State v. Monzon

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NOT DESIGNATED FOR PUBLICATION

No. 117,335

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN MONZON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed March 30, 2018.
Affirmed.

Christina M. Kerls, 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 ARNOLD-BURGER, C.J., MALONE and MCANANY, JJ.

PER CURIAM: Brian Monzon pled guilty to a residential burglary which involved
Monzon and one of his codefendants breaking a window to gain entry into the house and
damaging furnishings after gaining entry. The district court ultimately sentenced Monzon
to 24 months' probation with an underlying prison term of 15 months based on a criminal
history that included Monzon's prior juvenile adjudications. The court conditioned
probation on Monzon paying restitution.

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The State requested for restitution that Monzon be held jointly and severally liable
for the homeowner's lost wages in the amount of $158.76, the homeowner's $1,000
insurance deductible, $100 for damage to a file cabinet, and $6,020.22 paid by the
homeowner's insurer for the loss.

Monzon agreed to pay the homeowner's $1,000 insurance deductible but objected
to being required to pay the $6,020.22 paid by the homeowner's insurer and $100 for the
damaged file cabinet. He also objected to being required to pay $158.76 for the
homeowner's lost wages incurred during the processing of the insurance claim. The court
ordered Monzon to pay the $1,000 policy deductible, $100 for the file cabinet, $2,006.74
of the insurer's payment under the homeowner's policy, and $158.76 for the homeowner's
lost wages.

Monzon appeals the order requiring him to pay restitution in the amount of
$158.76 for the homeowner's lost wages. He also claims that his sentence is illegal.

With regard to the restitution order, Monzon claims that the homeowner did not
experience any lost wages because he took vacation time and, therefore, was already
compensated for his lost time.

We review this claim for any abuse of discretion by the sentencing court. State v.
Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016). A district court abuses its discretion if (1)
no reasonable person would take the view adopted by the district court; (2) the decision is
based on an error of law; or (3) the decision is based on an error of fact. The party
asserting the district court abused its discretion bears the burden of showing such abuse.
304 Kan. at 92, 93-94.

K.S.A. 2017 Supp. 21-6607(c)(2) provides that "[t]he court shall order the
defendant . . . to make reparation or restitution to the aggrieved party for the damage or
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loss caused by the defendant's crime, in an amount and manner determined by the court
and to the person specified by the court." "The measure of reparation or restitution to be
ordered . . . is the amount that reimburses the victim for the actual loss suffered." State v.
Applegate, 266 Kan. 1072, 1079, 976 P.2d 936 (1999). Actual losses may include loss of
income. State v. Beechum, 251 Kan. 194, 203, 833 P.2d 988 (1992).

We find no Kansas case addressing this restitution issue. Other states addressing
the issue have held that a loss of paid time off or vacation time is the loss of an economic
benefit that is similar to lost wages and properly may be the subject of an order of
restitution.

In People v. Perez, No. 15CA1352, 2017 WL 1404231, at *3 (Colo. App. 2017),
the court held that "expenditure of vacation and sick leave is a loss of employee benefits
comparable to a victim's loss wages." Likewise, in In re K.F., 173 Cal. App. 4th 655, 666,
92 Cal. Rptr. 3d 784 (2009), the court found a victim's loss of sick leave was
compensable under California's restitution statute because "by depleting his sick leave . . .
the credits consumed would not be available [to the victim] to cover future illnesses or
for whatever other beneficial purpose the employer might allow."

In In re Welfare of M.R.H., 716 N.W.2d 349, 353 (Minn. Ct. App. 2006), the court
considered Minnesota's restitution statute and concluded: "Although accrued leave is not
one of the losses specifically listed in the statute, earned but unused leave is a
compensable asset, and its loss therefore may be recoverable by a victim-employee
through restitution." Similarly, in In re Ryan A., 202 Ariz. 19, 26, 39 P.3d 543 (Ariz. Ct.
App. 2002), the court declined to "construe the term 'lost wages' [in the Arizona
restitution statute] so narrowly as to preclude restitution for the loss of indirect
employment benefits, such as annual leave or vacation time . . . . The loss of such
benefits is a real economic loss tied to wages earned." In State v. Loutsch, 259 Wis. 2d
901, 913, 656 N.W.2d 781 (Wis. Ct. App. 2002), overruled on other grounds by State v.
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Fernandez, 316 Wis. 2d 598, 764 N.W.2d 509 (2009), the court considered
Wisconsin's restitution statute and found that sick leave is compensable.

While the Kansas restitution statute, K.S.A. 2017 Supp. 21-6607(c)(2), does not
expressly list vacation time as a compensable loss for purposes of restitution, the statute
is broad enough to encompass vacation time by covering "damage or loss caused by the
defendant's crime" and "the actual loss suffered."

Here, the district court found that the homeowner was required to take four hours
of vacation time in order to meet with the insurance adjuster on the claim caused by
Monzon's criminal conduct. The loss of vacation time is an economic loss similar to lost
wages, which our Supreme Court has determined to be a valid measurement of an actual
loss for purposes of restitution. See Beechum, 251 Kan. at 203. The district court's
restitution order was directed to restoring that portion of the homeowner's employment
benefit which was lost on account of Monzon's criminal actions. The district court did not
abuse its discretion in so ordering.

Next, Monzon asserts that his sentence is illegal because the sentencing court used
his prior juvenile adjudications to increase his sentence without requiring a jury to find
him guilty, in violation of his Sixth and Fourteenth Amendment rights under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Whether a sentence is illegal is a question of law over which we have unlimited
review. See State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016). The legality of a
sentence can be challenged at any time and may be considered for the first time on
appeal. State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).

In State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), our Supreme Court
determined that the use of juvenile adjudications in calculating criminal history does not
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violate a defendant's constitutional rights under Apprendi. We are duty bound to follow
Supreme Court precedent absent a showing that the Supreme Court is departing from its
previous holding. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We
see no indication that our Supreme Court is departing from Hitt. Hitt controls. The district
court did not violate Monzon's constitutional rights by using his juvenile adjudications to
increase his sentence.

Affirmed.