State v. Anaya

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NOT DESIGNATED FOR PUBLICATION

No. 112,761

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BENJAMIN ANAYA,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed November
25, 2015. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Jason E. Geier, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

Per Curiam: On appeal, Benjamin Anaya challenges the district court's order
imposing restitution without the benefit of a jury's determination of the amount. We find
Anaya agreed to pay "verifiable restitution" as a condition of his plea agreement. After a
hearing, the district court determined the amount of restitution to be paid. Anaya does not
challenge the amount on appeal. Rather, he claims the amount had to be determined by a
jury trial pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed
2d 435 (2000). Anaya failed to raise this issue before the district court or to explain why
it should be considered for the first time on appeal. We affirm.
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FACTS

Anaya was charged with one count of first-degree murder and one count of
conspiracy to commit first-degree murder. Pursuant to plea negotiations, in exchange for
the dismissal of all other charges, Anaya agreed to plead guilty to one count of
conspiracy to commit first-degree murder and to pay verifiable restitution. The factual
basis provided and the district court's finding of guilt is not an issue on appeal. The
district court accepted Anaya's plea and found him guilty of conspiracy to commit murder
in the first degree.

At the sentencing hearing, the State asked for $43,230.77 in restitution:
$17,717.22 for funeral expenses, $18,107 for child in need of care (CINC) attorney fees,
$3,000 for adoption attorney fees, and $4,406.55 for probate attorney fees. Anaya was
furnished the details of the State's request for restitution on the day of the sentencing
hearing. Anaya objected to the amount of restitution as not being verified. The district
court agreed to hold the restitution issue open for 30 days in order for Anaya to review
the restitution requested and to submit any objections.

On June 19, 2014, the district court conducted an evidentiary hearing on
restitution. At the hearing, Anaya claimed the $43,230.07 requested for restitution was
unreasonable. Anaya agreed the $17,717.22 in funeral expenses was reasonable but
disagreed with the CINC, adoption, and probate attorney fees. Additionally, Anaya
testified he had no source of funds from which to pay restitution. Following testimony
from James Willard, the attorney for the victim's mother, the State asked the district court
to mirror Anaya's restitution to the restitution previously awarded against his two co-
defendants in the amount of $43,230.77. The district court permitted Anaya to submit his
argument on restitution in writing. Anaya argued: (1) Willard's CINC, adoption, and
probate attorney fees for Ashley's estate were unreasonable; (2) any restitution awarded
for attorney fees would constitute a windfall to the victim's mother because donations had
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been used to pay the legal fees at issue for the adoption; and (3) it did not make sense to
require Anaya to pay $43,230.77 when one of his codefendant's was only required to pay
$40,486.47. Anaya's brief to the district court contained no mention of Apprendi, 530
U.S. 466.

On July 15, 2014, the district court filed its order requiring Anaya to pay
$32,639.22 in restitution. On July 16, 2014, Anaya filed a supplemental argument
specifically raising Apprendi's application to the determination of his restitution. On July
18, 2014, without explanation, Anaya voluntarily withdrew his supplemental argument
regarding Apprendi and restitution. Thus, the district court never had an opportunity to
consider the argument. Anaya failed to inform this court he voluntarily withdrew his
Apprendi argument at the district court level.

Anaya timely filed a notice of appeal, specifically appealing the district court's
July 15, 2014, restitution order.

ANALYSIS

Anaya's Apprendi argument was not preserved for appeal.

A defendant may appeal as a matter of right from any judgment against the
defendant in the district court and "upon appeal any decision of the district court or
intermediate order made in the progress of the case may be reviewed." K.S.A. 2014 Supp.
22-3602(a). This court's jurisdiction is limited to final judgments. To be final, a defendant
must be convicted and sentenced or the imposition of sentence must be suspended. State
v. Howard, 44 Kan. App. 2d 508, 511, 238 P.3d 752 (2010). A sentence includes
restitution, meaning that a defendant is not sentenced unless and until the restitution order
is entered. See State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011). Anaya's
sentence was final when the restitution order was entered on July 15, 2014.
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On appeal, Anaya argues the district court erred by not providing him a jury trial
to determine the amount of restitution in violation of Apprendi, as raised in his
supplemental argument to the district court. Whether the district court violated Anaya's
constitutional rights by ordering restitution without a jury determination is a question of
law over which this court exercises unlimited review. See State v. Tyler, 286 Kan. 1087,
1095-96, 191 P.3d 306 (2008); State v. Huff, 50 Kan. App. 2d 1094, 1096-97, 336 P.3d
897 (2014), rev. denied 302 Kan. ___ (August 4, 2015). Issues not raised before the trial
court cannot be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
Generally, constitutional grounds for reversal asserted for the first time on appeal are not
properly before the appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043,
350 P.3d 1068 (2015).

On appeal, Anaya states:

"It is Mr. Anaya's claim here that a jury should have heard the evidence, not the Court, as
a result of the Apprendi decision. Mr. Anaya raised the applicability of Apprendi by filing
a supplemental argument which raised the point. . . . The Court seemingly ignored Mr.
Anaya's argument regarding his Apprendi argument because the journal entry of
judgment, filed after Mr. Anaya's supplemental argument, still set the restitution at
$32,639.22 . . . The exact figure determined by the Court in its Memorandum and Order."

These statements are misleading. According to the record on appeal, the district
court filed the restitution order on July 15, 2014. Anaya filed his supplemental argument
regarding Apprendi on July 16, 2014. Not only did Anaya file his supplemental argument
after the district court's restitution order was entered, Anaya voluntarily withdrew his
supplemental argument 2 days later on July 18, 2014. Anaya failed to inform this court in
his brief that he voluntarily withdrew his supplemental argument and actually contends
we should consider his Apprendi argument on appeal as if it was properly raised before
the district court. Additionally, we note Anaya could have corrected this error by filing of
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a reply brief when the State raised the issue in its brief that Anaya withdrew his Apprendi
argument before the district court.

Because Anaya filed his supplemental argument after the district court filed its
restitution order and then voluntarily withdrew it, his Apprendi argument was not raised
below and thus his claim has not been preserved for appeal.

There are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, including the following: (1) The newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent a denial of fundamental rights; and (3) the judgment of the trial court
may be upheld on appeal despite its reliance on the wrong ground or having assigned a
wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
However, even if Anaya's claim met one of the exceptions, Supreme Court Rule
6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that
was not raised below should be considered for the first time on appeal. Litigants who fail
to comply with this rule risk a ruling that the issue is improperly briefed and will be
deemed waived or abandoned. Godfrey, 301 Kan. at 1044 (Rule 6.02[a][5] will
henceforth be strictly enforced); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528
(2014) (cautioning future litigants to comply with the rule). Anaya fails to explain why
this court should consider the issue. His Apprendi argument was not preserved or
properly briefed on appeal and is deemed waived or abandoned.

Anaya agreed to pay verified restitution.

Additionally, in Anaya's plea he agreed to pay verifiable restitution. At his
sentencing hearing, Anaya objected to the amount of restitution proposed by the State;
however, he did not object to the district court determining what constituted verifiable
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restitution. The district court held an evidentiary hearing to determine the amount of
restitution and at no point did Anaya ask for a jury trial to determine what constituted
verifiable restitution. Additionally, in Anaya's application to modify his plea to guilty, the
document stated: "I understand and agree that I will be ordered to pay verifiable
restitution, even on counts dismissed as part of this plea agreement." In exchange for
Anaya's guilty plea to Count 2, conspiracy to commit murder in the first degree, the State
agreed to dismiss Count 1, murder in the first degree.

In State v. Ball, 255 Kan. 694, 701, 877 P.2d 955 (1994), the Kansas Supreme
Court held that when the defendant is actually charged with several counts and agrees to
pay restitution for each of the charged offenses in exchange for the State's agreement to
dismiss some of the charges, the sentencing court still has authority to enter that agreed-
upon restitution award.

Based upon the plea agreement, the district court had authority to order restitution
as it determined was verifiable.

Affirmed.