Opinion
Nos. 104,716 105,081.
2012-06-22
STATE of Kansas, Appellee, v. Joseph TONGE, Appellant.
Appeal from Geary District Court; Maritza Segarra, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Appeal from Geary District Court; Maritza Segarra, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PIERRON, J.
Joseph Tonge appeals the district court's assignment of the collection of his restitution judgment to the district court trustee's office. He also challenges the amount of the fees collected by the trustee.
In case No. 08CR714, Tonge pled no-contest to two counts of forgery. On December 12, 2008, the district court sentenced Tonge to a combined sentenced of 29 months of incarceration for both convictions. However, the court granted a dispositional departure and placed Tonge on community corrections for 18 months. The court ordered restitution in the amount of $2,470 joint and several with any codefendants. After questioning Tonge about his current employment, the court ordered Tonge to pay $172 in costs, $100 for Board of Indigents' Defense Services' administrative fee, and $500 in BIDS attorney fees. The court ordered Tonge to set up a payment plan and make the payments.
On May 20, 2009, the State filed a motion to revoke Tonge's probation based on his arrest for residential burglary, theft, criminal damage to property, and obstruction in case No. 09CR367. Tonge pled no-contest on July 23, 2009, to a reduced charge of receiving stolen property. Consequently, on July 31, 2009, the court revoked his probation in 08CR714 based on his new conviction and ordered him to serve his 29–month incarceration sentence. On September 25, 2009, Tonge was sentenced in case No. 09CR367 to 16 months' incarceration. He was also ordered to pay $1,287.57 in restitution plus $1,108 in court costs for a total of $2,395.57.
On August 19, 2009, the clerk of the district court issued an execution of judgment in case No. 08CR714 in the amount of $2,165 for remaining restitution and $822 for court costs for a total of $2,987. On September 30, 2009, the clerk of the district court issued an execution of judgment in case No. 09CR367 for $2,395.57.
On October 20, 2009, the Eight Judicial District Court Trustee sent two letters to Tonge at the El Dorado Correctional Facility. The first letter indicated that collection of the balance of $2,395 .57 due in case No. 09CR367 had been referred for collection to the district court trustee's office. Collection costs of $1,179.82 were assessed for a total due of $3,575.39. The second letter indicated that collection of the balance of $2,987 due in case No. 08CR714 had been similarly referred. Collection costs of $1,471.10 were assessed for a total due of $4,458.10. Tonge objected to these letters.
In both case No. 08CR714 and case No. 09CR367, Tonge filed an objection to the assessment of the additional costs by the district court trustee's office. Tonge argued the trustee exceeded the amount of authorized costs and there was never any evidence presented to establish that he was not in compliance with a payment plan established by the court. The trustee responded that Tonge's financial obligations remained unsatisfied and the assignment and collection of the restitution and costs debts to the trustee's office was proper. The district court heard arguments from counsel and testimony from the court trustee.
In denying Tonge's objection to the trustee's collection of the judgments, the district court concluded that (1) a restitution judgment may be collected by the court, garnishment, or other execution under K.S.A. 21–4603d; and (2) if after 60 days from the date restitution is ordered, a defendant is found not in compliance with the plan established by the court, then the court shall assign an agent to collect restitution.
The district court found that if a defendant is incarcerated, the court may send the restitution for garnishment, execution, or debt collection. The court stated that if the defendant is found to be noncompliant with an established plan, then the court shall assign an agent for collection. The court found the court trustee's collection of the debt was a statutorily authorized disposition and the methodology by which it figured the amount due and the amount it would take to pay off the judgment complied with the maximum fee allowed under K.S.A.2011 Supp. 75–719.
First, Tonge argues that in order for the district court to assign an agent to collect a restitution order, the court must make a finding on the record that the defendant has not complied with a restitution order and the victim has not initiated a civil recovery action. Tonge argues the assignment of the collection was improper in this case.
The extent of the State's argument is limited to comments that if the district court orders a case for collection, there is an “implicit” finding that the defendant is noncompliant. Since Tonge has not presented evidence that he has paid any restitution, it does not matter whether a detailed plan was ever established or if referral in his second case was premature—he still has not made a good faith effort to pay restitution. The State also points out that Tonge was released from incarceration on September 15, 2011, and has yet to pay any restitution.
This issue requires us to interpret the Kansas statutes regarding authorized dispositions following a conviction and the district court's ability to collect restitution judgments. We have an unlimited review of statutory interpretation. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (Interpretation of a statute is a question of law over which appellate courts have unlimited review.).
K.S.A.2011 Supp. 21–6604(b)(2) (f/k/a K.S.A. 21–4603d) states:
“If the court orders restitution, the restitution shall be a judgment against the defendant which may be collected by the court by garnishment or other execution as on judgments in civil cases. If, after 60 days from the date restitution is ordered by the court, a defendant is found to be in noncompliance with the plan established by the court for payment of restitution, and the victim to whom restitution is ordered paid has not initiated proceedings in accordance with K.S.A. 60–4301 et seq. , and amendments thereto, the court shall assign an agent procured by the attorney general pursuant to K.S.A. 75–719, and amendments thereto, to collect the restitution on behalf of the victim. The chief judge of each judicial district may assign such cases to an appropriate division of the court for the conduct of civil collection proceedings.”
K.S.A.2011 Supp. 21–6604(a)(2) and (d) also provide authorization for the district court to order the defendant to pay any criminal fines and also costs of representation associated with a conviction. K.S.A.2011 Supp. 75–719(a) is relevant for purposes of collecting these fines and costs:
“The attorney general is authorized to enter into contracts in accordance with this section for collection services for debts owed to courts or restitution owed under an order of restitution. On and after July 1, 1999, the cost of collection shall be paid by the defendant as an additional court cost in all criminal, traffic and juvenile offender cases where the defendant fails to pay any amount ordered by the court and the court utilizes the services of a contracting agent pursuant to this section. The cost of collection shall be deemed an administrative fee to pay the actual costs of collection made necessary by the defendant's failure to pay court debt and restitution.”
Our research has not revealed any cases, nor has either party cited to any cases, that address when the district court can assign either a restitution order or order for fines, fees, and costs, to an authorized contracting agent for collection. We can find no statutory restrictions for assignment of the order for fines, fees, and costs to an authorized collection agent pursuant to K.S.A.2011 Supp. 21–6604(d) or K.S.A.2011 Supp. 75–719(a), (b)(3), (b)(4). Here, the court had the authority to assign Tonge's costs and fees judgment for collection by the court trustee. However, the legislature has clearly provided that the assignment of a restitution order for collection is treated differently under K.S.A.2011 Supp. 21–6604(b)(2).
Before a restitution order can be assigned for collection under K . S.A.2011 Supp. 21–6604(b)(2), the district court must make three specific findings: (1) 60 days has passed from the date restitution was ordered; (2) the defendant is in noncompliance with the plan established by the court for payment of restitution; and (3) the victim/beneficiary of the restitution order has not initiated independent civil enforcement of judgment of restitution proceedings under K.S.A. 60–4301 et. seq. These findings were not made by the district court below.
The reason to treat the restitution order different from costs and fees is the possibility that the victim/beneficiary of the restitution order has initiated independent collections proceedings. The situation of competing collecting agents is not possible in the orders for fees, fines, and costs because those are due to the court. Whereas for restitution, any victim who is the beneficiary of a restitution award can hire an authorized contracting agent to pursue collection of the restitution amount. K.S.A.2011 Supp. 75–719(e) provides: “Any beneficiary under an order of restitution entered by a court after this section takes effect is authorized to utilize the collection services of contracting agents pursuant to this section for the purpose of collecting all outstanding amounts owed under such order of restitution.”
There is no evidence the district court complied with the three statutory requirements of K.S.A.2011 Supp. 21–6604(b)(2) in order to assign Tonge's restitution orders to the district court trustee for collection. We are not persuaded by the State's “harmless error” analysis of Tonge's failure to pay any restitution inferring noncompliance with the restitution order. We vacate and remand for further proceedings.
Tonge also argues the methodology by which the trustee computed its fee violated the maximum allowed under the K.S.A.2011 Supp. 75–719(c)(5). Since we are vacating the district court's order and remanding the matter for reconsideration, we need not address this issue.
Because the district court entered its order without complying with the requirements of K.S.A.2011 Supp. 21–6604(b)(2), we vacate that order. The case is remanded for further proceedings consistent with this opinion.
Vacated and remanded with directions.