State v. Dailey

497 P.3d 1153

STATE of Kansas, Appellee,

v.Jeremy L. DAILEY, Appellant.

No. 120,845

Supreme Court of Kansas.

Opinion filed November 5, 2021.

James M. Latta, of Kansas Appellate Defender Office, was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

The district court ordered Jeremy L. Dailey to pay $17,278.92 in restitution. The Court of Appeals ruled that substantial competent evidence did not support the restitution amount and remanded the case to the district court for a new hearing. We affirm the panel's decision to remand the case but hold that on remand, the district court is to consider only the arguments and evidence already offered in rendering a new restitution award.

FACTUAL AND PROCEDURAL HISTORY

On November 20, 2017, James Erhart, the property manager at Wichita Greyhound Park, observed that someone had damaged the park buildings and removed coils from the air conditioning units. Law enforcement was notified, and Dailey was located on the property in possession of some of the coils.

The State charged Dailey with criminal trespass and theft for "unlawfully obtain[ing] or exert[ing] unauthorized control over property or services, to-wit: Air conditioning coils ... of the value of at least $1,500.00 but less than $25,000.00." Dailey pleaded guilty to both charges. At the plea hearing, he clarified that he was pleading guilty only to taking coils that had already been removed from the buildings and set by a fence. The district court agreed and accepted his plea.

The State requested $25,000 in restitution. At the restitution hearing, Erhart testified that this was the amount of the deductible paid to the insurance company to replace all the air conditioning coils and repair the damage from their removal. In a line of questioning, the State told Erhart that Dailey had been found in possession of "four air-conditioning coils and four A-frame coils" and asked Erhart what the cost would be to replace and reinstall these coils. Erhart testified it would be $23,425.04.

Dailey contested the restitution amount. He argued he had been convicted only for removing the coils from the fence, and, consequently, could not be ordered to pay restitution for the damages resulting from the removal of the coils from the buildings.

The district court ordered Dailey to pay $17,278.92 in restitution. It explained that it based this number on the cost of four AC-condenser coils and four A-frame coils.

Dailey appealed the restitution amount, arguing that the evidence did not support the State's assertion that he stole eight coils. In fact, he argued, the evidence from the restitution hearing was insufficient to permit the district court to make any factual findings about how many or what kind of coils he had taken. Consequently, Dailey asked the panel to vacate the order and remand to the district court with instructions to impose a restitution order for $1,500.00—the minimum amount of damage supported by his guilty plea.

The State conceded that the order should be vacated because the evidence from the restitution hearing did not support the amount of the order. But it asked the panel to remand the case for a new evidentiary hearing.

The panel concluded the order was not supported by substantial competent evidence. It vacated the order and, siding with the State, remanded the case "for an additional hearing to establish the factual predicates for a lawful restitution order." State v. Dailey , No. 120,845, 2020 WL 1074687, at *5 (Kan. App. 2020) (unpublished opinion). Dailey petitioned for this court's review.

ANALYSIS

The parties in this case agree there was not substantial competent evidence to support the district court's restitution order and that the panel was therefore correct to vacate the order. They disagree on the proper remedy after an appellate court makes this conclusion. The panel remanded the case for a new evidentiary hearing and the State maintains this was the correct...