Opinion
111,970.
05-22-2015
STATE of Kansas, Appellee, v. Jake MANNION, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Tabitha D.R. Owen, county attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Tabitha D.R. Owen, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jake Mannion appeals the amount of restitution ordered after he plead guilty to three counts of burglary and two counts of felony theft. Mannion contends the district court's order of $47,257 in restitution did not represent the fair market value of the stolen property on the day of the crime. We disagree and affirm.
On January 15, 2014, Mannion pled guilty to three counts of burglary and two counts of theft. Pursuant to the plea, Mannion agreed to pay restitution for all charges, even those dismissed. The district court sentenced Mannion to an underlying term of 52 months' imprisonment and granted a presumptive term of probation for 36 months. The court conducted a lengthy hearing on the amount of restitution and decided to impose an order of restitution in the amount of $47,257. Mannion alleges the court abused its discretion in determining the amount of restitution.
“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.” State v. Hall, 297 Kan. 709, 711, 304 P.3d 677 (2013). The burden of establishing an abuse of discretion lies with the party asserting the error. State v. Tague, 296 Kan. 993, 1002, 298 P.3d 273 (2013).
“Judicial discretion is abused if judicial 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, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
A district court's ability to impose a restitution plan during sentencing is governed by K.S.A.2014 Supp. 21–6604(b)(1), which provides: “[T]he 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.” The purpose of restitution is to compensate the victim and to deter and rehabilitate the defendant. State v. Cox, 30 Kan.App.2d 407, 409, 42 P.3d 182 (2002).
The amount of restitution ordered by the district court was as follows: Roy Shellito—$126; Edward Tompson—$4,110; Dan and/or Pam Crissman—$30,883; Harvey Armitage—$1,355; Dave and/or Nancy Stortz—$6,583; Monte Jones—$3,000; and American Family Insurance—$1,200 (Stortz Claim). Mannion did not contest the restitution amounts awarded to Armitage or Shellito.
At the restitution hearing, four witnesses testified concerning the value of the stolen property. Dave Stortz testified the list of stolen items he provided the police valued the items as of the date they were stolen in June 2013. He testified American Family had only paid him $1,200 for the stolen items. Pam Crissman testified she was claiming $36,520 in restitution. She testified she valued the guns by pricing similar used guns. She used the purchase price of most of the jewelry that was stolen. She testified to the cost of the stolen camera, the gun ammunition, how much it cost to repair the two doors kicked in during the burglary, replacing the stolen CD's, and the amount of cash stolen. Tompson testified the value of the guns stolen was determined at the time of the burglary. He also testified to the amount of cash and jewelry stolen, the cost of replacing the stolen passport, and the cost of repairing the front door. Theresa Barnett testified as to the number of coins stolen from Jones.
The district court found Mannion had stipulated to the amount of restitution ordered for Shellito and Armitage. The court went item-by-item discussing the amount of fair market value for the items stolen from Stortz, Tompson, Jones, and the Crissmans. The court discussed the best way to value the items, whether that was by the value of a similarly used item or the purchase price, and if the court determined the victims could not provide a value, it did not assess restitution for it. The judge stated, “Then again I want to emphasize that some of those values which I found to be appropriate were not fair market value but replacement value because there wasn't, based on jewelry and other items, there wasn't a way to find a fair market value other than to replace the item itself.”
While proof of a victim's damage or loss in a criminal case does not entail the same “rigidness and proof of value that lies in a civil damage suit ..., the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure.” State v. Casto, 22 Kan.App.2d 152, 154, 912 P.2d 772 (1996). “The measure of restitution to be ordered is the amount that reimburses the victim for the actual loss suffered. [Citations omitted].” Hall, 297 Kan. at 712–13.
In property crimes, Kansas courts have consistently restricted the amount of restitution to the fair market value of the property. See State v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 (2002) ; State v. Maloney, 36 Kan.App.2d 711, 714–15, 143 P.3d 417, rev. denied 282 Kan. 794 (2006); State v. Rhodes, 31 Kan.App.2d 1040, 1042–43, 77 P.3d 502 (2003) (restitution order reversed where value of various household goods was based on replacement cost rather than fair market value); Casto, 22 Kan.App.2d at 154 (restitution amount should not exceed fair market value immediately before the damage). Fair market value is “the price that a willing seller and a willing buyer would agree upon ... in an arm's-length transaction.” State v. Baxter, 34 Kan.App.2d 364, 366, 118 P.3d 1291 (2005). Generally, an award of restitution that exceeds an item's fair market value constitutes an abuse of discretion. State v. Behrendt, 47 Kan.App.2d 396, 400, 274 P.3d 704 (2012), summarily rev'd in part May 6, 2014.
“However, when there is no readily ascertainable fair market value ..., the district court may consider other factors in determining restitution, including the purchase price, condition, age, and replacement cost of the property, as long as the valuation is based on reliable evidence which yields a defensible restitution figure.”Maloney, 36 Kan.App.2d at 715. Nonetheless, our Supreme Court found fair market value “unpredictable in practice because it is entirely relative, depending on who is doing the buying and who is doing the selling.” Hall, 297 Kan. at 713. In Hall, the Supreme Court went on to acknowledge that fair market value may be “the best measure of loss in some cases, [but] it may not in all.” 297 Kan. at 713. Additionally, our Supreme Court reiterated:
“The appropriate amount [of restitution] is that which compensates the victim for the actual damage or loss caused by the defendant's crime. And the most accurate measure of this loss depends on the evidence before the district court. As long as the requisite causal connection exists, and “ ‘the [district] court's determination of restitution [is] based on reliable evidence’ “ that “ ‘yields a defensible restitution figure,’ “ [citation omitted], we will uphold the district judge's discretionary decision. [Citation omitted.]” 297 Kan. at 713–14.
Many of the items in this case had a readily determined fair market value, while others did not. The district court properly considered the unusual nature of the property as well as the cost of replacement as factors in its determination of the fair market value of the property at issue. For these reasons, Mannion has failed to establish the district court abused its discretion in determining the restitution order. Moreover, the restitution awarded is based on reliable evidence yielding defensible restitution figures and did not amount to a windfall to any of the victims.
Affirmed.