Opinion
No. 107,264.
2013-05-17
In the Matter of E.S., Date of Birth: XX/XX/96.
Appeal from Johnson District Court; PHILIP L. SIEVE, senior judge. Opinion filed May 17, 2013. Affirmed in part, reversed in part, and remanded with directions. Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney.
Appeal from Johnson District Court; PHILIP L. SIEVE, senior judge. Opinion filed May 17, 2013. Affirmed in part, reversed in part, and remanded with directions.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, and Stephen M. Howe, district attorney.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
MALONE, C.J.
In this juvenile offender case, E.S. appeals the district court's decision modifying restitution. E.S. pled guilty to one count of aggravated indecent liberties with a child who lived in his neighborhood. The district court placed E.S. on probation and ordered him to pay restitution to the victim's family. After E.S. was placed on probation, the victim's family decided that it was necessary to move from the neighborhood for the victim's emotional well-being. The district court heard evidence and awarded additional restitution for moving and relocation expenses in the amount of $36,649.06. E.S. claims that the district court lacked jurisdiction to modify its restitution order. In the alternative, E .S. argues that the district court erred in assessing the amount of restitution because the victim's moving and relocation expenses were not caused by E.S.'s offense. We conclude that the district court retained jurisdiction to modify the restitution order, but we remand for the district court to reconsider the amount of restitution E.S. should pay.
Factual and Procedural Background
On September 23, 2010, pursuant to plea negotiations, 14–year–old E.S. pled guilty to one count of aggravated indecent liberties with a child, after he fondled or touched his 8 or 9–year–old neighbor, C .S.T., in a lewd manner. The State dismissed two counts of aggravated criminal sodomy. The parties agreed to recommend that E.S. serve a 30–month sentence at a juvenile correctional facility (JCF). The parties also agreed to remain “open” regarding modification of the sentence to 36–month intensive supervision probation after E.S. served 60 days in custody. Because C.S.T. lived within 75–80 feet of E.S.—one house separated their residences—the parties also agreed to recommend a no contact order between E.S. and C.S.T. or his family.
On November 2, 2010, the district court held a sentencing hearing and committed E.S. to a JCF for a term of 30 months with an aftercare term of 6 months or until E.S. reached 23 years of age. The district court also ordered E.S. to register as a sex offender and to pay restitution in the amount of $2,000. The record does not reflect the purpose of the $2,000 restitution order.
The parties returned to court on December 22, 2010, for a hearing on E.S.'s motion to modify his sentence to probation. The State did not oppose the motion. At the conclusion of the hearing, the district court granted the motion and released E.S. to the custody of his parents under the supervision of his intensive supervision officer. At the modification hearing, the State noted that the restitution had already been paid. Also at the hearing, C.S.T.'s father, S.T., requested a no contact order prohibiting E.S. from coming within 1,500 feet of C.S.T. and his family. C.S.T.'s father noted that E.S.'s residence was currently for sale, but he believed a 1,500 foot no contact zone was necessary to ensure C.S.T.'s emotional well-being. The district court found such a condition to be impractical because E.S. had to “be able to go home.” While the district court understood the concerns of C.S.T.'s family, the court denied the request for a 1,500 foot no contact zone. Nevertheless, the journal entry of the modification hearing ordered E.S. to have no contact, direct or indirect, with the victim or the victim's family including any contact in the neighborhood that could in any way be avoided.
Almost 1 year later, on October 28, 2011, the State filed a motion to modify restitution seeking “reasonable moving and relocation expenses” recently incurred by C.S.T.'s family. The motion indicated that E.S.'s family had ceased their effort to sell their home within a few days after the sentencing modification hearing, so it became necessary for C.S.T.'s family to sell their home and move from the neighborhood. In particular, the State sought “[a]ctual closing costs and broker fees on the sale of [C.S.T.'s] house,” and a “down payment of five percent and closing costs on the purchase of a new home for [C.S.T.] in an amount equal to the fair market value of [C.S.T.'s] former home.” E.S. filed an objection to the State's motion to modify restitution asserting that the district court lacked jurisdiction to modify its previous restitution order. E.S. also argued that the additional restitution was not recoverable because the State had failed to establish a causal link between his unlawful conduct and the damages sought, as C.S.T.'s family had waited 20 months from the time of the offense to move from the neighborhood.
On December 7, 2011, the district court held a hearing to consider the State's motion. At the hearing, Kay Spaniol, C.S.T.'s therapist, testified that she did not believe it was healthy for a victim of sexual abuse to live in close proximity to the perpetrator, and she indicated that, in her opinion, moving away from E.S. was necessary for C.S.T. to heal. According to Spaniol, C .S.T. did not feel secure in his home because that was “where the abuse occurred,” and C.S.T. was very concerned about his safety, as E.S. had threatened to shoot him if he told anyone about the abuse. Spaniol testified that since the move, C.S.T. has appeared “much more carefree,” and he was “relieved and happy in his new home and new school.”
Similarly, S.T. testified that E.S.'s presence in the neighborhood exacted a tremendous emotional toll on C.S.T. According to ST., the tension in the neighborhood continued to escalate and, following an altercation between himself and E.S.'s father in May 2011, he finally made the decision to move. S.T. testified that the altercation began when C.S.T. ran into the house “scared and upset” because he believed E.S.'s father was intimidating him. In response, S.T. went to E.S.'s home, told E.S.'s father to “ ‘get out of the neighborhood,’ “ and “used some expletives” to express his displeasure. Apparently, the situation spiraled out of control necessitating police intervention and, as a result, the State charged S.T. with disorderly conduct. According to S.T., after this incident, he turned to his wife and declared, “ ‘Look, we're putting [our home] on the market tomorrow. If not, it's going to kill me. I'm going to end up in jail.’ “
S.T. testified that in order to relocate, he enlisted the assistance of a real estate agent and, after 5 or 6 months, he sold their house at a loss. S.T. testified that in order to complete the sale, he had to come to closing with “certified funds” in the amount of $22,183.06 to cover the cost of the broker commission and the remaining balance on their home loan. Additionally, he incurred costs totaling $16,792.22 to purchase their new house, including a $2,000 earnest money deposit and a 5 percent down payment in the amount of $14,792.22. S.T. explained that rather than seeking restitution for the total amount of their 5 percent down payment, he was only requesting 5 percent of the sale price of his previous home, i.e., $10,900. S.T. indicated that his family had purchased a more expensive home, and he believed they would receive “somewhat of a windfall” if he asked E.S. to pay for the entire down payment. Consequently, S.T. was requesting $12,900 toward the purchase of their new house ($2,000 earnest money deposit and $10,900 representing 5 percent of the sale price of the previous home). Finally, S.T. requested $1,566 the family paid for their physical move, for a total restitution request in the amount of $36,649.06.
After hearing the evidence, the district court found that it retained jurisdiction to modify the initial restitution order. The district court also found that the moving and relocation expenses incurred by C.S.T.'s family were directly related to E.S.'s offense. The district court emphasized that E.S.'s family could have avoided the expense if they would have moved from the neighborhood as they originally planned. The district court awarded restitution in the total amount of $36,649.06. Specifically, the district court awarded $22,183.06 for the loss associated with the sale of C.S.T.'s previous home, $12,900 for the costs associated with the purchase of C.S.T.'s new home, and $1,566 for the moving expenses incurred by C.S.T.'s family. The journal entry filed after the hearing stated, “Restitution in the amount of $36,649.06 is taxed to the Respondent's parents and ordered paid forthwith.” E.S. timely appealed the district court's judgment.
Jurisdiction to Modify Restitution Order
E.S. contends that, under the revised Kansas juvenile justice code (revised Code), K.S.A.2012 Supp. 38–2301 et seq. , the district court lacked jurisdiction to modify its previous restitution order. According to E.S., once the district court ordered restitution, the order became a final judgment under K.S.A.2012 Supp. 38–2361(d), and the district court did not retain jurisdiction to order additional restitution. The State maintains that the revised Code explicitly authorizes the district court to modify restitution orders.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). Likewise, interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
As a preliminary matter, we note that the initial $2,000 restitution order filed in this case on December 21, 2010, expressly authorized the district court to consider and order additional restitution in the interests of fairness to the juvenile respondent and the victim. The order sets forth restitution in the amount of $2,000 and provides:
“The Respondent is currently ordered to pay restitution in the following manner: Payments as directed by ISO or CSO. Thereafter the court will consider whether to release the juvenile from further restitution obligations. The court will also consider, in the interests of fairness to the juvenile and the victim(s), whether to order additional restitution obligations based upon the total liability amount.” (Emphasis added.)
At the sentencing hearing on November 2, 2010, the district court ordered restitution in the amount of $2,000 but did not expressly reserve the right to order additional restitution. However, the language authorizing additional restitution was included in the written order following the hearing. In an adult criminal case, a defendant's sentence does not derive its effectiveness from the journal entry; the sentence is effective upon pronouncement from the bench. State v. Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012). But unlike a defendant's sentence in an adult criminal case, a sentence under the revised Code does not garner its effectiveness upon oral pronouncement; instead, it becomes effective when entered into “the court's minutes.” K.S.A.2012 Supp. 38–2361(g). Likewise, appeals in a juvenile adjudication proceeding are governed by the Kansas code of civil procedure; thus, a juvenile has 30 days from the entry of judgment, rather than the pronouncement of the sentence, to file a notice of appeal. K.S.A.2012 Supp. 38–2382(c); K.S.A.2012 Supp. 60–2103(a). Under the Kansas code of civil procedure, “[n]o judgment is effective unless and until ajournal entry or judgment form is signed by the judge and filed with the clerk.” K.S.A.2012 Supp. 60–258.
Thus, the district court retained jurisdiction to modify its previous restitution order because the written order expressly authorized the district court to order additional restitution in the interests of fairness to the juvenile respondent and the victim. E.S. could have objected to the restitution order or challenged the court's reservation of jurisdiction by filing a timely appeal, but he chose not to do so. Although the district court did not premise its decision upon the language in the initial restitution order, if a district court reaches the correct result, an appellate court will uphold the district court's decision even though it relied upon the wrong ground or assigned erroneous reasons for its decision. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012).
Even though the initial restitution order authorized additional restitution, we also will address the parties' arguments as to whether the revised Code authorizes a district court to modify a restitution order. E.S. contends that the district court does not have continuing jurisdiction to modify a prior restitution order because an order of monetary restitution is a final judgment against the juvenile under K.S.A.2012 Supp. 38–2361(d), “that may be collected by the court by garnishment or other execution as a judgment in civil cases.” According to E.S., once a restitution order has been reduced to a final judgment, the amount of restitution cannot be modified.
E.S. acknowledges that In re C.A.D., 11 Kan.App.2d 13, Syl. ¶ 1, 16–18, 711 P.2d 1336 (1985), this court held that “a court in a juvenile offender case has the power and authority to modify orders of restitution originally imposed once it is lawfully determined the victim of the case has suffered increased expenses.” The court premised its holding upon K.S.A.1984 Supp. 38–1663(h) which read as follows:
“ ‘Whenever a juvenile offender is placed [on probation or in the custody of a parent or other suitable person], the court, unless it finds compelling circumstances which would render a plan of restitution unworkable, shall order the juvenile offender to make restitution to persons who sustained loss by reason of the offense. The restitution shall be made either by payment of an amount fixed by the court or by working for the persons in order to compensate for the loss. If the court finds compelling circumstances which would render a plan of restitution unworkable, the court may order the juvenile offender to perform charitable or social service for organizations performing services for the community.
“ ‘Nothing in this subsection shall be construed to limit a court's authority to order a juvenile offender to make restitution or perform charitable or social service under circumstances other than those specified by this subsection or when placement is made pursuant to subsection (c) or (d).’ “ In re C.A.D., 11 Kan.App.2d at 16.
While K.S.A.1984 Supp. 38–1663(h) did not explicitly authorize a court in a juvenile offender case to modify a restitution order, the court in In re C.A.D. determined that the italicized language provided such authority because restitution “seeks to restore the status quo” and, thus, it seemed logical to hold a wrongdoer responsible for all expenses associated with his or her conduct. 11 Kan.App.2d at 17. But as part of the 2006 revision of the juvenile offender code, the legislature repealed the language in K.S .A.1984 Supp. 38–1663(h) relied upon by the court in In re C.A.D. As E.S. notes, when the legislature revises an existing law, appellate courts generally presume that the legislature intended to change the law as it existed prior to the amendment. State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009). Thus, E.S. argues that the legislature's 2006 revision of the juvenile offender code overruled the court's decision in In re C.A.D.
But as the State points out, the revised Code explicitly authorizes a district court to modify a juvenile offender's sentence including a restitution order. K.S.A.2012 Supp. 38–2361(a)(7) expressly provides:
“(a) Upon adjudication as ajuvenile offender, pursuant to K.S.A.2012 Supp. 38–2356, and amendments thereto, modification of sentence pursuant to K.S.A.2012 Supp. 38–2367 and amendments thereto ... the court may impose one or more of the following sentencing alternatives.
(7) Order the juvenile to make appropriate reparation or restitution pursuant to subsection (d).” (Emphasis added.)
In conjunction with this revision, the legislature enacted the following language at K.S.A.2012 Supp. 38–2367(a):
“At any time after the entry of an order of custody or placement of a juvenile offender, the court, upon the court's own motion or the motion of the commissioner or parent or any party, may modify the sentence imposed. Upon receipt of the motion, the court shall fix a time and place for hearing and provide notice to the movant and to the current custodian and placement of the juvenile offender and to each party to the proceeding. Except as established in subsection (b), after the hearing, if the court finds that the sentence previously imposed is not in the best interests of the juvenile offender, the court may rescind and set aside the sentence, and enter any sentence pursuant to K.S.A.2012 Supp. 38–2361, and amendments thereto, except that a child support order which has been registered under K.S.A.2012 Supp. 38–2321, and amendments thereto, may only be modified pursuant to K.S.A.2012 Supp. 38–2321, and amendments thereto.” (Emphasis added.)
K.S.A.2012 Supp. 38–2361(a) expressly refers to the district court's authority to modify a sentence and impose one or more of the sentencing alternatives including appropriate reparation or restitution. Likewise, the plain language of K.S.A.2012 Supp. 38–2367(a) bestows upon the district court broad, discretionary authority to “modify the sentence imposed.” Because the revised Code explicitly authorizes a district court to modify a lawful sentence including an order of restitution, we conclude that the district court retained jurisdiction to modify its initial restitution order in E.S.'s case.
Amount of Restitution
Next, E.S. contends that even if the district court retained jurisdiction to modify the restitution order, the district court abused its discretion in ordering the amount of restitution. E.S. asserts that a district court can order restitution only for the damage or loss caused by the juvenile's offense and that in his case, the moving and relocation expenses claimed by C.S.T.'s family were not caused by the offense. E.S. points out that C.S.T.'s family did not move until 20 months after the offense was committed, and he argues that the moving and relocation expenses were an indirect, remote, or tangential result of his crime. The State maintains that the total amount of the moving and relocation expenses claimed by C.S.T.'s family were reasonable and were caused by the offense.
Although the standard of review for a challenge of a restitution order under the revised Code has not been defined, the standard of review of a restitution order under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , is as follows:
“The amount of restitution and manner in which it is made to the aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. [Citation omitted.] ‘Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure.’ [Citation omitted.] Because [the KSGA] limits the imposition of restitution to ‘damage or loss caused by the defendant's crime,’ the question of whether an item claimed by the aggrieved party as loss qualifies for inclusion in a restitution order because it was caused by the defendant's offense is a question of law. [Citation omitted.] An appellate court's review of conclusions of law is unlimited. [Citation omitted.]” State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002).
An order of restitution under the revised Code is governed by K.S .A.2012 Supp. 38–2361(d) which provides as follows:
“The following provisions apply to the court's determination of whether to order reparation or restitution pursuant to subsection (a)(7):
(1) The court shall order the juvenile to make reparation or restitution to the aggrieved party for the damage or loss caused by the juvenile offender's offense unless it finds compelling circumstances that would render a plan of reparation or restitution unworkable. If the court finds compelling circumstances that would render a plan of reparation or restitution unworkable, the court shall enter such findings with particularity on the record. In lieu of reparation or restitution, the court may order the juvenile to perform charitable or social service for organizations performing services for the community; and
(2) restitution may include, but shall not be limited to, the amount of damage or loss caused by the juvenile's offense. Restitution may be made by payment of an amount fixed by the court or by working for the parties sustaining loss in the manner ordered by the court. An order of monetary restitution shall be a judgment against the juvenile that may be collected by the court by garnishment or other execution as on judgments in civil cases. Such judgment shall not be affected by the termination of the court's jurisdiction over the juvenile offender.”
E.S. contends that the district court erred by ordering restitution for the moving and relocation expenses because the expenses were not caused by his offense as required by statute. “[T]he question of whether an item claimed by the aggrieved party as loss qualifies for inclusion in a restitution order because it was caused by the defendant's offense is a question of law.” Hunziker, 274 Kan. at 660. “An appellate court's review of conclusions of law is unlimited.” 274 Kan. at 660.
K.S.A.2012 Supp. 38–2361(d)(1) provides that “[t]he court shall order the juvenile to make reparation or restitution to the aggrieved party for the damage or loss caused by the juvenile offender's offense unless it finds compelling circumstances that would render a plan of reparation or restitution unworkable.” (Emphasis added.) However, K.S.A.2012 Supp. 38–2361(d)(2) provides that “restitution may include, but shall not be limited to, the amount of damage or loss caused by the juvenile's offense.” (Emphasis added.)
When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). Construed as a whole, these two potentially conflicting provisions can be reconciled with one another. Based on the plain language of the statute, while the district court shall award restitution to the aggrieved party for the damage or loss caused by the juvenile's crime, the district court may order additional amounts not limited to the damage or loss caused by the juvenile's crime. Had the legislature desired to limit restitution in juvenile offender cases solely to the damages caused by the juvenile's crime, it easily could have done so by omitting the phrase “but shall not be limited to” in K.S.A.2012 Supp. 38–2361(d)(2).
As a general rule, we have no difficulty finding that a restitution order for reasonable moving and relocation expenses for the victim of a sex crime is entirely proper when the assailant is on probation and the victim resides in the same neighborhood. A sex crime often exacts an extraordinary emotional toll on the victim, and the victim quite naturally might want to live elsewhere to avoid additional trauma on a daily basis. See State v. Hall, No. 102,495, 2010 WL 5490727, at *6 (Atcheson, J., concurring) (Kan.App.2010) (unpublished opinion), rev. granted September 23, 2011.
Here, at the restitution hearing, Spaniol and S.T. both testified that the move was necessary to restore C.S.T.'s mental health, as E.S.'s presence in the neighborhood exacted a tremendous emotional toll on him. In fact, S.T. explained,
“[C.S.T.] was scared. He was extremely worried that the Respondent in this case, [E.S.], was going to come over to our house and shoot him or hurt him. He literally would go to bed every night with the covers over his head, covering himself, making sure that plenty of lights were on. It was all new behavior for him. He had never acted like that before. But after the disclosure [of the abuse], there was just a noticeable change in how he acted. He was a terrified little boy and continued to be that way well up until we moved in October of this year.
“But then school starts in [the] fall, and he started middle school. And unfortunately his bus stop is—for him to get to the bus stop, he has to take the bus stop right in front of [E.S.'s] residence at 7 o'clock in the morning or 7:30 in the morning, and it caused problems for him. He was scared. A lot of times [E.S.'s father] was outside with his dog.
“... We had to hold [C.S.T.] back so it was an all-clear situation before he'd get on the bus. He'd have to walk in front of the residence on his way home from school. You know, I mean he was literally begging his mom and I [ sic ] to move.”
Likewise, C.S.T. wrote a letter to the sentencing judge, which stated:
“ ‘[E.S.] even said, ‘I will shoot you with my shotgun, if you tell.’ I was scared for my life. And this happened when I was 7. And 1 know it's not my choice, but if I were the Judge I would say: 10 years in prison, so he would never do this again, and that his family should move too. Because ... [E.S.'s] dad, stares at me through his window. And one time he laughed because a baseball went in the sewer when me and my family [ sic ] were playing catch.
“ ‘I still think in bed that [E.S.] is going to kill me in my sleep. So please, please, I'm begging you, please make him go to jail for what he did and a Judge knows if I'm right, if I'm wrong, so make him go to jail because I do not want to worry any more in my sleep.
“ ‘From the victim, [C.S.T.] P.S., Make them move too.’ “
The evidence established that C.S.T.'s family was forced to relocate for the emotional well-being of their son when E.S.'s family abandoned their effort to sell their home. As the district court found, C.S.T.'s family incurred substantial damages which they would not have incurred but for this crime. Thus, even though restitution in a juvenile offender case need not be limited to the damage caused by the juvenile's offense, we conclude that the district court did not err in finding that the moving and relocation expenses incurred by C.S.T.'s family were directly related to E.S.'s offense.
That being said, we review the amount of restitution ordered by the district court under an abuse of discretion standard. A judicial action constitutes an abuse of discretion,
“if [the] 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, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Here, the district court certainly did not abuse its discretion by ordering restitution for the $1,566 in out-of-pocket expenses C.S .T.'s family paid for their physical move, and E.S. concedes that this amount was reasonable. But E.S. challenges the $12,900 the district court awarded for the costs associated with the purchase of C.S.T.'s new home. A primary purpose of restitution is to make the victim whole. State v. Applegate, 266 Kan. 1072, 1076–77, 976 P .2d 936 (1999). As E.S. asserts, by awarding C.S.T. the money his family expended to purchase their new home, the district court conferred a windfall upon them, as C.S.T.'s family acquired a more valuable asset and they stand to recoup the money they invested into their new home as equity. S.T. admitted this fact during his cross-examination at the modification hearing:
“[E.S.'s COUNSEL]: And you're also requesting a five percent down payment representing five percent of the sale price of your previous house; is that right?
“[S.T.]: Yes.
“[E.S.'s COUNSEL]: And if that's paid to you, that's equity in your new home immediately; right?
“[S.T.]: Well, you have to come up with it before you buy a house.
“[E.S.'s COUNSEL]: And it's equity in your new home; correct?
“[S.T.]: Yeah, I suppose it would be.
“[E.S.'s COUNSEL]: So you recover it whenever you sell your new home?
“[S.T.]: Well, you've got to come up with it to begin it, but I suppose that's true.
“[E.S.'s COUNSEL]: Well, it is. It's immediate equity that you own in that house; right?
“[S.T.]: I look at it as money that I had to come up with to get into a new house, but, yes, it becomes equity.
“[E.S.'s COUNSEL]: Well, it is equity. It's an equity payment in the house that you bought; right?
“[S.T.]: Yeah, I suppose so.”
By providing restitution for an amount above and beyond the actual physical moving costs, the district court provided C.S.T. with compensation beyond that necessary to make him whole. C.S.T.'s family stands to recoup the money they invested into their new home as equity. Thus, we conclude that the district court abused its discretion when it awarded C.S.T. $12,900 for the money the family expended to purchase the new home.
We also question the $22,183.06 the district court awarded for the “costs” associated with the sale of C.S.T's previous home. Although it is impossible to tell from the record, it appears that a portion of this amount covered the cost of the broker commission which would be a reasonable out-of-pocket expense incurred by C.S.T.'s family. But C.S.T.'s family incurred the remainder of this amount because they sold their previous home at a loss. According to the State's memorandum in support of the motion to modify restitution, C.S.T.'s family purchased their previous home for $235,000 and they sold it for $218,000, a $17,000 loss, most of which was included as part of the district court's modified restitution order. The evidence does not explain why C.S.T.'s family incurred such a loss in the sale of their previous home. The reasons might have included the fact that the family did not properly maintain the home or perhaps they made a poor investment in the home in the first place. Under these circumstances, ordering E.S. to pay for the loss on the home would seem to be an abuse of discretion.
As a final matter, we note that the journal entry modifying restitution stated: “Restitution in the amount of $36,649.06 is taxed to the Respondent's parents and ordered paid forthwith.” Although neither party has raised the issue, we question the district court's jurisdiction to tax the restitution to E.S.'s parents who are not a party to this case. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010) (appellate court has duty to question jurisdiction on its own initiative). K.S.A.2012 Supp. 38–2361(d) states that the district court shall order the “juvenile” to make reparation or restitution to the aggrieved party and the restitution order becomes a judgment against the “juvenile” which is not affected by the termination of the court's jurisdiction over the juvenile. This language demonstrates the legislature's intent to hold the juvenile, rather than his or her parents, responsible for any order of restitution.
Under K.S.A.2012 Supp. 38–2315, the expenses of care and custody of a juvenile offender who has been placed in state custody can be assessed against the juvenile's parents. Likewise, under K.S.A.2012 Supp. 38–2362, the district court may require parents to participate in counseling, mediation, alcohol and drug evaluations/treatment programs, and parenting classes and order the parents to be responsible for payment of the costs associated with those programs. But the statute does not reference the payment of restitution as one of the orders the district court is authorized to impose on a parent. Had the legislature intended to involve parents in the payment of restitution, it easily could have done so. Moreover, allowing the court to assess restitution, which is part of the juvenile's sentence, against the parents seemingly conflicts with the goals of the revised Code, i.e., “to promote public safety, hold juvenile offenders accountable for their behavior and improve their ability to live more productively and responsibly in the community.” See K.S.A.2012 Supp. 38–2301. Thus, we conclude that the district court erred in assessing restitution against E.S.'s parents.
We remand this case to the district court with directions to reconsider the amount of its restitution award for the reasonable moving and relocation expenses incurred by C.S.T.'s family. The district court should not award any restitution for the down payment on C.S.T.'s new home that the family stands to recoup as equity in the home. Likewise, the district court should not order restitution for the “loss” incurred by the family in the sale of their previous home without evidence explaining the reason why the home was sold at a loss. Upon remand, any restitution amount ordered by the district court must be assessed only against E.S. and not his parents. Finally, the district court should consider the entire amount of restitution being awarded and the circumstances of E.S.'s case to determine if there are compelling circumstances that would render any plan of restitution unworkable. See K.S.A.2012 Supp. 38–2361(d)(1).
Affirmed in part, reversed in part, and remanded with directions.