Opinion
No. 111,655.
2015-02-13
STATE of Kansas, Appellee, v. Laura ECKHOFF, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Sam S. Kepfield, of Hutchinson, for appellant.Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Laura Eckhoff appeals the decisions of the trial court ordering her to pay restitution to her victims following her convictions for misdemeanor counts of theft and theft by deception. Finding no errors, we affirm.
Facts
In December 2012, Mary Thompson attended an event at a church in Hutchinson, Kansas. While at the event she left her jewelry—a ring, a necklace, four pairs of pearl earrings, and one pair of gold earrings—in a bag in her vehicle. When she returned to her car, the bag was missing. Thompson later located her ring at Sunset Pawn, where the pawnbroker told her that the person who sold him the ring for $500—later identified as defendant Laura Eckhoff—had been wearing a necklace that matched the ring. The pawnbroker said Eckhoff had asked whether the necklace was real. Eckhoff did not sell the necklace to the pawn shop but had indicated that she had just purchased it from someone through Craigslist.
Eckhoff was subsequently charged with felony theft of mislaid jewelry worth more than $1,000, making a false information, and theft of $500 by deception. Through negotiations with the prosecution, Eckhoff ultimately pled guilty to misdemeanor theft and theft by deception. The district court granted her probation from an underlying jail sentence and wrote in the journal entry of judgment that restitution was to be determined at a later date.
A restitution hearing was later held before the trial judge. At the hearing, Eckhoff objected to having to pay restitution for the earrings and the necklace. She denied ever having Thompson's necklace and earrings, telling the court that she had found Thompson's ring in the church parking lot and had shown the pawnbroker a necklace that she had recently purchased elsewhere. The district court nevertheless ordered Eckhoff to pay Thompson $509.31—the actual price she paid for the earrings and necklace. The judge also ordered her to pay Sunset Pawn $500, the amount it had paid her for the ring.
Eckhoff has filed this timely appeal from the court's restitution orders.
Analysis
On appeal, Eckhoff contends that the district court lacked jurisdiction to enter its restitution order after sentencing and argues that the State did not present substantial evidence that her conduct caused Thompson's damages for the necklace and earrings.
Eckhoff's first argument is that the court should have set restitution—which is part of the criminal sentence—at the time of sentencing. She asserts that the court did not have jurisdiction to order it later at the restitution hearing, citing State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014).
Eckhoff correctly notes that under our Supreme Court's 2014 trio of restitution decisions in Hall, 298 Kan. at 986–87; State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014), and State v. Frierson 298 Kan. 1005, 1020–22, 319 P.3d 515 (2014), district courts can maintain jurisdiction to order restitution after sentencing only when certain conditions are met: the trial judge must order restitution at sentencing and specifically order a continuance for the purpose of determining the actual amount of restitution. Those decisions were emphatic that these procedural rules would be strictly enforced by Kansas appellate courts in future rulings on restitution issues.
But the appellant fails to take note that these stricter rules announced in the Hall, Charles, and Frierson decisions were handed down after the restitution orders entered by the trial court in this case and were decreed as future practices to be expected by trial courts. In fact, the Hall court took note that there had been a plethora of cases using different language to set over restitution hearings to a later date and acknowledged that under prior appellate decisions, “[t]here 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.” Hall, 298 Kan. at 987. The high court lamented that under prior decisions, the bar for preserving restitution issues had become quite low: at sentencing the district court simply had to “do[ ] more than nothing” to hold jurisdiction open. Charles, 298 Kan. 1002; Hall, 298 Kan. at 987. The judge could have, for example, ordered restitution with the amount to be determined within 30 days, Charles, 298 Kan. at 1002–03, or entered an order to “ ‘leave that amount open’ for later hearing.”
In Charles, the trial judge had merely stated that restitution “as contained within the presentence report will be ordered,” but since no amounts for certain victims were listed, and no further orders were entered reserving the matter for further hearing, jurisdiction had not been maintained even under the lax standards in effect at the time. 298 Kan. at 1002–03; State v. Holeman, No. 104,094, 2014 WL 3843069, at *3–4 (Kan.App.2014) (unpublished opinion). As a result, to decide whether the district court in this case had jurisdiction to order restitution after sentencing, this court needs to determine whether the sentencing court ordered restitution and “[did] more than nothing” to adequately continue the sentencing hearing and maintain jurisdiction over restitution.
The official journal entry of sentencing in this case merely shows a hand-checked entry reading “Restitution $ TBD”, presumably standing for “to be determined.” Although this entry is minimalist, to say the least, it at least evinces an intent on the part of the trial court to reserve the matter of restitution for later hearing and determination. As such, it might be said to comply with the pre- Hall/Charles/Frierson standards. To nail down this issue firmly would require this court to examine what was said at the time of sentencing by the trial judge.
But there is a problem. The record on appeal does not contain a transcript of the sentencing hearing. Eckhoff has the burden of designating a record that affirmatively shows the district court made a prejudicial error. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). But Eckhoff notes that a transcript is not available and “sentencing was done by journal entry; no transcript was taken [sic].”
There should have been some record of Eckhoffs sentencing hearing because the district court is required to keep a record of its proceedings. K.S.A. 20–301. (“There shall be in each county a district court, which shall be a court of record”); In re Marriage of Case, 18 Kan.App.2d 457, 460–61, 856 P.2d 169 (1993). And even if the district court did not make a record, Eckhoff could have prepared a statement of the sentencing proceedings for this court to review under Supreme Court Rule 3.04.:
“If the transcript of a hearing ... is unavailable, a party to an appeal may prepare a statement of the ... proceedings from the best available means, including the party's own recollection for use instead of a transcript. The statement must be served on all parties ... [and] submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the clerk of the district court in the record on appeal.” Supreme Court Rule 3.04(a) (2014 Kan. Ct. R. Annot. 24).
Because Eckhoff has not provided a record or statement telling this court whether the district court ordered restitution and continued the sentencing hearing, it is impossible for this court to determine whether the district court erred in granting restitution, and Eckhoff has not met her burden of designating a record showing an error. See First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602–03, 647 P.2d 1268 (1982); State v. Mincey, 24 Kan.App.2d 418, 422–23, 945 P.2d 884 (1997), rev'd in part on other grounds 265 Kan. 257, 963 P.2d 403 (1998). Without the record, this court presumes the trial court's actions were proper. Bridges, 297 Kan. at 1001. Eckhoff's claim that the district court lacked jurisdiction to order restitution cannot be confirmed from the record and therefore fails.
Eckhoffs second contention on appeal is her argument that, even if the district court had jurisdiction to order restitution, it erred in ordering her to pay restitution for the earrings and necklace. She asserts that there was no causal link between Thompson's losses for the necklace and earrings and her unlawful conduct because she had not admitted to possessing the earrings and necklace and because the sentencing journal entry did not specify what items her theft conviction covered. She essentially argues that the district court ordered her to pay restitution for a crime she was not convicted of-theft of the earrings and necklace.
Under K.S.A.2014 Supp. 21–6604(b)(1), restitution is only appropriate for damages or loss caused by the defendant's crime:
“In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” (Emphasis added.)
As a result, Eckhoff is correct that restitution is dependent upon a causal link or nexus between her unlawful conduct and Thompson's damages. State v. Dexter, 276 Kan. 909, 912, 80 P.3d 1125 (2003). A district court cannot order restitution for crimes for which a defendant was not convicted unless the defendant agreed to pay for those losses pursuant to a plea bargain:
“[A] district court, when sentencing a defendant to probation, 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.” 276 Kan. at 919.
This court reviews the district court's factual finding of causation between the crime and the victim's loss for substantial evidence. Hall, 297 Kan. at 712. Substantial evidence is legal and relevant evidence that a reasonable person might accept as sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Here, Eckhoff was charged with theft of mislaid “jewelry.” At the restitution hearing, the State indicated Eckhoff also pled guilty to theft of “jewelry.” Assuming the State is correct, a guilty plea to theft of “jewelry” could arguably cover just the ring, or the ring, the earrings, and the necklace. Eckhoff has not offered a copy of the plea agreement, a transcript of her plea, or a statement of the plea proceeding. As a result, this court cannot evaluate the factual basis for her plea and cannot determine the specifics of her crimes of conviction. See K.S.A.2014 Supp. 22–3210(a)(4) (stating that the court must be satisfied that there is a factual basis before accepting a guilty plea). As stated above, Eckhoff has the burden of designating a record showing an error. Bridges, 297 Kan. at 1001. Without evidence of what specific items the guilty plea covered, this court cannot determine whether she was ordered to pay restitution for crimes for which she was not convicted.
To the contrary, there is circumstantial evidence contained in the record on appeal that Eckhoff's theft caused Thompson's damages for the earrings and the necklace. Thompson testified that she kept the ring—which Eckhoff admits she took—with her earrings and necklace in a bag and that the bag had gone missing. The pawnbroker also testified that he saw Eckhoff wearing a necklace that matched the ring Eckhoff sold to the pawn shop. Such circumstantial evidence is sufficient for proving a nexus between a crime and a victim's damages. See State v. Goeller, 276 Kan. 578, 583, 77 P .3d 1272 (2003). This court finds substantial evidence that Eckhoff had all of the jewelry from Thompson's bag and that her unlawful conduct caused Thompson's damages for the earrings and necklace.
Affirmed.