State v. Arnett

496 P.3d 928

STATE of Kansas, Appellee,

v.Taylor ARNETT, Appellant.

No. 112,572

Supreme Court of Kansas.

Opinion filed October 15, 2021.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Alan T. Fogleman, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Wilson, J.:

Taylor Arnett petitions this court for review of the judgment of the Court of Appeals affirming the restitution ordered against her by the district court. She argues that the restitution violates her right to a jury under both the Sixth Amendment of the United States Constitution and section 5 of the Kansas Constitution Bill of Rights. We find that her right to a jury as guaranteed by the Sixth Amendment is unharmed. However, we agree the current structure of criminal restitution in Kansas violates section 5 of the Kansas Constitution Bill of Rights in part, but the offending part of that structure can be severed from the rest, which does not violate section 5. Specifically, insofar as the ordered restitution is given the effect of a civil judgment, it violates section 5. Otherwise, it does not.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Arnett with one count of conspiracy to commit burglary after she provided the car which her boyfriend used to burglarize two houses. The boyfriend paid Arnett $200 when he returned the car. Arnett pled guilty to that conspiracy charge. Arnett's plea did not include an agreement with the State to pay any amount of restitution.

The district court held a restitution hearing, during which the State explained that it was requesting $33,248.83 in restitution, payable to three individuals who incurred losses due to the burglaries. According to the State, Arnett took no issue with the amounts of restitution ordered for the victims' total losses, but argued she should only be responsible for the $200 she obtained for her part in the burglaries. The district court disagreed and ordered the full amount of $33,248.83, jointly and severally with Arnett's codefendants.

In Arnett's first appeal, a Court of Appeals panel held that the State failed to show a sufficient causal connection for restitution between Arnett's plea to and conviction for conspiracy to commit burglary and the financial loss to the victims. As a result, the panel never reached Arnett's alternative arguments. See State v. Arnett , No. 112,572, 2015 WL 6835244 (Kan. App. 2015) (unpublished opinion). This court reversed the panel, holding that restitution may be ordered against a defendant in a criminal case if the loss to the victim was proximately caused by the crime of conviction. State v. Arnett , 307 Kan. 648, Syl. ¶ 7, 413 P.3d 787 (2018). This court remanded the case to the Court of Appeals to consider the constitutional arguments raised by Arnett. That panel found Arnett's arguments unavailing and affirmed the district court's restitution order. State v. Arnett , No. 112,572, 2018 WL 2072804 (Kan. App. 2018) (unpublished opinion). Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

Arnett did not raise her constitutional issues before the district court. Generally, a constitutional issue not raised before the district court is considered abandoned. But this court can review issues presented on appeal where: "(1) the newly asserted theory involves only a question of law arising on proved or admitted facts ...; (2) consideration of the theory is necessary to serve the ends of justice or to prevent [a] denial of fundamental rights"; or (3) the district court's judgment is correct for the wrong reason. State v. Perkins , 310 Kan. 764, 768, 449 P.3d 756 (2019). But " ‘[t]he decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, [this court has] no obligation to do so.’ [Citations omitted.]" State v. Gray , 311 Kan. 164, 170, 459 P.3d 165 (2020).

The right to a jury trial is a fundamental right under both section 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Rizo , 304 Kan. 974, 979-80, 377 P.3d 419 (2016). We elect to reach both questions under the second exception.

ANALYSIS

Our analysis first looks at the statutes which make up the "restitution scheme" being challenged by Arnett. K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order the defendant to pay restitution as part of the sentence. The statute dictates that the restitution amount "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."

In the same way, K.S.A. 2017 Supp. 21-6607(c)(2) gives the district court the authority to order restitution payments as a condition of probation. Based on the clear language of the statutes, " ‘restitution for a victim's damages or loss depends on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages.’ [Citations omitted.]" State v. Alcala , 301 Kan. 832, 837, 348 P.3d 570 (2015).

Criminal restitution does not violate the Sixth Amendment to the United States Constitution.

Standard of review

Determining a statute's constitutionality is a question of law subject to unlimited review. State v. Soto , 299 Kan. 102, 121, 322 P.3d 334 (2014).

Discussion

We begin with Arnett's argument that the restitution statutes in question offend her right to a jury trial under the Sixth Amendment to the United States Constitution.

The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. The Supreme Court of the United States has established that this right to a jury covers any fact which increases the maximum penalty for a crime—other than a prior conviction—and such facts must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v. New Jersey , 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court further established that any facts which increase a mandatory minimum penalty must also be decided by a jury. See Alleyne v. United States , 570 U.S. 99, 102, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The reasoning is that when "a judge inflicts punishment that the jury's verdict alone does not allow," the judge has exceeded his authority. Blakely v. Washington , 542 U.S. 296, 304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Arnett is not the first defendant to make the argument that judicially ordered restitution violates Apprendi and its progeny, but most federal courts confronted with the question disagree. Largely, these courts have followed one of two analytical paths to conclude either that criminal restitution is not punishment or to find that restitution statutes do not specify a maximum award. See United States v. Bonner , 522 F.3d 804, 807 (7th Cir. 2008) (restitution is not a criminal punishment); see also United States v. Sawyer , 825 F.3d 287, 297 (6th Cir. 2016) (restitution is considered punishment but is not affected by Apprendi because statutes do not specify a statutory maximum). Sometimes the courts have taken a more hybrid approach. See United States v. Green , 722 F.3d 1146, 1150 (9th Cir. 2013) (restitution is only punishment in some contexts but is "not clearly" punishment covered by Apprendi ); United States v. Leahy , 438 F.3d 328, 338 (3d Cir. 2006) (Although restitution is criminal punishment, its essence is a restorative remedy that compensates victims and does not make a defendant's punishment more severe.).

As our own Court of Appeals has recently pointed out, at least 11 of 13 federal United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution, not to mention the many state courts which have followed suit. State v. Robison , 58 Kan. App. 2d 380, 389-90, 469 P.3d 83, rev. granted 312 Kan. 900 (2020). Following that lead, the Kansas Court of Appeals has also declared criminal restitution non-punishment for Sixth Amendment purposes. Robison , 58 Kan. App. 2d at 392, 469 P.3d 83 ; State v. Huff , 50 Kan. App. 2d 1094, 1100, 336 P.3d 897 (2014).

Outside the context of this question, this court has previously acknowledged that restitution serves many purposes separate from criminal punishment, including victim compensation, deterrence, and rehabilitation of the guilty. State v. Applegate , 266 Kan. 1072, 1075, 976 P.2d 936 (1999).

Despite the nonuniform approach taken by federal circuits, the Supreme Court has remained silent on whether criminal restitution triggers the right to a jury as contemplated in Apprendi , even when presented with opportunities to take up the question. See United States v. Green , 722 F.3d 1146 (9th Cir.), cert. denied 571 U.S. 1025, 134 S.Ct. 658, 187 L.Ed.2d 422 (2013) ; United States v. Day , 700 F.3d 713 (4th Cir. 2012), cert. denied 569 U.S. 959, 133 S.Ct. 2038, 185 L.Ed.2d 887 (2013).

The Supreme Court once again denied a petition for a writ of certiorari in a case that would have answered that question in Hester v. United States , ––– U.S. ––––, 139 S. Ct. 509, 202 L. Ed. 2d 627 (2019). But this time, Justice Gorsuch—joined by Justice Sotomayor—dissented from the denial of certiorari, arguing that under either analytical path, restitution is within reach of the Sixth Amendment's protections and should trigger the right to a jury trial. Hester , 139 S. Ct. at 511 (Gorsuch, J., dissenting).

Although this two-justice dissent might signal...