Opinion
No. 111,124.
2014-10-10
STATE of Kansas, Appellee, v. Michael WEST, Appellant.
Appeal from Riley District Court; Merly D. Wilson, Judge.Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.Barry K. Disney, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Merly D. Wilson, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Barry K. Disney, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ. PER CURIAM.
Michael West appeals the restitution portion of his sentence imposed after he pled no contest to one count of criminal damage to property. Because we find the district court did not abuse its discretion in imposing restitution in this case, we affirm.
On September 23.2013, West pled no contest to one count of criminal damage to property. On October 28, 2013, the district court held a sentencing hearing. At the hearing, defense counsel argued that the district court should either not impose restitution or limit it because West was receiving disability benefits of about $1,000 per month, which counsel argued covered necessities of “[g]as, mortgage, utilities, food.”
Defense counsel argued that although the court was required to impose restitution unless there is a compelling reason that it is unworkable, disability benefits are exempt from garnishment, so it would be unworkable for him to pay it. According to counsel, the victim—Pawnee Mental Health—would only be out the deductibles because insurance covered “a good chunk of the tab.” Counsel also argued that some of the restitution amounts requested were just estimates, and restitution was supposed to be for actual costs. Finally, defense counsel reiterated that restitution was unworkable and should not be assessed.
The State argued for the district court to impose restitution in the full amount, which the district court did, ordering West to pay $5,212.46 in restitution. The district court also imposed 12 months' probation with an underlying 5–month prison sentence.
On appeal, West argues that the district court erred in ordering restitution in this case. Appellate courts generally review questions concerning the amount of restitution for abuse of discretion, which occurs when judicial action was arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. State v. Hall, 297 Kan. 709, 711–12, 304 P.3d 677 (2013).
A district court's ability to impose a restitution plan during sentencing is governed by K.S.A.2013 Supp. 21–6604(b)(1), which provides in relevant part that “the court shall order the defendant to pay restitution ... unless the court finds compelling circumstances which would render a plan of restitution unworkable.” The Kansas Supreme Court has held that the clear language of the statute “makes clear that restitution is the rule and a finding that restitution is unworkable the exception.” State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 (2003). Additionally, the burden is on the defendant “to come forward with evidence of his or her inability to pay.” 276 Kan. at 583.
The State argues that the district court did not abuse its discretion in ordering restitution because West presented no evidence supporting his argument that restitution was unworkable. West only presented his counsel's statements regarding his income and expenses. The State contends that in order to meet his burden to prove his inability to pay, West should have presented testimony or documents supporting his claim. However, the State argues that even if this court considers defense counsel's arguments as evidence, the statements were insufficient to prove the district court abused its discretion by imposing restitution.
West's argument in support of his contention that paying restitution would be unworkable was that he was receiving disability benefits of about $1,000 per month, which covered only his necessities and was exempt from garnishment. He did not present evidence as to what his monthly expenses were or whether he was permanently disabled and never would be able to increase his income. We conclude that the district court did not abuse its discretion in finding these reasons insufficient to create an exception to the restitution requirement as the arguments did not constitute “compelling circumstances which would render a plan of restitution unworkable.” K.S.A.2013 Supp. 21–6604(b)(1), We, therefore, affirm the district court's restitution order.
Affirmed.
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PIERRON, J,: dissenting.
I respectfully dissent. Mr. West is disabled and apparently has an income of only $1,000 a month, The restitution in this case is $5,212.46 to be paid in 12 months. This would mean he would have to pay about $435 per month in restitution, leaving $565 a month to live on. I do not think this is a reasonable order, and we are setting him up for failure. Because the plan of restitution appears to be unworkable on its face, I do not believe we should approve it. I dissent from the enforcement of the plan by the majority.