Opinion
No. 107,111.
2013-03-22
STATE of Kansas, Appellee, v. Farrell Dean CHANDLER, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Farrell Chandler challenges the restitution order the Shawnee County District Court entered after he pled no contest to felony theft because the order requires he pay $13,783—a loss that he never accepted in a plea agreement and that did not result from the crime of conviction. Based on the Kansas Supreme Court's decision in State v. Dexter, 276 Kan. 909, Syl. ¶ 3, 80 P.3d 1125 (2003), addressing this precise legal issue, his challenge is well taken. We, therefore, vacate that portion of the district court's restitution order and Chandler's sentence.
While Chandler and his wife were temporarily living in the Topeka home of his sister and her husband, he broke into a desk and stole a highly collectible Lincoln cent (commonly referred to as a penny by those other than numismatists) belonging to his brother-in-law. After taking the penny, he showed it to a local coin dealer who recognized it as one from the collection of James Abmyer, Chandler's brother-in-law. The dealer refused to return the penny to Chandler, contacted the Abmyers, and turned the coin over to them. As a collectible, the penny was worth more than $1,000, making its theft a felony. About the same time the penny disappeared from the desk, a file cabinet in the same room of the Abmyers' home was broken into and a coin collection worth $13,783 was stolen. Somewhere along the line, Chandler made incriminating statements to his sister and to a law enforcement officer indicating he had taken the penny.
In due course, the State charged Chandler with one count of felony theft for stealing the penny and one count of misdemeanor criminal damage to property for the filing cabinet. Chandler was never charged with stealing the coin collection missing from the filing cabinet. In a negotiated disposition of the charges, Chandler pled no contest to felony theft and the criminal damage charge was dismissed. Neither in the written plea agreement nor at the plea hearing did Chandler accept legal or financial responsibility for the missing coin collection. Chandler received a guideline sentence and, accordingly, was placed on probation.
Following an extended restitution proceeding in 2011, the district court ordered Chandler to pay $13,783 for the lost coin collection and $60 for the damage to the filing cabinet. Chandler has timely appealed and contends the restitution order to the extent it applies to coin collection is legally improper.
When a district court places a criminal defendant on probation, the court must order restitution for “the damage or loss caused by the defendant's crime.” K.S.A. 21–4610(d)(1). In Dexter, the Kansas Supreme Court construed a legally indistinguishable predecessor to the applicable restitution statute. The court held that “a district court ... may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by the defendant's crime.” Dexter, 276 Kan. at 919. The court similarly stated the rule in Syllabus 3. 276 Kan. 909, Syl. ¶ 3. The question before us is the proper construction and application of K.S.A. 21–4610(d)(l) to Chandler in light of the holding in Dexter. The issue is one of law over which an appellate court exercises plenary review without deference to the district court. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The defendant in Dexter was charged with seven counts of impairing a security interest related to his disposition of motor vehicles covered by liens. He pled guilty to one count and the remaining charges were dismissed. The district court imposed restitution based on the losses to the secured party in all seven counts. On appeal, the Kansas Supreme Court found the restitution order to be legally improper as to the six dismissed counts because, as we have indicated, the defendant was not convicted of them and had not agreed as part of a plea arrangement to assume financial responsibility related to them. Dexter, 276 Kan. at 919. The holding in Dexter comports with the plain language of the restitution statute confining restitution to losses caused by the defendant's crime. As a pronouncement of the Kansas Supreme Court, the rule in Dexter would be binding on us even if it did not.
Chandler's circumstance is legally and factually indistinguishable from Dexter. Chandler was convicted of one count of felony theft for stealing the penny, which was recovered. He was never even charged with taking the missing coin collection. And he never accepted financial responsibility for the coin collection as part of the plea agreement. The district court, therefore, was without legal authority to impose restitution on Chandler for the $13,783 it determined to be the fair value of the coin collection. That much of the restitution order is vacated. Chandler remains responsible for $60 in restitution for the damage to the filing cabinet, since he has not disputed that portion of the order on appeal, and his sentence otherwise remains intact.
Sentence affirmed in part and vacated in part.