State v. Crowell

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NOT DESIGNATED FOR PUBLICATION
No. 116,841
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,
v.
SHAWN C. CROWELL,
Appellant. MEMORANDUM
OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed March 16,

2018. Affirmed.



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



Bryanna R. Hanschu, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek

Schmidt, attorney general, for appellee.



Before POWELL, P.J., GREEN, J., and HEBERT, S.J.



PER CURIAM: Shawn C. Crowell was convicted by a jury of aggravated battery.

At sentencing, he was ordered to pay restitution to the victim, James Jones, in the amount
of $202,551.52. Subsequent to the sentencing, Crowell filed a motion to reconsider
restitution based on a $100,000 settlement and release executed by the victim in a
companion civil action.


The district court ruled that although the amount of the settlement should be offset
against the restitution amount, Crowell remained liable for the balance of $102,551.52.
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Crowell appeals from that decision. We find no abuse of discretion nor any legal error by
the district court, and we affirm the judgment.


Factual and Procedural Background



Crowell's conviction of aggravated battery arose out of an altercation and high-
speed chase which ultimately resulted in Crowell's car hitting Jones' motorcycle, causing
extensive personal injuries which caused Jones to be hospitalized and undergo several
surgeries. The details of the altercation and chase and the aftermath are set forth in the
record and are well-known to the parties but are not essentially relevant to Crowell's
issues on appeal regarding restitution.


At the sentencing hearing on May 29, 2015, the victim spoke regarding the mental,
financial, and physical effects he suffers, including chronic pain, anxiety and depression,
problems with his memory, medical bills, upcoming surgeries, and lost wages. When
requesting restitution, the State told the court the following:


"As Mr. Jones mentioned, he has significant medical bills which I have copies of
them here. His—just the money that he owes to the hospital and to the doctors at KU
alone is $199,194. . . . In addition, he also has $660 for the tow and storage for his
motorcycle when it was injured—I'm sorry, when it was—after his injury. He has
$852.32 medical—I'm sorry—ambulance bill as well. In addition, he had a $67.02 bill for
a shoulder immobilizer or splint from his injury as well. And he had a bill for $1,330 and
then $488, and those were for occupational and physical therapy that he also had to pay
as a result of those injuries. So, Your Honor, we're asking for restitution for that amount
as well."


Crowell moved for a downward departure from the sentencing guidelines, arguing
substantial and compelling reasons supported his motion. Crowell also argued for
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probation or a shorter prison sentence, saying that if he were in prison for 10 or more
years it would be unlikely he could pay back the restitution from his prison funds.


Regarding restitution, Crowell's counsel said that she had not seen the bills but
"trust[ed] that they're accurate." The State offered to make copies of the bills, but
Crowell's counsel responded that they did not challenge the amount. Without an objection
by Crowell, the district court determined "[t]he KU Med Center bill as indicated by the
State, the towing and storage, the ambulance bill, the splint for the shoulder and then the
therapy are all direct and proximate results of the injuries so those will be ordered as
restitution." The total amounted to $202,551.52.


The district court did not find sufficient substantial and compelling reasons to
grant Crowell's motion for a departure. Taking into account the severity of the crime and
his criminal history score, the court sentenced Crowell to the standard sentence of 120
months' imprisonment, plus restitution.


After sentencing but prior to his appeal being docketed with this court, Crowell
filed a pro se motion to reconsider restitution. His motion indicated that he had reached a
settlement in a companion civil suit, resulting in a release.


Crowell attached the civil settlement notice letter and the release documents to his
pro se motion. The release stated, in part:


"FOR THE SOLE CONSIDERATION of One Hundred Thousand and 00/100

Dollars ($100,000.00), the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby releases and forever discharges Shawn C. Crowell . . . from any and
all claims, demands, damages, actions, causes of action, or suits of any kind or nature
whatsoever, and particularly on account of all damages, costs or expenses which have
resulted or may in the future develop from a vehicular accident which occurred on or
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about the 10th day of June, 2013 on Hagemann Street at or near its intersection with 36th

Street in Kansas City, Kansas."



Crowell's appellate attorney also requested that the district court consider the issue
of restitution before his appeal was filed, and the district court held a hearing on this
issue.



At issue before the district court was whether the settlement in the civil action
released Crowell from restitution in his criminal case or whether the total amount of
criminal restitution should be offset against the civil settlement. The State argued that
based on State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); K.S.A. 60-4304; and
the fact that the State was not a party to the civil suit, the district court should credit the
$100,000 civil settlement against the entire restitution award. Crowell responded that the
victim was aware of his damages when he accepted the $100,000 settlement, and the
settlement released the parties from further financial obligations. The court
acknowledged that "it sure appears from this release that the victim in the case has said
that he understands that $100,000 is all he's going to receive." However, it held that
K.S.A. 60-4304 and Applegate guided its decision in using the $100,000 civil settlement
to reduce the restitution amount to $102,551.52. Crowell timely appealed.


Standard of Review



Appellate review of an order directing a criminal defendant to pay restitution can
involve three standards of review. If the issue concerns the amount of restitution and the
manner in which it is made to the aggrieved party, it is reviewed under the abuse of
discretion standard. The trial court's factual finding of the causal link between the crime
committed and the victim's loss will be affirmed if those findings are supported by
substantial competent evidence. Finally, appellate court review of legal questions
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involving the interpretation of underlying statutes is subject to unlimited review. State v.
Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016).


Whether the district court erred in the amount of restitution it ordered is reviewed
for an abuse of discretion. A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the trial court; (2) the action is based
on an error of law; or (3) the action is based on an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015).



Whether a release of claims in a civil settlement precludes a restitution order in a
criminal action is a question of law. An appellate court's review of questions of law is
unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).


The Workability of the Restitution Order



First, Crowell argues that the case should be remanded because the district court
failed to find the restitution plan unworkable. However, his claim that the district court
abused its discretion in this way is unconvincing. A sentencing judge has considerable
discretion in determining the appropriate amount of restitution. State v. Hunziker, 274
Kan. 655, 659-60, 56 P.3d 202 (2002). State statute also says: "In addition to or in lieu of
any of the above, the court shall order the defendant to pay restitution, which 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 unworkable." K.S.A.
2017 Supp. 21-6604(b)(1). Crowell had the burden to show evidence of compelling
circumstances resulting in an unworkable restitution plan. Shank, 304 Kan. at 94. The
district court has no obligation to independently make findings regarding the plan's
workability. See State v. King, 288 Kan. 333, 356-57, 204 P.3d 585 (2009).
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Here, Crowell argues that the district court did not consider whether the payment
of "the extraordinary amount of $205,000 was workable as the statute requires." Again,
though, the burden is on Crowell to show the restitution plan is unworkable. The only
time Crowell's ability to pay restitution was brought up by the defense at the sentencing
hearing was when the defense moved for a downward departure from the sentencing
guidelines. The focus at that time was the potential length of his sentence, not the amount
of restitution. There was no other mention of the restitution plan being unworkable, nor
did the defense question or object to the amount of Jones' medical and other financial
obligations.


Ordinarily, this court does not consider issues on appeal which were not presented
to or ruled on by the district court. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987
(2014); Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34). Even if Crowell
obliquely raised the issue of unworkability at sentencing, his sole argument centered
around his limited earning potential during his prison sentence. However, "imprisonment
alone is not sufficient to render restitution unworkable." State v. Alcala, 301 Kan. 832,
840, 348 P.3d 570 (2015); Shank, 304 Kan. at 95-96. Instead, an individual must show
extraordinary circumstances prevent him or her from paying restitution after the
incarceration period is over. See Alcala, 301 Kan. at 840. Crowell did not establish that
anything contributed to the alleged unworkability of the amount of restitution except for
his limited earnings while in prison. In fact, his attorney specifically said that Crowell
would be employed upon his release. Therefore, even if unworkability was raised at
sentencing, Crowell would still fail to meet his burden based on the arguments he
presented to this court. The district court did not abuse its discretion in determining the
amount of restitution because Crowell failed to meet his burden to demonstrate that the
restitution amount was unworkable.
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The Effect of the Civil Release



Second, Crowell argues that the civil release settlement satisfies the entirety of his
restitution. He relies on Applegate to argue this court should find the $100,000 from the
civil settlement releases him of the rest of the restitution amount because the civil
settlement represents the entirety of the damages. However, this argument is inaccurate
because it ignores the fact the district court determined the appropriate amount of
damages was reflected in the original restitution order of $202,551.52.


Although K.S.A. 60-4304(b) instructs courts to credit the amount of restitution
against a civil award, it does not address whether a civil damage award may or must be
credited against restitution ordered in a criminal proceeding. However, Applegate tells us
that the sentencing court is not prohibited from ordering restitution when the victim is
also compensated in a civil case.


In Applegate, the defendant pled guilty to two counts of involuntary manslaughter
and one count of aggravated battery after driving while under the influence of alcohol,
crashing his car, and killing two of his passengers. He was sentenced and ordered to pay
restitution, and the hearing to set the amount of restitution was set for a later date.
Between the time he was sentenced and the restitution hearing, the defendant entered into
a civil settlement of $100,000. The agreement released him from all claims and damages
going forward, and the Kansas Supreme Court was left to decide what effect the civil
settlement had on restitution from his criminal case. It held that restitution and civil
damages are "separate and independent remedies" to be considered. 266 Kan. at 1078.


It is important to note the court in Applegate did not order additional restitution
above the $100,000 settlement amount because it found the civil settlement amount
satisfied all claims arising from the incident, leaving no need for further criminal
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restitution. The court further clarified that it was not precluded from ordering an
additional restitution amount if necessary to fully account for the victim's damages.


"The judge's order of restitution in a criminal action does not bar a victim from
seeking damages in a separate civil action. Likewise, the judge, when sentencing a
defendant in a criminal action, is not foreclosed from ordering restitution just because the
victim has received compensation in a civil action." 266 Kan. at 1079.


Following the logic from the Kansas Supreme Court in Applegate, the district
court was not prohibited from ordering restitution beyond the civil settlement. The
Applegate court did not order more restitution because it found that the civil settlement
fully compensated the plaintiffs for their damages. Here, though, the civil settlement
amount of $100,000 did not compensate Jones for all of his damages, which the district
court previously determined totaled $202,551.52. That amount came from medical bills
and other financial obligations that were directly and proximately caused by the accident.
The court, with its wide discretion in ordering restitution, was correct in determining
restitution was still warranted in the criminal case. The district court correctly offset the
total damage amount by the amount the victim received from the civil settlement, leaving
$102,551.52 left in restitution in the criminal case.



Conclusion



The district court did not abuse its discretion in initially awarding restitution in the
amount of $202,551.52. It also correctly used the civil settlement award of $100,000 to
offset the amount owed in the criminal case, leaving $102,551.52 in criminal restitution.
We affirm the district court's restitution order.


Affirmed.