Opinion
No. 107,886.
2013-05-10
STATE of Kansas, Appellee, v. Michael J. JANZEN, Appellant.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael J. Janzen appeals the fine imposed by the district court at his resentencing hearing. We have reviewed the record before us and find no abuse of discretion by the district court in the imposition of this fine. We affirm.
Facts
Janzen pled guilty to second-degree murder. He was sentenced to 123 months in prison and a $100,000 fine. Janzen filed a motion for the court to reconsider the fine, as he had never made more than $35,000 in a year and he would also be paying child support. The district court considered Janzen's motion at a postsentencing hearing and reduced the fine to $60,000.
Janzen appealed the fine and his term of imprisonment. Another panel of this court vacated the reduced fine, holding the district court did not have jurisdiction to reconsider the fine after the sentence had been imposed, and the factual findings of the court regarding Janzen's fine were nullified. Janzen's case was remanded to district court with instructions to hold a new sentencing hearing in compliance with K.S.A. 21–4607.
On remand, the district court reviewed all aspects of Janzen's sentencing. Janzen testified on his own behalf for mitigation of punishment. He claimed his time in prison would reduce his ability to earn income as a home remodeler. He also testified that as a registered offender it would be hard to find work. Janzen argued against a fine, claiming it would have no deterrent effect above the prison sentence imposed. Finally, he argued a fine would affect his ability to make child support payments.
The district court considered K.S.A. 21–4607 when determining Janzen's sentence. The court reasoned Janzen would still be a young man upon his release; therefore, it wanted to impose some sort of “a daily, a weekly, a monthly financial consequence” to deter Janzen from being reckless around children in the future.
In considering the amount of the fine to impose, the district court considered Janzen's financial resources and the nature of the burden of the fine under K.S.A. 21–4607(3). The district court expressed little sympathy for Janzen's financial burden as compared to the loss of a child. Based upon Janzen's education and training, the court imposed a sentence with a criminal history of “I” for 123 months of imprisonment and a fine of $60,000. The fine was imposed to deter Janzen from behaving “in a way that puts children in danger because it is this court's obligation to create as much deterrent as possible so that we're not here to again [sic] for the loss of a another child.”
Janzen appeals.
Standard of Review
A criminal sentence that is within statutory limits will not be disturbed on appeal absent a showing of abuse of discretion or vindictiveness on the part of the sentencing court. State v. Cooper, 275 Kan. 823, 827, 69 P.3d 559 (2003) (citing State v. Rice, 227 Kan. 416, 424, 607 P.2d 489 [1980] ).
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
K.S.A. 21–4607 limits a court's authority to impose a fine in addition to imprisonment. The court cannot automatically impose imprisonment and a fine. To impose a fine in addition to imprisonment, a court must find that the defendant either profited from the crime or that the fine is adapted to deterrence or to correction. The court must also take into consideration the defendant's financial resources and the nature of the burden the payment of the fine will impose. State v. McGlothlin, 242 Kan. 437, 440, 747 P.2d 1335 (1988)
Janzen's case had been remanded for a deficient record when his first fine was imposed. The district court was very thorough in its discussion of K.SA. 21–4607 during Janzen's current sentencing. The court imposed a fine as a long-term consequence to help deter Janzen from being reckless around children in the future. In determining the amount of the fine, the court considered Janzen's education, age, child support requirements, and ability to earn.
The district court complied with the statutory requirements in setting the fine. To be successful in this appeal, Janzen must demonstrate the fine was either vindictive or an abuse of the district court's discretion. See Cooper, 275 Kan. at 828. Janzen's sentence was not enhanced on remand; therefore, there is no presumption of vindictiveness. See Cooper, 275 Kan. at 828. Where there is no presumption, the defendant must affirmatively prove actual vindictiveness. Cooper, 275 Kan. at 829. Janzen has presented no argument the district court was vindictive. Accordingly, he now must demonstrate abuse of discretion.
Janzen claims the district court abused its discretion because the fine would have no deterrent effect, as Janzen's crime was unintentional. Janzen cites State v. Whorton, 292 Kan. 472, 475, 254 P.3d 1268 (2011), to argue the court abused its discretion by failing to consider his financial burdens and ability to earn. Whorton is not controlling here as the court did consider Janzen's ability to pay and his financial burdens. The court found within its discretion that a fine was appropriate and chose not to follow Janzen's argument.
We find the instruction from State v. McNett, 15 Kan.App.2d 291, 294–95, 807 P.2d 171 (1991), more persuasive. In McNett, the court ruled a $30,000 fine was an abuse of discretion because the defendant would be “a middle-aged ex-convict with a GED, who has been self-employed most of his adult life.” 15 Kan.App.2d at 294. The defendant's salvage business had been foreclosed upon, and there was no evidence in the record the defendant would ever be financially able to pay $30,000. Based on a lack of evidence in the record to demonstrate McNett's ability to pay the fine, the appellate court held that no reasonable person would impose a fine of $30,000. Therefore, the district court had abused its discretion, and the fine was vacated and remanded for further assessment. McNett, 15 Kan.App.2d at 294–95.
Janzen's situation is much different. Although, like McNett, Janzen has no current ability to pay, his better education and training make it likely he will be able to make substantial earnings upon his release. While the fine assessed is significant, it is not unreasonable when Janzen's age upon release and future ability to earn are considered. Furthermore, the district court did consider the facts on the record and was transparent in its reasoning. Because a reasonable person could agree with the district court's decision, the district court did not err with the fine imposed on Janzen.
We cannot say a reasonable person could disagree with the fine imposed. We find no abuse of discretion or vindictiveness by the district court and affirm.
Affirmed.