Opinion
No. 104,049.
2014-10-24
STATE of Kansas, Appellee, v. Joseph Abdullah MUHAMMAD, Appellant.
Appeal from Douglas District Court; Michael J. Malone, Judge.Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.Nicole Romine and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Steve Six, attorney general, for appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Nicole Romine and Gregory T. Benefiel, assistant district attorneys, Charles E. Branson, district attorney, and Steve Six, attorney general, for appellee.
Before McANANY, P.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following this court's memorandum opinion in State v. Muhammad, No. 104,049, 2011 WL 1814919 (Kan.App.2011) (unpublished opinion), filed on April 22, 2011, Joseph A. Muhammad filed a petition for review, which was granted on May 6, 2014.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 reconsideration 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 on appeal is whether the district court lacked jurisdiction to impose restitution after it had already imposed a lawful sentence. For the reasons explained herein, we find that the district court lacked jurisdiction at the time it entered its order for restitution.
On December 18, 2009, at the conclusion of Muhammad's sentencing hearing, the State asked the district court to retain jurisdiction to determine restitution at a later date. The court set the restitution hearing for a later date and stated the restitution amount was “to be determined by either an agreed upon order or a hearing.” The journal entry of judgment indicated that restitution was “TBD* ” and further noted “ *Restitution as ordered within 60 days.” On February 22, 2010, the district court issued a restitution order requiring Muhammad to pay $662.28 in restitution. The order was prepared and signed by the prosecutor and approved and signed by Muhammad's previous defense counsel. Muhammad appealed, arguing in part that the district court lacked jurisdiction to order restitution after the district court had imposed a lawful sentence. On appeal, this court declined to deviate from precedent found in State v. Cooper, 267 Kan. 15, 18, 997 P.2d 960 (1999). Muhammad, 2011 WL 1814919, at *2. In Cooper, the Kansas Supreme Court held that a district judge who timely ordered restitution at sentencing had discretion to extend the time to set an amount of that restitution. 267 Kan. at 118.
Following the Supreme Court's remand, this court ordered each party to file and serve a written response setting forth any and all arguments as to how this court's initial memorandum opinion should be reconsidered in light of Hall, Charles, and Frierson. Before discussing those arguments, we should summarize the opinions that have brought us to reconsider Muhammad's appeal.
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. at 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. 298 Kan. at 987–88. 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.
In Charles, 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. 298 Kan. at 1002–03.
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.
In Frierson, the Kansas Supreme Court determined that the procedure used here 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. 298 Kan. at 1021.
Muhammad asserts that the facts of his case are comparable to those in Charles because the district court did not say anything to indicate it intended to continue sentencing in order to determine restitution. Further, Muhammad argues the district court violated his right to be present at all critical stages of the trial when it ordered restitution here without doing so in open court with him and his counsel present. He notes that he did not waive his right to be present.
Contrary to Muhammad's assertion that the district court did nothing to indicate it intended to continue sentencing in order to determine restitution, the record indicates that at the sentencing hearing, the State requested 60 days to gather additional information to determine the amount of restitution in this case, and Muhammad did not object. Later in that hearing, the district judge stated, “The court will order as part of the sentencing of Mr. Muhammad that upon release from prison he make restitution, and that is to be determined by either an agreed upon order or a hearing.” Then the journal entry of judgment noted that restitution was to be determined, “as ordered within 60 days.” All of this resulted in essentially a 60–day continuance akin to that found in Frierson, which preserved the district court's subject matter jurisdiction.
Unlike Frierson, however, the district court here did not enter its restitution order within the 60 days. Sixty-six days passed before the order was entered. The record does not show that an additional continuance was granted, and it does not indicate any reason for the delay. Though no “magic words” were required to continue a sentencing hearing prior to Hall, “more than nothing has nevertheless been the rule.” See Charles, 298 Kan. at 1002. The restitution was properly continued for 60 days here, but the district court did nothing to continue it further. Under these facts, the district court lost subject matter jurisdiction to enter the order of restitution when it did not act within the 60–day continuance.
Because we find that the district court lost jurisdiction to enter the order of restitution, we do not need to address Muhammad's additional argument that the district court violated his right to be present at all critical stages of the trial when it ordered restitution without doing so in open court with him and his counsel present.
Reversed and vacated.