other charges were dismissed. That same day, Bunce signed a plea agreement and pled no contest to the nonresidential burglary charge. Bunce's plea agreement did not set out a restitution amount. Instead, Bunce's plea agreement stated that “it is my understanding that the Court will retain jurisdiction over issues regarding restitution and conduct a restitution hearing at a future date if necessary.”
Bunce's restitution hearing was held on January 4, 2012. At the restitution hearing, the State relied on a property loss information sheet that was prepared by the victims. Based on the property loss information sheet, the State requested restitution in the amount of $5,355. Bunce's counsel disputed the amount, arguing that it was impossible for Bunce to have stolen $5,355 worth of property from the victim's storage unit because he had been caught at the scene of the crime. Thus, Bunce's counsel requested restitution in the amount of $300, which represented the damage to the building that was referred to in the probable cause affidavit. The trial judge did not find defense counsel's argument persuasive and he ordered Bunce to pay the restitution requested by the State, a total of $5,355. Did the trial court err when it ordered Bunce to pay restitution because the amount was not based on reliable evidence?
Bunce's sole argument on appeal is that the trial court abused its discretion when it ordered him to pay $5,355 in restitution. Specifically, Bunce contends that “[t]he district court erred in ordering him to pay $5,355.00 when the State failed to prove that he had stolen the items or had cooperated with Heath Matter to take other items.” The State disagrees and argues that “[t]he victims provided the appropriate documentation for the Court to find a restitution amount and that it was causally connected to the crime committed.” “The amount of restitution and manner in which it is made to the aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. [Citation omitted.]” State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002).
Recognizing that a trial court's determination of restitution must be based on reliable evidence yielding a defensible restitution amount, our Supreme Court has stated the following:
“Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure. A victim of a property crime is entitled to restitution only up to the amount of his or her loss.” Hunziker, 274 Kan. 655, Syl. ¶ 3, 56 P.3d 202 (2002).
Here, the trial court's determination of restitution was not based on reliable evidence yielding a defensible restitution amount. The only evidence presented by the State at the restitution hearing about the amount of property taken from the victims consisted of a property loss information sheet and an in-court statement made by one of the victims. The property loss information sheet was not entered into evidence and is not included in the record on appeal. Counsel for the State, however, indicated that “I have done my math skills on the sheets that were provided to the court and [defense counsel]; that's $4,855.” As for the victim's statement, even the victim was unsure about what items had been stolen from the storage unit. The victim's statement reads as follows:
“There's just two sheets; they only got one sheet of notebook paper; I'm not for sure which one they got. But there's supposed to be $10,000 worth of stuff, and I believe they found only $5,000 worth on the paper. So like I said, I'm not quite for sure which one they got so I can't say what was all stolen. And that's it.”
This evidence is insufficient to support the trial court's restitution. Indeed, it seems that the trial court's order of restitution was based on the prosecutor's representation of the amount owed. Statements of counsel, however, are not evidence. See State v. Reser, 244 Kan. 306, 316, 767 P.2d 1277 (1989); State v. Cole, 37 Kan.App.2d 633, 637, 155 P.3d 739 (2007). Moreover, it is undisputed that Bunce was caught on foot at the scene of the crime and that he did not have any of the victims' property on him when he was apprehended. Therefore, he would have been unable to steal the items listed by the victims and the State. To combat this, counsel for the State told the court that one of the victims “wanted the court to know [that Bunce] had said that Heath Matter had been involved also with the burglary and theft there and was apprehended apparently at a junk yard with some of the items too.”
But the problem with this statement is that it again constitutes a statement of counsel, which is not evidence. In addition, Heath Matter was not charged with this crime, and there is no evidence besides the State's comment that ties him to the crime. Ignoring this, the trial court imposed the restitution amount requested by the State while indicating that Bunce's responsibility to pay could change if anyone else was charged:
“The court finds that the restitution should be paid by the defendant to [the victims] in the amount of $5,355. In the event of charges against a co-defendant it would be joint and several with the co-defendant. There being none at this point it will be solely the responsibility of the defendant. If the other individual or individuals should be charged then that would be—that would make it joint and several at that point.”
There is no evidence in the record to support the trial court's determination of the amount of restitution. The trial court's entry of the order of restitution without evidence to support it constitutes an abuse of discretion. Accordingly, the trial court's order of restitution must be reversed and the case remanded for further proceedings on the issue of restitution.
Reversed and remanded to the trial court to reconsider its order.