Opinion
No. 103,586.
2015-02-19
STATE of Kansas, Appellee, v. James Norman EPPS, Jr., Appellant.
Appeal from Shawnee District Court; Jean M. Schmidt, Judge.Christina M. Kerls, 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; Jean M. Schmidt, Judge.
Christina M. Kerls, 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 McANANY, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following our opinion of August 26, 2011, in State v. Epps, No. 103,586, 2011 WL 3795246 (Kan.App.2011) (unpublished opinion), James Norman Epps., Jr., filed a petition for review which was granted on May 6, 2014.
Our Supreme Court summarily reversed this court's memorandum opinion and remanded the matter for consideration in light of its decisions in State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014); State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014); and State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014).
The only issue remaining on appeal after the remand is whether the district court had lost jurisdiction to impose restitution after it had already imposed a lawful sentence.
Following the Supreme Court's remand, we ordered each party to file and serve a written response setting forth how this court's initial memorandum opinion should be reconsidered in light of the holdings of Hall, Charles, and Frierson. The parties have done so, but before discussing those arguments, we will briefly set forth the facts in this case involving the restitution issue and then summarize the three opinions that have required us to reconsider Epps' appeal.
Based on the record submitted to us and the State's response to our show cause order, the factual background of the issue of restitution through the sentencing hearing, numerous continuances, some to locate Epps who had entered the correctional system, and a final restitution hearing where evidence was received and Epps was present, appears to be as follows:
Epps was sentenced on September 17, 2009. Because of two prior trials and the possibility of a third, the State had not received a final award detail from the Kansas Crime Victims Compensation Board and asked for additional time to receive its final report. The court said: “All right. I'll leave it open for 30 days.” This action is shown in the record on appeal.
The following information is presented to us, without objection by Epps, in the State's response to our order regarding restitution and reads as follows:
“4. On October 2, 2009, the State filed a ‘Motion for Hearing on Restitution’ and requested a hearing to determine the amount of restitution to be paid by Epps in this case. (R. V, 307–08).
“5. On November 20, 2009, a restitution hearing was held, but Epps was not transported over for the hearing. The district court continued the restitution hearing for March 24, 2010. Epps' defense counsel did not object to the continuance. (R. XL, 1–5.)
“6. On March 24, 2010, the State, Epps, and his defense counsel were present for the hearing. According to the judge's minutes it appears that the State requested a continuance and there was no objection by Epps. (R. I, 1–26.) The transcript of this proceeding is not included in the record on appeal.
“7. On June 9, 2010, the State and Epps' counsel were present for the hearing. According to the judge's minutes, the State requested a final continuance and Epps did not object. (R. I, 1–16.) The transcript of this proceeding is not included in the record on appeal.
“8. On August 19, 2010, the restitution hearing was held. According to the judge's minutes, the State presented evidence and Epps did not present any evidence. Epps was present in person and the hearing was held in open court. The district court ordered restitution in the amount of $2,865.38. The district court ordered $1,080.92 to the Crime Victims Review Board and $1,784.46 to the victim in the case. (R. I, 1–26.) The transcript of this proceeding is not included in the record on appeal.”
Epps' candid and timely response set forth the judge's minutes of the 8/19/10 hearing which are as follows:
“MISC. State by KEITH ANDERSON. DEFT. in person and with STEVEN ROSEL. Court Reporter: SARAH DAVISON. Hearing regarding amount of restitution. State presented evidence and rested. Deft, did not present evidence. Restitution is ordered in amount of $2,865 .38—$1,080.92 to C.V.R.B. and $1,784.46 to Charles Lowe. (K. Henderson to journalize). JMS”
Further, Epps' response to our order concluded in this manner:
“4. In all three cases cited above, ( Hall, Charles, and Frierson ) and in the Court of Appeals order, the Supreme Court found that sentencing and restitution could be ordered at two separate hearings. Hall, 319 P.3d at 512; Charles, 298 Kan. at 1003–04; Frierson, 310 P.3d at 528. The Hall Court found that after the date of that decision, February 28, 2014, a district court would be expected to make an explicit and specific order for a continuance for the purpose of determining the amount of restitution. Hall, 319 P.3d at 512. Mr. Epps acknowledges that the district court indicated that restitution would be left open for 30 days, which was sufficient to retain jurisdiction prior to February 28, 2014, according to Hall, Charles, and Frierson.”
Due to the multitude of the cases remanded to us following the Hall, Charles, and Frierson opinions, and for judicial economy, we adopt the following analyses of the three Supreme Court decisions as was set forth in State v. Jones, No. 105,169, unpublished opinion filed October 24, 2014, which reads as follows:
“ Hall was the first of the three opinions considering a district court's jurisdiction to decide restitution after the sentencing hearing, all of which were issued on the same day. 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. 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.
“The Kansas Supreme Court took care to clarify that a defendant may waive his or her right to be present at the continued sentencing hearing, but it advised district judges that it would be best to make a record of any such waiver. Further, the court held:
“ ‘[I]n a criminal matter, where judgment is effective once pronounced from the bench, a premature notice of appeal that seeks review of a conviction and sentencing yet to be completed lies dormant until final judgment including the entire sentence is pronounced from the bench. At that point, the notice of appeal becomes effective.’ 298 Kan. at 988.
“ Hall was followed by Charles, wherein the district court stated at sentencing that restitution “ ‘as contained within the presentence report will be ordered.’ “ 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 court noted that the district judge did nothing to indicate that he 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 there 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.” State v. Jones, No. 105,169, slip op. at 3–6.
Epps made the appropriate appellate argument in his initial brief filed November 2, 2010, that the State had lost jurisdiction to enter restitution when it was not entered at the time of his sentencing on September 17, 2009.
But, based on the teachings and authority of Hall, Charles, and Frierson, the arguments of the State and Epps in their responses to our show cause order, and the facts in the record, it is clear to us that the district court retained jurisdiction to set the amounts of Epps' restitution, and the district court's order setting the specific amounts of restitution by its August 19, 2010, order must be affirmed.
Whether the district court had jurisdiction is a question of law over which we exercise unlimited review. State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010). A sentence imposed by a court without jurisdiction is illegal pursuant to K.S.A. 22–3504(1). Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law with our review also being unlimited. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
K.S.A. 22–3424(c) states that upon a verdict or finding of guilt, “judgment shall be rendered and sentence pronounced without unreasonable delay....” We have held that when reviewing compliance with this statute, we must determine (1) whether the sentencing delay was inadvertent, (2) whether the defendant suffered prejudice by the delay, and (3) whether the defendant consented to the delay by failing to demand sentencing. State v. Cody, No. 98,279, 2008 WL 2571832, at *1–2 (Kan.App.2008) (unpublished opinion) (citing State v. Campbell, 273 Kan. 414, 424, 44 P.3d 349 [2002]; State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 [1985] ).
A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. Hall, 298 Kan. 978, Syl. ¶ 2.
Prior to Hall, there was no specific language required to continue a sentencing from one hearing to another and subsequent orders of restitution had been treated as fully authorized under the district court's subject matter jurisdiction and the district judge's discretion. 298 Kan. at 987.
Although Hall clarified that in the future a district court must make an explicit and specific order of continuance or whatever other aspect of sentencing remains incomplete, 298 Kan. at 987, in this case, the order made at Epps' sentencing was sufficient to retain jurisdiction over the restitution issue.
Restitution was specifically left open for 30 days and within that 30 days, the State filed a motion for a restitution hearing. Epps did not respond or object.
Several hearings were set and continued due to defendant's absence or the need for the State to obtain more appropriate documentation for its restitution claim.
Hall recognized that “establishing the proper amount of restitution can take some time,” 298 Kan. at 987, and the delay here appears to have been, in part, caused by Epps moving in the correctional system and changing victim's information. In any event, Epps never objected to the continuances or moved to expedite or require an earlier hearing.
Finally, Epps was present at the final restitution hearing, offered no evidence, and did not effectively counter the State's evidence which substantiated the award entered.
Based on the record presented to us, it is clear the requirements of Hall, Charles, and Frierson were followed and satisfied.
The district court's order regarding the specific amounts of restitution is affirmed.