State v. Long

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,594

STATE OF KANSAS,
Appellee,

v.

ROY L. LONG, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
While K.S.A. 2011 Supp. 22-3424(d) clearly states that a court "shall" hold a
hearing to establish restitution before imposing sentence, that language is limited to
situations in which the crime victim or the victim's family has requested restitution.

2.
The provision in K.S.A. 2011 Supp. 22-3424(d) requiring that "the court shall hold
a hearing to establish restitution" is directory, not mandatory.

3.
Under the facts of this case, as permitted by K.S.A. 2011 Supp. 22-3424(d), the
defendant waived the right to a restitution hearing and accepted the amount of restitution
as established by the court when the defendant failed to object to the district court's
continuance of the restitution determination and failed to request a restitution hearing,
which was specifically offered by the district court.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed July 27, 2012.
Affirmed in part and dismissed in part.
2




Rachel L. Pickering, of Kansas Appellate Defender Office, was on the briefs for appellant.

David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: Roy L. Long, Jr., appeals his sentence, arguing the sentencing court
erred in including lifetime electronic monitoring in the journal entry of judgment. We
dismiss this issue as moot because, as Long concedes, this error was corrected in an
amended journal entry of judgment.

Long also argues that once the sentencing court pronounced sentence, it lacked
jurisdiction to order restitution. Further, he contends the sentencing court erred in
ordering restitution without securing his presence at a restitution hearing. We reject both
of these arguments and affirm the district court's restitution order.

Long pleaded guilty to two counts of aggravated indecent liberties with a child and
was sentenced to life imprisonment with a mandatory minimum term of 25 years on each
count to run concurrently. The court did not order restitution at sentencing, but instead
noted the file indicated the victim's parents had made one $90 payment for counseling for
the victim. The court indicated it would leave the issue of restitution open for 30 days to
allow the prosecutor to check with the victim's parents regarding restitution. Further, the
court directed that the parties discuss restitution "and if you can't agree upon it, we can
set it for hearing."

Long neither objected to the court's decision to leave restitution open nor
requested a hearing. Within 10 days after sentencing, Long filed this direct appeal.
3




After Long filed his notice of appeal, the district court entered an order
establishing restitution in the amount of $90. The order indicated there were no
appearances and it was signed and "approved by" both the prosecutor and Long's counsel.

Preliminarily, the State suggests Long's notice of appeal failed to indicate he was
appealing from the court's order of restitution and consequently this court lacks
jurisdiction over the restitution issues. See State v. Huff, 278 Kan. 214, 217, 92 P.3d 604
(2004) (appellate court obtains jurisdiction only over rulings identified in the notice of
appeal). But we conclude Long's notice of appeal, which stated "his intention to appeal
the sentence and all adverse rulings," was sufficiently broad to include Long's restitution
issues. See K.S.A. 22-3606; K.S.A. 60-2103(b); State v. Boyd, 268 Kan. 600, 604-08, 999
P.2d 265 (2000).

Proceeding to the merits, Long first contends the plain language of K.S.A. 2011
Supp. 22-3424(d) requires that restitution be ordered before imposition of sentence. That
statute provides: "If the verdict or finding is guilty, upon request of the victim or the
victim's family and before imposing sentence, the court shall hold a hearing to establish
restitution." (Emphasis added.) Long argues that because the district court in this case
imposed sentence before imposing restitution, the district court lacked jurisdiction to
impose restitution.

But we rejected this argument in State v. McDaniel, 292 Kan. 443, 254 P.3d 534
(2011), an opinion filed after Long filed his appeal brief in this case. In McDaniel, we
held that while K.S.A. 2011 Supp. 22-3424(d) "clearly states that a court 'shall' hold a
hearing to establish restitution before imposing sentence," that language is limited to
situations in which the crime victim or the victim's family has requested restitution. 292
Kan. at 446.
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Further, in McDaniel we rejected the defendant's argument that the district court's
failure to establish restitution before sentencing deprived the court of jurisdiction.
Instead, we reasoned that the district court's order establishing restitution merely
completed the sentence it had earlier imposed. See 292 Kan. at 448. Similarly, in this
case, the restitution order, which was agreed to and signed by defense counsel, did not
modify Long's sentence, but completed it. See 292 Kan. at 447-48.

Long points out that in McDaniel, neither the victim nor the victim's family
requested restitution. But here, because the victim's parents requested restitution, Long
argues K.S.A. 2011 Supp. 22-3424(d) mandated that the district court conduct a
restitution hearing before sentencing. However, in McDaniel we concluded that even
when the victim or the victim's family has requested a hearing, the language of K.S.A.
2011 Supp. 22-3424(d) providing that the "court 'shall' hold a hearing to establish
restitution" is directory, not mandatory. 292 Kan. at 446-47.

In a related argument, Long argues the district court violated his constitutional
right to be present at sentencing, a critical stage in his criminal proceeding, by imposing
restitution without securing his presence. But Long's argument ignores the provision in
K.S.A. 2011 Supp. 22-3424(d) permitting a defendant to "waive the right to the hearing
and accept the amount of restitution as established by the court."

Clearly, in this case, Long waived his right to a hearing by failing to object to the
district court's postponement of the restitution determination and by failing to request a
restitution hearing, which was specifically offered by the district court.

Affirmed in part and dismissed in part.