State v. Patterson

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NOT DESIGNATED FOR PUBLICATION

No. 114,861

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GABRIEL A. PATTERSON,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed July 28, 2017.
Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN, J., and PATRICIA MACKE DICK, District Judge,
assigned.

Per Curiam: While hanging out at a bar, one of Gabriel A. Patterson's friends
hatched a plan to rob some small-time drug dealers. Patterson stayed close as his friends
concocted their scheme and gathered weapons. Patterson ultimately recruited another
man to help with the robbery. After the men finalized the plan, Patterson concealed his
face and the group headed over to the apartment they planned to rob. Patterson stepped
inside the apartment and waited by the front door in the living room as three of his
companions beat, threatened, and robbed their victims. The State charged Patterson with
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several crimes, and a jury convicted him of three counts of aggravated robbery and one
count of aggravated burglary. He appeals his conviction and sentence. Finding no error,
we affirm.

FACTS

One night in November 2014, roommates Kendri Salmons and Christopher Adams
ran into a mutual acquaintance at a bar in Lawrence. The acquaintance, Yusef Kindell,
asked if Adams had any marijuana, as Adams and his roommates each dealt small
amounts of drugs. In fact, Kindell previously had come to Adams' apartment to buy the
party drug ecstasy from Adams. After their encounter with Kindell, Salmons and Adams
left the bar to smoke marijuana and spend time with friends at home.

At the same time, and unbeknownst to the roommates, Kindell and his friends
hatched a plan to rob them. Kindell and Cody Kukuk previously had joked about robbing
Adams' apartment a handful of times. After Kindell saw Adams at the bar that night, he
and Kukuk started planning a burglary. Kukuk texted others, including Driskell Johnson,
about joining them. Kukuk asked Johnson to bring a gun. Kukuk's good friend Patterson,
who was at the bar with Kindell and Kukuk, remained nearby throughout the entire
planning period.

The men continued planning after they arrived back at Kukuk's house. Patterson
said he saw gloves, a knife, and a handgun on the table at Kukuk's house. Patterson also
said they were calling other people in an attempt to get another person to participate.
Zachary Pence, who ultimately did participate, testified that Patterson was the person
who called and invited him to join in the robbery. Patterson claimed that he did not call
Pence to get involved and that it was Kukuk who used his phone for that purpose;
however, when Pence called back, Patterson admitted he answered the call and relayed to
the group that Pence wanted them to come and get him. Patterson admitted he went with
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the others to pick up Pence. Patterson told police that Pence was invited to join them
because he's "crazy," and that Pence was "probably just an extra body or something,"
"muscle."

The agreed-upon plan was for Kukuk, Johnson, and Pence to keep the people
inside the apartment out of the way while Kindell and Patterson "[took] stuff." Most of
the men, Patterson included, concealed their faces. Kukuk carried a broken chair leg as a
weapon, and Johnson had an unloaded gun. Together, the five walked from Kukuk's
residence to the apartment, where Pence broke the door in by ramming it with his
shoulder. Pence entered the apartment first, followed by Johnson and Kukuk. All three of
these men went up the stairs towards the bedrooms while Patterson and Kindell stepped
inside the house and waited by the front door in the living room.

There were four victims in the apartment that night: the three male roommates
(Shubhankar Mathur, Adams, and Salmons) and Mathur's girlfriend, Jacqueline Wells.
All were asleep at the time the five men entered the apartment. Pence, Kukuk, and
Johnson confronted the residents of the apartment separately, and there was evidence at
trial of the following:

 Johnson hit Salmons with the gun, cutting a gash in Salmons' head and causing
him to scream, but no property was taken directly from Salmons.

 Kukuk, Johnson, and Pence broke into Mathur and Wells' bedroom, threatened
them, and took from them approximately $140, some marijuana, and their cell
phones.

 Kukuk, Johnson, and Pence then went to Adams' room, where Kukuk hit Adams
several times with the wooden stick while demanding money and marijuana.
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Adams surrendered a safe, which Kukuk took. The safe later yielded marijuana
and cash.

 As Kukuk, Johnson, and Pence were leaving the apartment, Pence punched
Mathur in the eye and Johnson took an X-Box console from the living room.

While Pence, Kukuk, and Johnson were upstairs, Patterson remained positioned
just inside the front door in the living room. Patterson stated in an interview with police
officers that "[Johnson] was just cracking people. . . . He was just so on fire, like he was
so mad," and that he heard screaming coming from upstairs, someone yelling, "I'm sorry"
and "I don't have any weed." Patterson told police that when he heard the screaming, he
thought, "This is not ideal," and that the people "shouldn't be screaming that bad."
Patterson said that one of the men who lived in the apartment came downstairs, saw him
standing by the door, and then went into the living room: "He didn't see [my face] or
anything. . . . I made sure nobody could." At that point, Patterson went outside the
apartment to wait for the others.

From outside, Patterson saw Pence throw a cellphone from an upstairs window or
balcony, and it was at that time Patterson decided to leave. Patterson said to police,
"After it got really bad . . . I was the first person to leave." Patterson stated that he was
afraid someone would get "split open." Patterson said he was sorry "as soon as [he] heard
screaming." Patterson told police that he decided to leave because it got too violent, "I
just felt like that wasn't what I pictured it was gonna go down like in my mind."

Patterson ran back to Kukuk's house, and the other four men arrived 1 or 2 minutes
after him. Kindell had the safe and Johnson had the X-Box console and the gun. Patterson
told police that when the other men returned, they were "pumped up" on adrenaline and
gave him the safe to open. The men talked about what had just transpired, and one of the
details revealed was that Johnson had "pistol whipped" someone.
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Patterson admitted that he opened the safe with a knife and that they discovered a
couple of ounces of marijuana and approximately $1,500 in cash inside the safe once it
was opened. Another man who was at the house when the five men returned, Michael
Thurman, divided the money between the men, keeping a cut for himself; Thurman knew
about the crimes, but had not participated, and Patterson was unsure why Thurman
received a portion of the money. Patterson said that after they split the money, he went
home.

The victims notified the police. Wells recognized Pence because he had not
concealed his identity, and she and Pence had attended the same high school. Wells
identified Pence by name to police officers called to the scene. Later that same day,
Pence was arrested. Pence entered into a plea arrangement in exchange for information
regarding the other four men involved in the crimes. Officers recovered the broken safe
and the chair leg from Kukuk's home. Later, Patterson texted Kindell to tell him Pence
had been arrested for the burglary. A day or two later, Patterson again contacted Kindell,
this time saying that he and Kukuk had left town. The Lawrence police eventually caught
up with Patterson in California.

The State charged Patterson with four counts of aggravated robbery and one count
of aggravated burglary. The State later amended the information to drop one count of
robbery and add a count of aggravated battery. The case proceeded to a jury trial, where
Kindell testified that Patterson stayed with the group throughout the planning and
execution of the robbery. Kindell also testified that Patterson never objected, attempted to
stop the others, or thwarted the plan in any way.

Like Kindell, Pence remembered Patterson being present during the planning
stages. In fact, Pence specifically recalled that Patterson called him to help in the first
place. He also remembered Patterson and Kindell standing at the front door while he,
Johnson, and Kukuk raided the apartment.
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Johnson testified that other than leaving briefly to deal with his girlfriend,
Patterson remained with the group as they discussed the robbery. He also recalled driving
past the apartment with Patterson and others before they actually carried out their plan.
Pence and Johnson remembered Patterson riding along to pick up Pence, and no one
recalled Patterson protesting or backing out of the robbery at any time. Johnson
characterized Patterson as generally agreeing with the plan.

The jury convicted Patterson of all but the aggravated battery charge. The district
court granted Patterson's motion for downward departure to a controlling sentence of 22
months and ordered joint and several liability with the other four codefendants for
restitution in an amount of $1,496.13. The district court found that a firearm was
involved in the crimes and that Patterson was aware that a firearm was involved in the
crimes, and so ordered that Patterson be required to register as a violent offender for 15
years.

ANALYSIS

Patterson raises four issues on appeal: (1) the prosecutor committed reversible
error by arguing to the jury that it could find him guilty of aiding and abetting based on
the fact that he opened the safe, an act which occurred after the crimes were complete; (2)
the court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by failing to have the jury determine whether
a deadly weapon was involved in committing the crimes at issue here; (3) the criminal
statutory scheme under which he is required to pay restitution is unconstitutional in that it
bypasses a victim's right to a civil jury trial for damages; and (4) the court violated his
constitutional rights under Apprendi by failing to have the jury make any factual findings
necessary related to the court's order requiring him to pay restitution. We address each of
the issues raised by Patterson in turn.

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1. Prosecutorial error

At trial, the State's theory of the case revolved around Patterson as an aider and
abettor. In other words, the State argued that even if Patterson never handled the gun or
entered the apartment, he aided, assisted, and encouraged the others to participate. While
outlining this theory in her closing argument, the prosecutor said,

"[I]n determining [whether Patterson intentionally aided another in committing the
crimes], you can consider all the evidence of what the defendant did before, during, and
immediately after."

The prosecutor continued from there, highlighting Patterson's role in the planning, his
presence during the actual crime, and his prying open the safe; then she discussed
evidence of his mindset and consciousness of guilt.

Patterson alleges the isolated portion of the State's argument urging the jury to
consider Patterson's behavior after the crime (specifically, his opening the safe) amounts
to prosecutorial reversible error. Patterson made no objections to the State's closing
argument at trial; however, such an objection was not necessary to preserve the issue for
appeal. A claim of prosecutorial error based on comments made during voir dire, opening
statements, or closing argument (that are not evidence) will be reviewed on appeal even
when a contemporaneous objection was not made at the trial level. State v. Anderson, 294
Kan. 450, 461, 276 P.3d 200 (2012); see State v. Roeder, 300 Kan. 901, 932, 336 P.3d
831 (2014) (statements during closing argument). Further, a misstatement of controlling
law must be reviewed on appeal, regardless of a timely objection at trial, to protect a
defendant's right to due process. When a misstatement of controlling law is made
deliberately, it is outside the considerable latitude given to prosecutors during their
arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).

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Recently, our Supreme Court reevaluated several years of caselaw and established
an improved two-step framework for evaluating claims of prosecutorial error. State v.
Sherman, 305 Kan. 88, 378 P.3d 1060 (2016).

"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). We
continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
court need only address the higher standard of constitutional error.' [Citation omitted.]"
Sherman, 305 Kan. at 109.

In support of error, Patterson claims the prosecutor misstated the law by arguing to
the jury that it could consider the behavior of a defendant after a crime has been
committed to determine whether a defendant shares liability for the crime with the
principal under an aiding and abetting theory of prosecution. Patterson cites to State v.
Davis, 283 Kan. 569, 158 P.3d 317 (2006), which he argues stands for the legal
proposition that a defendant's behavior after the crime can never be considered in an
aiding and abetting case. But Patterson's reliance on Davis is misplaced, as both the facts
and the law are readily distinguishable from the facts and law presented here.

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In Davis, the defendant claimed the district court erred in failing to give an
instruction directing the jury to consider the testimony of an accomplice witness with
caution. PIK Crim. 3d 52.18 pertains to accomplice witness testimony and specifically
provides that it applies to witnesses who testify that they were "'involved in the
commission of the crime with which the defendant is charged.'" 283 Kan. at 576. Davis
argued the instruction was factually proper because the witness testified that she was
involved in events that occurred after the crime was committed, which made her an
accessory after the fact. But the court disagreed, holding that a witness who qualifies only
as an accessory after the fact is not enough to warrant an accomplice witness instruction.
In order for an accomplice witness instruction to be factually proper, the court held that
there must be evidence that the witness participated in the crime with which the
defendant is charged. Davis, 283 Kan. at 577-80 (although witness may have been
involved with events after the murder, only evidence at trial regarding witness'
whereabouts and involvement was offered by witness herself, who testified that she was
not present at time of the murder and there was no evidence that she otherwise
participated in the planning or commission of the murder other than the events that
occurred after the murder). In Davis, the court had to decide whether a witness was an
accomplice to determine if an accomplice witness jury instruction was legally and
factually proper. The decision we must make here, however, is if a defendant's actions
after a crime are relevant to whether that defendant shares liability for the crime as an
aider and abettor.

An individual aids and abets another—and is therefore criminally liable for that
person's crime—if he or she "advises, hires, counsels or procures the other to commit the
crime or intentionally aids the other in committing the conduct constituting" that crime.
K.S.A. 2016 Supp. 21-5210(a). That individual must also act "with the mental culpability
required for the commission" of the crime in question. K.S.A. 2016 Supp. 21-5210(a). As
presented in the jury instructions, the State pursued the theory that Patterson
"intentionally aid[ed] another to commit the crime."
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Many Kansas cases have considered what behaviors constitute aiding and abetting.
Specifically, "the law requires that the person knowingly associates with the unlawful
venture and participates in a way which indicates that such person is furthering the
success of the venture." State v. Baker, 287 Kan. 345, Syl. ¶ 7, 197 P.3d 421 (2008). As
such, "[m]ere association with the principals who actually commit the crime or mere
presence in the vicinity of the crime is itself insufficient to establish guilt as an aider and
abettor." 287 Kan. 345, Syl. ¶ 7. However, "'if from the facts and circumstances
surrounding the defendant's presence at the time and from the defendant's conduct it
appears that the defendant's presence did in fact encourage someone else to commit the
criminal act, guilt may be inferred.'" State v. Bland, 33 Kan. App. 2d 412, 417-18, 103
P.3d 492 (2004). If there is no direct evidence showing that the defendant planned "'to
encourage, incite, aid, abet, or assist in the crime,'" the jury is still permitted to consider
the defendant's failure "'to oppose the commission of the crime in connection with other
circumstances'" and to therefore conclude "'that the [defendant] assented to the
commission of the crime . . . and thereby aided and abetted the commission of the
crime.'" 33 Kan. App. 2d at 418. With that said, "failing to stop or report a crime is not
the basis for liability under an aider and abettor theory" without additional indicators of
the defendant's intention to "'further[] the success of the venture.'" State v. Simmons, 282
Kan. 728, 738, 148 P.3d 525 (2006).

Based on the applicable law as cited above, we find the prosecutor did not err by
arguing to the jury that it could consider the fact that Patterson opened the safe in
deciding whether Patterson was guilty of the crimes charged under an aiding and abetting
theory. In making this finding, we acknowledge that opening the safe is not an element of
the underlying crimes of aggravated burglary or of aggravated robbery and that Patterson
opened the safe after the crimes were complete. But to prove the burglary charge in this
case, the State needed to show that Patterson shared the intent to commit a theft inside the
apartment. Theft requires an intent to permanently deprive. See K.S.A. 2016 Supp. 21-
5801(a). Patterson's help opening the safe, removing the money, and keeping his share of
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the proceeds is the clear evidence of this intent. Patterson's concession that he opened the
safe and took his cut of the marijuana and money found inside—which he knew had just
been stolen from the victims' apartment—is relevant evidence from which a jury could
conclude that Patterson was not merely present in the vicinity of the crimes committed
but instead intentionally associated with the unlawful venture and participated in a way
which indicated that he was furthering the success of the venture. See Baker, 287 Kan.
345, Syl. ¶ 7. Because it is relevant to Patterson's intent, the prosecutor did not misstate
the law by telling the jury they could consider as a factor Patterson's conduct immediately
after the crimes in determining his culpable state of mind. See Sherman, 305 Kan. at 109.

And contrary to the characterization of events in his appellate brief, Patterson did
not stand idly by while his companions plotted and carried out the robbery. Patterson
participated in or at least listened extensively to the planning stages of the robbery.
Patterson watched as Kukuk and Johnson armed themselves. Pence testified that it was
Patterson who called to ask him to participate in the crime, and Patterson admitted he
went with the others to pick Pence up after Pence agreed to take part in the robbery.
Patterson also admitted that he knew Pence was invited to join them because he's "crazy,"
and would provide "an extra body" and "muscle." After the men finalized their plan,
Patterson concealed his face and accompanied the others to the apartment. Patterson and
Kindell stepped inside the apartment and waited by the front door in the living room as
Pence, Kukuk, and Johnson rushed inside. Patterson admitted that as he stood guard,
"[Johnson] was just cracking people. . . . He was just so on fire . . . so mad," and that he
heard screaming coming from upstairs, someone yelling, "I'm sorry" and "I don't have
any weed." Patterson also reported that when one of the men who lived in the apartment
came downstairs and saw him standing by the door, he made sure the resident could not
see his face. At no time did Patterson protest, back out, object, or disapprove of the plan
to rob Adams, Salmons, and Mathur. From the initial planning stages until the
distribution of the proceeds, the evidence at trial demonstrates Patterson intended to
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associate with the unlawful venture and to participate in a way which would further the
success of the venture. See Baker, 287 Kan. 345, Syl. ¶ 7.

2. Registration requirement

Patterson next argues that the district court violated his Sixth and Fourteenth
Amendment rights under Apprendi when it found that the crimes of conviction had been
committed with a deadly weapon and ordered him to register as a violent offender.
Patterson acknowledges that he never raised this issue with the district court. 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). There are several exceptions to this general rule, and review of an issue
raised under Apprendi is considered one of these exceptions "to prevent the denial of a
fundamental right." State v. Wheeler, No. 114,518, 2016 WL 5853090, at *1 (Kan. App.
2016) (unpublished opinion), petition for rev. filed October 28, 2016.

Whether a defendant's constitutional rights have been violated is a question of law
that we review without any required deference to the district court. State v. Unrein, 47
Kan. App. 2d 366, 369, 274 P.3d 691 (2012). Under the Kansas Offender Registration
Act, a district court can order a defendant to register as a violent offender if (among other
reasons) the defendant is convicted of a person felony and the court makes a finding on
the record that a deadly weapon was used in the commission of that person felony.
K.S.A. 2016 Supp. 22-4902(e)(2). In this case, Patterson was convicted of three counts of
aggravated robbery and one count of aggravated burglary, and the district court found
that a deadly weapon was used to commit those crimes, so it ordered him to register as a
violent offender for the next 15 years. Apprendi held that because of the Sixth
Amendment right to a jury trial and the Fourteenth Amendment right to due process,
"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
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beyond a reasonable doubt." 530 U.S. at 476-85, 490. So Patterson argues that the district
court violated Apprendi because ordering him to register as a violent offender increased
the penalty for his crime and was based on a court finding that had not been proved to a
jury beyond a reasonable doubt.

But Patterson's argument is grounded in the legal principle that registration as a
violent offender constitutes punishment. If registration is not punishment, then Apprendi
does not apply. Our court has held on several occasions that a registration requirement
does not increase the penalty for a crime beyond the legal maximum because registration
is separate from and does not impact the length of a defendant's sentence. Unrein, 47
Kan. App. 2d at 372; State v. Chambers, 36 Kan. App. 2d 228, 238-39, 138 P.3d 405
(2006). Based on those cases, requiring a defendant to register as a violent offender, even
when the finding that triggers registration is made by the court rather than a jury, does not
violate Apprendi. Unrein, 47 Kan. App. 2d at 372; Chambers, 36 Kan. App. 2d at 238-39.

Whether our prior rulings on this question are still good law is put in some doubt
by our Supreme Court's ruling in State v. Charles, 304 Kan. 158, 178, 372 P.3d 1109
(2016). In that case, the Kansas Supreme Court reached the opposite conclusion, holding
that because a registration requirement qualifies as a type of punishment, imposing
registration effectively increases the penalty for a crime. Charles, 304 Kan. at 178. Under
this reasoning, imposing registration without a jury finding that the defendant used a
deadly weapon would violate Apprendi. But once the Kansas Supreme Court gives an
indication that it is departing from its own precedent, we are no longer bound to follow
that precedent. Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 53 Kan.
App. 2d 622, Syl. ¶ 10, 390 P.3d 581 (2017). And the Kansas Supreme Court has given a
strong indication that Charles is not good law anymore. The ruling in Charles was based
on a case published on the same day, Doe v. Thompson, 304 Kan. 291, 373 P.3d 570
(2016), overruled by State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016).
Thompson, a four-to-three decision, held that the registration requirement was a type of
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punishment; therefore, the Ex Post Facto Clause of the United States Constitution applied
to prevent retroactive application of amendments to the registration statutes. 304 Kan.
291, Syl. ¶ 7. But Thompson was overruled on the day it was issued: Petersen-Beard,
with a different four-judge majority, held that the registration requirement could not be
challenged as cruel and unusual punishment under either the United States or the Kansas
Constitutions because it was not a type of punishment. 304 Kan. 192, Syl. ¶¶ 1-2.

Petersen-Beard did not expressly overrule Charles, but it did expressly overrule
Thompson. And in Charles, the court noted that the Petersen-Beard holding—which is
the exact opposite of the Thompson holding that Charles relied on—"may influence
whether the [registration-requirement] holding of this case is available to be relied upon
by violent offenders whose appeals have yet to be decided." Charles, 304 Kan. at 179. So
while Charles is exactly on point and has not been expressly overruled, we have an
indication, both from the Charles court and from the differently constituted Petersen-
Beard court, that the Supreme Court is departing from the position that an Apprendi
violation occurs when the court requires a defendant to register based on its finding that a
deadly weapon was used in the felony of conviction. See State v. Secrest, No. 115,565,
2017 WL 543546, at *4-5 (Kan. App. 2017) (unpublished opinion), petition for rev. filed
March 9, 2017; State v. Brown, No. 114,808, 2016 WL 7429424, at *8-9 (Kan. App.
2016) (unpublished opinion), petition for rev. filed January 18, 2017.

For the reasons stated above, we conclude that Charles is no longer good law.
Thus, the district court did not violate Apprendi when it found that a deadly weapon was
used in the commission of Patterson's felony convictions. See Secrest, 2017 WL 543546,
at *5 (no Apprendi violation in these circumstances); accord State v. Perez-Medina, No.
114,589, 2017 WL 262025, at *6 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed February 21, 2017; Brown, 2016 WL 7429424, at *8-9; Wheeler, 2016 WL
5853090, at *3; State v. Campbell, No. 114,167, 2016 WL 3407598, at *6 (Kan. App.
2016) (unpublished opinion), rev. denied April 26, 2017.
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3. Restitution and the common-law right to civil jury trial

Patterson argues that the Kansas criminal restitution scheme is facially
unconstitutional because it encroaches on a criminal defendant's common-law right to a
civil jury trial without offering anything in return. Patterson acknowledges that he did not
raise this issue before the district court. He did not object to any portion of his sentence at
sentencing and did not dispute the amount of restitution ordered.

Constitutional grounds for reversal asserted for the first time on appeal are not
properly before an appellate court for review. Godfrey, 301 Kan. at 1043. However, there
are three exceptions to this rule: (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 the
denial of fundamental rights; and (3) the judgment of the district 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). Patterson contends
that this court should review the merits of his claim because two exceptions apply: the
issue only involves a question of law arising on proved or admitted facts that is finally
determinative of the case, and the consideration of the claim is necessary to serve the
ends of justice or to prevent a denial of his fundamental rights. The State argues that
Patterson should be prohibited from raising this argument for the first time on appeal
because he did not raise it below and, in the alternative, the argument is without merit.

Patterson concedes in his brief that a panel of this court previously held the issue
he raises was not reviewable for the first time on appeal. State v. Jones, No. 113,044,
2016 WL 852865, at *9 (Kan. App. 2016) (unpublished opinion), petition for rev. filed
March 30, 2016. The Jones court disagreed that either exception was applicable:

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"The first exception does not apply because the determination of Jones' restitution claim
is not finally determinative of the case. The second exception does not apply because it
cannot be argued that consideration of the issue is necessary to serve the ends of justice
or to prevent a denial of fundamental rights when Jones did not even object to the
imposition of or the amount of restitution at sentencing. See United States v. Dudley, 739
F.2d 175, 179 (4th Cir. 1984) (appellate court refused to consider restitution issue for first
time on appeal when defendant failed to object to restitution in district court). Therefore,
we reject Jones' constitutional issue as not properly preserved for appellate review." 2016
WL 852865, at *9.

See also State v. Bradwell, No. 115,153, 2016 WL 7178771, at *4 (Kan. App. 2016)
(unpublished opinion) (following Jones). Like in Bradwell, a determination of Patterson's
restitution claim is not finally determinative of his criminal appeal, and Patterson did not
object to his sentence or the restitution ordered; therefore, the issue is not properly
preserved for appellate review.

4. Restitution as punishment

Finally, Patterson argues that the Kansas criminal restitution scheme is punitive, as
it requires a mandatory minimum amount of money to be determined by a judge, and thus
violates Apprendi. Patterson again acknowledges that he did not raise this issue to the
district court. Suggesting that the Kansas criminal restitution scheme is a sentencing
scheme, and therefore appropriate for an Apprendi challenge, Patterson argues that
review is proper because consideration of the issue involves only a question of law
arising on proved or admitted facts that is finally determinative of the case and is
necessary to serve the ends of justice or to prevent a denial of his fundamental rights. The
State contends that, in light of the holdings in Jones and Bradwell, Patterson's claimed
exceptions are inapplicable.

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The Jones court addressed this same issue and Jones' failure to raise it to the
district court:

"Again, Jones failed to raise this issue before the district court, and we find no applicable
exception to address the issue for the first time on appeal. Although we decline to address
the merits of Jones' claim, we note in passing that this court previously has held that the
imposition of restitution in a criminal case does not implicate Apprendi. See State v. Huff,
50 Kan. App. 2d 1094, 1103-04, 336 P.3d 897 (2014), rev. denied 302 Kan. [1015
(2015)]." 2016 WL 852865, at *9.

While Patterson attempts to distinguish Huff from the facts of this case, he fails to
acknowledge the weight of caselaw that distinguishes restitution orders from sentencing
schemes reviewable under Apprendi. See, e.g., United States v. Burns, 800 F.3d 1258,
1261-62 (10th Cir. 2015) (Apprendi's rule has no application to restitution). As restitution
does not implicate Apprendi, no exceptions apply to warrant review of this issue for the
first time on appeal.

Affirmed.