State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 119,470

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOSEPH PAUL JONES JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed June 21, 2019. Vacated
in part and remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., STANDRIDGE, J., and NEIL B. FOTH, District Judge, assigned.

PER CURIAM: It is not often that the parties agree on the essential matter in a case
on appeal. This is one of those cases. In an appeal of a restitution order, both parties agree
that part of the restitution ordered should have been paid to the insurance company rather
than to the victim of the crime. We vacate in part and remand for the district court to
correct its restitution order.

Joseph Paul Jones Jr. was originally charged with 13 counts of burglary, 4 counts
of felony theft, 5 counts of felony criminal damage to property, 8 counts of misdemeanor
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theft, and 9 counts of misdemeanor criminal damage to property. In the end, he pled no
contest to one count of burglary in exchange for a dismissal of the other charges. As part
of the plea agreement, he agreed to pay restitution on all charges except for two counts of
the misdemeanor criminal damage to property. The court sentenced Jones to 34 months in
prison. The court ordered Jones to pay a total of $12,279.46 in restitution, including
$4,349.48 to K.C. Crist, the owner of Air Condition Specialists.

Crist testified he owned the building that was broken into. Several entryways in
his building had been damaged upon forcible entry and had to be repaired or replaced,
desks had been damaged and had to be replaced, and the wires had been cut to his
ValuNet and Cable One services. Crist testified he had insurance through Shelter
Insurance. Shelter paid Crist $2,974.48 on the claim. Crist's deductible was $1,000. Crist
testified he did some of the repairs himself. He spent about five hours on the repairs—
time that he was unable to work for his business. His hourly residential rate was $75/hour
and commercial rate was $110/hour.

Jones objected to the testimony regarding the amount Shelter paid on the claim.
He argued that if Shelter was going to make a claim for restitution, then it needed to
appear at the hearing. The court overruled the objection. The court ruled:

"Kansas law establishes that where there is some damage, as indicated here, that the
damage and restitution that can be awarded by a court, not only can be awarded
restitution to the actual victim, him or herself, but also for the insurance that has been
paid to that victim, so what this Court is mainly concerned with is the fair market value of
the actual loss suffered by the party who was damaged."





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The details of the court's award to Crist are reflected in this chart:

Time making repairs $75/hour x 5 hours $375.00
Claim paid by insurance $2,974.48 $2,974.48
Insurance deductible $1,000 $1,000.00
Total = $4,349.48


Jones argues that Crist should not be unjustly enriched by $2,974.48 because
Shelter already reimbursed him for that amount. He asks the court to vacate that part of
the restitution order. Jones admits that Shelter was a secondarily aggrieved party and
"had the district court ordered that Mr. Jones pay that money directly to Shelter Insurance
rather than to Mr. Crist, then there would likely be no argument about this portion of the
restitution order." The State argues that "[t]he insurance company should not be expected
to pay part of the damages caused by the defendant without compensation." The State
admits:

"The only error in this case appears to be in the restitution order that was filed after the
hearing, it should have included a payment to Mr. Crist and a payment to the insurance
company. The district court noted that the restitution owed in Mr. Crist's case included
$2,974.48 paid by the insurance company and to properly reflect the district court's order
that should have been in the restitution ordered."

Under Kansas law, the sentencing court "shall order the defendant to pay
restitution." Restitution "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." K.S.A. 2018 Supp. 21-6604(b)(1). The appropriate
measure of restitution is the amount that reimburses the victim for the actual loss
suffered. State v. Hall, 297 Kan. 709, 712, 304 P.3d 677 (2013). This court reviews for
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abuse of discretion in the sentencing court's decision concerning the amount of restitution
and the manner in which it is made to the aggrieved party. State v. Shank, 304 Kan. 89,
93, 369 P.3d 322 (2016).

The sentencing court may order the defendant to pay restitution to a secondarily
aggrieved party—a party who compensated the original aggrieved party—such as an
insurance company that paid losses under a crime victim's policy. See State v. Beechum,
251 Kan. 194, 203, 833 P.2d 988 (1992); State v. Jones, No. 106,750, 2012 WL 4121119,
at *3 (Kan. App. 2012) (unpublished opinion). Courts typically order restitution to the
insurance carrier for the extent of the loss it paid and to the crime victim for the
deductible amount or any losses not covered by the policy. The insurance carrier need not
request restitution or appear at the hearing. 2012 WL 4121119, at *3-4.

Jones' only objection to a restitution award for the insurance payout concerned
Shelter's failure to appear at the hearing. But he points to no Kansas law that requires
such an appearance by the insurance company. And a panel of this court has ruled
otherwise. See Jones, 2012 WL 4121119, at *4.

Because both parties agree that the sentencing court's only error was ordering the
$2,974.48 payment be made to Crist rather than Shelter, we vacate that portion of the
district court's order. We remand for the district court to modify its order and direct the
payment to Shelter instead of Crist. The total amount of restitution that Jones must pay is
unaffected by this decision.

Vacated in part and remanded with directions.