State v. Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 118,560

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALBERT RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 14,
2018. Vacated and remanded with directions.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., STANDRIDGE, J., and WALKER, S.J.

PER CURIAM: Albert Rodriguez pled guilty to fleeing or attempting to elude an
officer after he crashed a Chevrolet Suburban into a house while attempting to flee from
police. On appeal, Rodriguez contends the amount of restitution awarded for the loss of
the vehicle is not supported by the evidence because the State failed to present evidence
of the fair market value of the car at the time it was taken. We agree with Rodriguez and
vacate the portion of the restitution order relating to the vehicle and remand to the district
court for further proceedings.

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FACTS

While driving a Chevrolet Suburban belonging to S.G.-M., Rodriguez fled from
police, lost control of the vehicle, and crashed it into the front porch of a house. The
vehicle was destroyed. As part of a plea agreement, the State dropped a theft charge that
alleged Rodriguez had stolen the vehicle from S.G.-M. in exchange for a guilty plea on a
charge of attempting to elude an officer. The plea agreement addressed restitution and
stated that Rodriguez agreed to pay restitution to S.G.-M. for the Suburban in "[a]
reasonable amount to be determined by the time of sentencing."

At sentencing, Rodriguez asked the court to follow the plea agreement. However,
the parties disagreed about the amount of restitution the State requested for S.G.-M. No
testimony was provided nor was any documentary evidence presented to support the
State's restitution request for S.G.-M.

The prosecutor stated that he had spoken to S.G.-M. through an interpreter, and
S.G.-M. claimed that he paid $3,400 for the Suburban a year and a half earlier. The
prosecutor told the court that that he researched the National Automobile Dealers
Association (NADA) guidelines value for the vehicle, and it showed a value of $2,500 to
$6,500 for the same year, make, and model. The State requested restitution in the amount
of $3,400 because the vehicle was believed to be a total loss.

Defense counsel acknowledged that Rodriguez would be required to pay
restitution for the vehicle if the amount of restitution was proven. However, counsel
pointed out that there was no evidence presented regarding the actual value of the
vehicle, including the actual purchase price or the condition of the vehicle prior to the
accident. Defense counsel complained that

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"SG-M isn't here today to even testify about, you know, if the exhaust systems were
working, if the engine was working, you know. There are all sorts of things that can go
into it.
"The fact that this vehicle moved and can run from the cops doesn't mean it's a
$2500 vehicle."

Defense counsel also suggested that S.G.-M. could pursue the matter through small
claims court where S.G.-M. could present evidence about the vehicle's actual value with
proper documentation.

The district court asked the State whether it wished to present evidence regarding
the vehicle's value, and the State responded that it would prefer to resolve the restitution
issue that day and leave the amount to the court's discretion. Defense counsel said it
trusted the State regarding the NADA value of the vehicle, but he did not know "if we
can cross apply that to this vehicle."

The district court sentenced Rodriguez to 12 months' probation with an underlying
sentence of 13 months in prison to be served if he did not successfully complete his
probation. The court ordered restitution in the amount of $2,650 for damage to the
victim's house, an amount which is not being appealed by Rodriguez. The court also
ordered Rodriguez to pay $3,400 in restitution for the Suburban. The court reasoned that
Rodriguez' actions caused the loss of S.G.-M.'s vehicle. The judge further stated:

"I know there were issues with regard to that vehicle. They've been explained
pretty well here on the record. The problem that I have is this person drove this vehicle
until the time you took it. At that point that person is left without a vehicle, and despite
some of the questions about ownership or value, they are now without a vehicle."

Rodriguez has timely appealed from the district court's restitution order as to S.G.-
M.'s Suburban.
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ANALYSIS

On appeal, Rodriguez' sole contention is that the district court's restitution order
was not supported by sufficient evidence because it was based solely on comments made
by the State at sentencing. He asserts the court improperly relied on the State's arguments
in setting that amount, and there is insufficient evidence in the record to determine the
fair market value of the vehicle. The State counters that reliable evidence supports the
amount of restitution because Rodriguez agreed to pay restitution in a reasonable amount
as part of the plea agreement.

We review the method and the amount of restitution under an abuse of discretion
standard. State v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016). A judicial action
constitutes an abuse of discretion if: (1) no reasonable person would take the view
adopted by the district court, (2) it is based on an error of law, or (3) it is based on an
error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). Rodriguez bears
the burden of showing such an abuse of discretion. See State v. Stafford, 296 Kan. 25, 45,
290 P.3d 562 (2012).

A restitution award includes the damage or loss caused by the defendant's crime.
K.S.A. 2017 Supp. 21-6604(b)(1). An award is appropriate when the district court finds a
causal connection between the crime and the resulting damage. State v. Wells, 18 Kan.
App. 2d 735, 737, 861 P.2d 828 (1993). As applied here, the district court can order the
defendant to "make reparation or restitution to the aggrieved party for the damage or loss
caused by the defendant's crime" as a condition of probation. K.S.A. 2017 Supp. 21-
6607(c)(2).

In cases where there is a loss of property, the fair market value at the time of the
loss—rather than the replacement cost of the property—is generally the standard used to
determine the amount of restitution. State v. Hall, 297 Kan. 709, 713, 304 P.3d 677
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(2013); State v. Maloney, 36 Kan. App. 2d 711, 714, 143 P.3d 417 (2006). If the property
lacks a fair market value that is easily determined by the district court, the court may
consider other factors such as the purchase price, condition, age, and replacement cost of
the property. 36 Kan. App. 2d at 715. But the amount of restitution should not exceed the
reasonable market value of the property immediately before the damage. State v. Phillips,
45 Kan. App. 2d 788, 795, 253 P.3d 372 (2011); State v. Rhodes, 31 Kan. App. 2d 1040,
1042-43, 77 P.3d 502 (2003) (reversing order of restitution because it was based on
replacement value rather than fair market value).

The amount of restitution ordered for the Suburban was apparently based solely on
the State's indication of how much S.G.-M. indicated that he paid for the vehicle about 18
months prior to the accident. No testimony was given at the sentencing hearing regarding
the value of the vehicle at the time of the accident, and no documentation was submitted
to the district court to support the State's assertion of the vehicle's value.

The district court's determination of restitution "must be based on reliable
evidence which yields a defensible restitution figure." State v. Hunziker, 274 Kan. 655,
Syl. ¶ 3, 56 P.3d 202 (2002). And the State has the duty to present sufficient evidence to
prove the amount of restitution. See State v. Cox, 30 Kan. App. 2d 407, Syl. ¶ 1, 42 P.3d
182 (2002). A district court abused its discretion if it enters an order of restitution without
any evidence to support it. State v. Cole, 37 Kan. App. 2d 633, 637, 155 P.3d 739 (2007).
Arguments and statements made by counsel do not constitute evidence. 37 Kan. App. 2d
at 636-37 (finding abuse of discretion when district court relied solely on State's
representations when setting amount of restitution); see State v. Reser, 244 Kan. 306,
316, 767 P.2d 1277 (1989).

Rodriguez compares the facts of his case to that in State v. Hafner, No. 107,196,
2012 WL 4795628 (Kan. App. 2012) (unpublished opinion). In Hafner, a panel of this
court vacated an award of restitution for the loss of a vehicle because the State failed to
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present sufficient evidence on which the court could rely to support its order of
restitution. The panel found that "[t]here is no evidence in the record of the condition of
the pickup truck at the time of the theft or the number of miles the truck was driven in the
4 years between the time it was purchased and the time it was stolen." 2012 WL
4795628, at *2.

The State attempts to distinguish this case from Hafner on the basis that Rodriguez
agreed to pay restitution in a reasonable amount. We note that Hafner also agreed to pay
restitution, but the State asserts that the defendant in Hafner merely agreed that the State
would seek restitution for the value of the stolen vehicle. The State finds significance in
the fact that Rodriguez agreed to pay restitution in a reasonable amount. The State claims
that its statements regarding the value of the vehicle should have sufficed under these
circumstances. We disagree. We do not see Rodriguez' agreement to pay restitution for
the vehicle in a reasonable amount as an agreement that relieved the State of its duty to
present evidence of the vehicle's value in order to determine that reasonable amount.

In the plea agreement, the parties contemplated two separate restitution awards.
First, Rodriguez agreed to pay the victim $2,650, and he is not challenging that portion of
the restitution order. Rodriguez also agreed to pay restitution to S.G.-M. in "[a]
reasonable amount to be determined by the time of sentencing." But the amount of
restitution due S.G.-M. had not been determined by the time of sentencing as evidenced
by the parties' arguments at sentencing.

Here, the record reveals that the State failed to present any evidence to support the
amount of restitution ordered by the district court. Although the parties agreed that
Rodriguez would pay a "reasonable amount," it follows that the State would need to
present evidence regarding what would constitute a reasonable amount. Instead of
presenting evidence of the vehicle's value at the time of the accident, the State merely
relied on a conversation with S.G.-M. regarding the purchase price of the vehicle and the
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State's own research regarding the range of value of the Suburban. And we note the
State's citation to the NADA guidelines produced a $4,000 range (from $2,500 to
$6,500), hardly a precise measure of this particular Suburban's value. In short, the State
did not present any documentation or testimony supporting its assertions. There is no
evidence in the record of the condition of the vehicle at the time of the accident.

We conclude that the State failed to present sufficient reliable evidence to support
the district court's award of restitution. But we do note that as part of the plea agreement,
Rodriguez agreed to pay restitution to S.G.-M. in a reasonable amount. Accordingly, we
vacate the restitution order and remand this matter to the district court for further
proceedings to determine an appropriate amount of restitution by utilizing the proper
standards.

Vacated and remanded with directions.