State v. Harkins

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NOT DESIGNATED FOR PUBLICATION

No. 108,614

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARY M. HARKINS,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed September 18,
2015. Affirmed in part and vacated in part.

Caroline Zuschek and Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for
appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., GARDNER, J., and WALKER, S.J.

Per Curiam: Pursuant to a plea agreement with the State, Mary M. Harkins pled
guilty to aggravated battery and abuse of a child. She agreed "to pay all medical expenses
for [the child] resulting from this offense . . . notwithstanding the lack of a formal
'restitution order' in this case as the nature of care and recovery may be ongoing." The
plea agreement also contained a provision allowing the State to recommend that the court
order her to register as an offender under the Kansas Offender Registration Act (KORA)
for 10 years, and Harkins was free to argue against this recommendation.

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Harkins moved for probation and the State concurred, but the district court denied
the motion and sentenced Harkins to 60 months' imprisonment on the aggravated battery
conviction and a concurrent 32 months' imprisonment on the abuse of a child conviction.
The court ordered Harkins to register as an offender under KORA for a period of 10 years
pursuant to K.S.A. 2011 Supp. 22-4902(a)(5), for "[a]n offense not otherwise required."
The State sought $17,540.65 in restitution on behalf of CoventryCares of Kansas for the
amount it paid for the child's medical treatment required for the injuries sustained in the
aggravated battery. Harkins agreed to the amount of restitution. The court ordered her to
pay $17,540.65 to CoventryCares. Harkins appeals.

KORA

Harkins argues that the district court did not have the authority to order her to
register under KORA and that the "catch-all" portions of KORA relied on by the district
court only allowed the district court to require registration for offenses that do not fall
under other provisions of KORA if made as part of a probation order. She states that no
other provision of KORA requires registration for her offenses of conviction. The State
concedes this point on appeal.

Harkins acknowledges that she did not raise this issue before the district court, but
she argues, and the State concedes, that the issue involves only a question of law arising
on proven or admitted facts and is finally determinative of the case. State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014). Accordingly, we will consider the issue using the
standards expressed in Phillips; State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528
(2014); and State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).

The court must apply the version of KORA in effect at the time of sentencing.
State v. Orange, No. 108,806, 2014 WL 37688, at *10 (Kan. App.) (unpublished
opinion), rev. denied 300 Kan. 1106 (2014). Here, the statute as amended in 2012 applies.
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Aggravated battery and abuse of a child are not included in any of the specific
provisions requiring registration under KORA. K S.A. 2012 Supp. 22-4902(a)(5), the
"catch-all" provision relied on by the district court, defines an offender to include "any
person required by court order to register for an offense not otherwise required as
provided in the Kansas offender registration act." (Emphasis added.) The only provision
of KORA that references K.S.A. 22-4902(a)(5) is K.S.A. 2012 Supp. 22-4906(i), which
states:

"Notwithstanding any other provision of law, if a diversionary agreement or
probation order, either adult or juvenile, or a juvenile offender sentencing order, requires
registration under the Kansas offender registration act for an offense that would not
otherwise require registration as provided in subsection (a)(5) of K.S.A. 22-4902, and
amendments thereto, then all provisions of the Kansas offender registration act shall
apply, except that the duration of registration shall be controlled by such diversionary
agreement, probation order or juvenile offender sentencing order." (Emphasis added.)

This provision applies only when the court has ordered registration as part of a diversion
agreement, probation order, or juvenile offender sentencing. Harkins was denied
probation, so this provision did not apply. Thus, the district court was without authority
to order registration under KORA, and the registration order is vacated.

Restitution

Harkins argues that the district court erred in ordering her to pay restitution to
CoventryCares for reimbursement of the child's medical expenses. She contends that
"insurance companies do not experience actual loss, and . . . the insurance company was
not the actual victim of her crime." Our review of this issue is unlimited. State v. Looney,
299 Kan. 903, 906, 327 P.3d 425 (2014).


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K.S.A. 2011 Supp. 21-6604(b)(1) states:

"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 of restitution unworkable." (Emphasis added.)

State v. Hand, 45 Kan. App. 2d 898, 257 P.3d 780 (2011), rev'd on other grounds
297 Kan. 734 (2013), and State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), examined the
statutory provision which authorizes the district court to order restitution as a condition of
probation. The statute requires the district court to order "reparation or restitution to the
aggrieved party for the damage or loss caused by the defendant's crime." (Emphasis
added.) K.S.A. 2012 Supp. 21-6607(c)(2). In Hand, which cites to Yost, the court stated
that an insurance company becomes a "secondary 'aggrieved party' in an amount tied to
what the company has paid out under the victim's policy for the claimed loss." Hand, 45
Kan. App. 2d at 904.

Harkins argues that K.S.A. 2011 Supp. 21-6604(b)(1) only authorizes restitution to
the victim and makes no mention of restitution to an "aggrieved party" as allowed under
K.S.A. 2011 Supp. 21-6607(c)(2). But the "aggrieved party" language in K.S.A. 2011
Supp. 21-6607(c)(2) only applies when the court orders restitution as a condition of
probation. Harkins was denied probation. K.S.A. 2011 Supp. 21-6604(b)(1) is the statute
that applies to any person found guilty of a crime and it contains no reference to an
"aggrieved party." Contrary to Harkins' assertion, nothing in K.S.A. 2011 Supp. 21-
6604(b)(1) limits or otherwise defines for whom such restitution may be ordered.
Causation is the controlling factor in this statute.

Harkins does not dispute the fact that she agreed to make reimbursement for the
child's medical expenses, nor does she dispute that CoventryCares paid $17,540.65 for
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these expenses. Had Harkins not committed this crime, CoventryCares would not have
paid these necessary expenses caused by Harkins' criminal conduct. We find no merit in
Harkins' argument. Under the statute, CoventryCares was entitled to reimbursement. The
district court did not err in its restitution order.

Apprendi

Harkins argues that her sentence violates the Sixth and Fourteenth Amendments of
the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), because the State did not include her prior
convictions in its charging document and did not prove those convictions to a jury before
the district court used those convictions to increase her sentence.

In State v. Ivory, 273 Kan. 44, 45-46, 41 P.3d 781 (2002), our Supreme Court
rejected the argument Harkins makes here. We are duty bound to follow Kansas Supreme
Court precedent absent some indication the court is departing from its previous position.
State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan.
946 (2012). Because the Kansas Supreme Court has repeatedly declined to reconsider this
point of law, we have no reason to believe that the court is departing from its holding in
Ivory. See State v. Castleberry, 301 Kan. 170, 191, 339 P.3d 795 (2014); State v. Brown,
300 Kan. 565, 590, 331 P.3d 797 (2014). Accordingly, this contention fails.

Affirmed in part and vacated in part.