Opinion
111,078.
04-24-2015
STATE of Kansas, Appellee, v. Gerry JONES, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gerry Jones appeals from the district court's restitution order that he reimburse the Crime Victims' Compensation Board (CVCB) $3,175 for psychological counseling expenses incurred by the victims of his crime. We affirm that part of the district court's order which directed reimbursement to the CVCB but vacate the amount ordered ($3,175) and remand for an evidentiary hearing to determine the correct amount of restitution owed by Jones to the CVCB.
Factual and Procedural Background
Jones pled guilty, pursuant to plea negotiations, to one count of robbery after he forcefully took a backpack containing gold jewelry from a 9–year old child, J.G., in the presence of his mother. In keeping with the plea agreement, Jones
“agree[d] to pay restitution to the victim in the amount of $655 for medical bills and in the event more [was] requested the State reserve [d] the right to have a hearing for any additional amount if it [was] not agreed on. The restitution [was] to be joint and several with the co-defendant[s].”
The sentencing hearing was held on September 27, 2013. At the hearing, both J.G. and his mother addressed the district court. J.G. advised the district court that he was oftentimes fearful because he feels
“like somebody is going to try to attack me or somebody is going to do something bad to me like that [the robbery] happened. And ... before each night I check every door if its locked and I check the whole time because I get nervous.... I lock the car[ ] [doors.] ... And right now I would like to cry now, but I want to be strong.”
J.G.'s mother told the district court:
“These months for me have been very difficult.... I take my son to therapy every week because he can't overcome what happened to us that day.... He wants every night for me to sleep with him because he thinks that they are going to come in and attack him the way they did that day.
“I also suffer from anxiety and panic attacks....
“I've taken him and we've both talked with the psychologist. I asked him, the psychologist, if he's getting better. Just a little bit.
“They took away our peace. They gave us this fear.”
J.G.'s mother also brought a letter to court from the psychologist who was counseling J.G.
The parties then provided the district court with their respective sentencing recommendations. In keeping with the plea agreement, the prosecutor recommended a presumptive prison sentence consistent with the upper number in the applicable sentencing guidelines grid box. The prosecutor then stated, “With respect to restitution, it's agreed upon for $655 worth of medical bills. There is also an additional fee of $3,175 that the [CVCB] is going to pay.” After repeating the amount at the district judge's request, the prosecutor explained, “The [CVCB] is going to pay that for therapy. It's been approved as of August 16th of 2013. I don't believe there's any objection, as long as it's joint and several, by the defense, and I would ask the Court to make that part of his fine as well.”
Although Jones and his counsel subsequently made arguments in support of a departure sentence, neither of them objected to the restitution order or mentioned it during the sentencing hearing.
The district court sentenced Jones to 46 months' incarceration and ordered him to pay restitution of $655 to the victim and $3,175 to the CVCB “for the cost of the counseling.” Notably, after the district judge finished imposing Jones' sentence, he asked if there was “anything else that need[ed] to be done,” and Jones' counsel replied, “No, Your Honor.”
Jones filed a timely appeal challenging the restitution order.
Discussion
On appeal, Jones contends “[t]he district court erred in ordering Mr. Jones to pay restitution to the [CVCB].” While Jones acknowledges that he agreed to pay $655 in medical bills, he claims the district court erred when it awarded $3,175 to the CVCB for the costs of counseling. Jones presents two arguments. First, he asserts that substantial competent evidence does not support the district court's determination that a causal link exists between his criminal conduct and the victims' therapy expenses. Second, Jones argues that the district court abused its discretion when it determined the amount of the award to the CVCB because it premised its order upon the prosecutor's statements, rather than reliable evidence.
Preliminarily, as the State notes, Jones did not object to the district court's restitution order below, and a defendant's failure to object to restitution generally precludes an appellate court from addressing the issue on appeal. See State v. King, 288 Kan. 333, 356, 204 P.3d 585 (2009) ; State v. Hunziker, 274 Kan. 655, 661–62, 56 P.3d 202 (2002). However, because the merits of Jones' causation argument may be straightforwardly addressed, and the State has commendably requested that we remand the case in order to determine the correct amount of restitution for therapy expenses, we will overlook any procedural impediment to appellate review.
The restitution order in this case is governed by K.S.A.2011 Supp. 21–6604(b)(1), which directs a sentencing court to award restitution in an amount, “which shall include, but not be limited to, damage or loss caused by the defendant's crime.” As recently explained by our Supreme Court in State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014), the following three standards guide appellate review of restitution awards:
“ ‘Issues regarding the amount of restitution and the manner in which it is made to the aggrieved party are normally subject to review under an abuse of discretion standard. [Citation omitted.] A district judge's factual findings underlying the causal link between the crime and the victim's loss are subject to a substantial competent evidence standard of review. [Citation omitted.] And this court has unlimited review over interpretation of statutes. [Citations omitted.]” ‘
Jones concedes the “victim's mother and the victim began speaking with a psychologist following the incident to deal with their new-found fear.” But Jones argues that this new-found fear has resulted in a “tangential cost incurred as a result of the crime.” (Emphasis added.) We disagree.
As set forth earlier, both J.G. and his mother explained to the district court how Jones' robbery of J.G. in the presence of his mother had directly caused psychological damage to their sense of security and emotional well being. Similar to the physical harm incurred by J.G. which resulted in $655 worth of medical bills, the psychological harm sustained by J.G. and his mother was directly caused by Jones' criminal conduct. The district court had a substantial competent basis to find that the costs of psychological counseling were not tangential but directly caused as a result of the crime committed by Jones. We hold the district court did not abuse its discretion by awarding restitution to the CVCB for its costs in providing psychological therapy to J.G. and his mother.
Next, Jones argues that the district court abused its discretion when it determined that the therapy costs amounted to $3,175 because it premised its order upon the prosecutor's statements rather than reliable evidence. In the interest of candor, the State informs us that the prosecutor “misspoke” regarding the expenses incurred by the CVCB, and the State requests a remand for further proceedings to determine the correct amount of restitution due to the CVCB.
Given the State's concession and the parties' request for a remand, we vacate that part of the restitution order which directed Jones to reimburse the CVCB $3,175 for payment of psychological counseling. Upon remand, the district court shall conduct an evidentiary hearing for the sole purpose of determining the correct amount of restitution that Jones shall pay to the CVCB for reimbursement of the victims' counseling expenses.
The district court's restitution order is affirmed in part, vacated in part, and remanded with directions.