State v. Williams

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NOT DESIGNATED FOR PUBLICATION

Nos. 115,438
115,439

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BOBBY L. WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April 28,
2017. Appeal dismissed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON, J., and FAIRCHILD, S.J.

Per Curiam: Bobby L. Williams appeals the district court's order directing him to
pay $830.70 in restitution. Because Williams agreed to pay restitution in that amount as
part of a plea agreement, we find that pursuant to K.S.A. 2016 Supp. 21-6820(c)(2) we
lack jurisdiction and dismiss the appeal.

The facts in this case are undisputed. In case 14CR3231, Williams pled guilty to
aggravated battery (severity level 7), aggravated assault, and misdemeanor criminal
damage to property. In case 15CR748, he pled guilty to aggravated battery (severity level
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5) and felony driving under the influence (DUI) of alcohol. As part of the plea agreement,
the parties agreed to specific sentencing recommendations including the use of minimum
grid-box sentencing terms, the imposition of concurrent sentences, and the payment of
restitution of at least $830.70.

At sentencing, the presentence investigation report reflected Williams' criminal
history score as A, and all parties agreed this designation was correct. Adopting the terms
of the plea agreement, the district court imposed prison terms based on the minimum
presumptive grid-box numbers and ordered all sentences in the two cases to run
concurrently for a controlling term of 122 months. Consistent with the plea agreement,
the district court ordered Williams to pay $830.70 in restitution for the 2014 case and
$1,750 in fines for the DUI charge but waived the requirement that Williams reimburse
the Board of Indigent Defense Services (BIDS) for the attorney fees incurred in his
defense. The district court ordered Williams to serve the controlling sentence.

Williams timely appealed from the judgments in both cases, and those appeals
were consolidated. On appeal, Williams argues the district court abused its discretion in
ordering him to pay restitution because he was ordered to serve 10 years in prison and
because the court recognized his inability to pay when it waived the requirement that he
repay BIDS for his attorney fees. Williams asserts that even ordering restitution to be
paid as a condition of his parole was an abuse of discretion because he would be
unemployable after his release because of his convictions and his lack of marketable
skills. Consequently, Williams claims that he will not be able to pay the restitution.

As a general rule, when a party challenges the amount of restitution and the
manner in which it is to be paid to the aggrieved party, the issue is reviewed under the
abuse of discretion standard. State v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016).
Judicial action constitutes an abuse of discretion if (1) no reasonable person would take
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the view adopted by the trial 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).

Williams simply argues the restitution order is unreasonable and does not claim
any error of law or fact. However, Williams' challenge falters before it leaves the starting
gate for two separate and compelling reasons. First, Williams failed to challenge the
restitution order below. He did not object to its inclusion in the plea agreement, nor did
he make any argument or present any evidence at sentencing that the order of restitution
would be unworkable. Usually, a party cannot raise an issue for the first time on appeal.
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (recognizing general rule
barring new issues on appeal). Moreover, Williams fails to claim that any of the
exceptions to the general rule barring new issues applies in his case. See State v. Phillips,
299 Kan. 479, 493, 325 P.3d 1095 (2014) (listing exceptions permitting new issues).
Finally, Williams has failed to comply with Supreme Court Rule 6.02(a)(5) (2017 Kan. S.
Ct. R. 34), which requires an appellant to explain why an issue was not raised below and
why it should be considered for the first time on appeal. Williams' failure to comply with
this rule precludes us from considering this issue on appeal. See Godfrey, 301 Kan. at
1043-44.

The second and more important reason Williams' arguments are flawed is that the
order of restitution was an explicit part of the plea agreement. Pursuant to K.S.A. 2016
Supp. 21-6820(c)(2), an appellate court "shall not review . . . (2) any sentence resulting
from an agreement between the state and the defendant which the sentencing court
approves on the record." When a district court imposes the sentence requested by the
parties as part of a plea agreement, it implicitly approves the bargained-for sentence
under K.S.A. 2016 Supp. 21-6820(c)(2) (formerly K.S.A. 21-4721[c][2]). See State v.
Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994), superseded by statute on other
grounds as stated in State v. Huerta, 291 Kan. 831, 835, 247 P.3d 1043 (2011).
Therefore, we must dismiss Williams' appeal.
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Appeal dismissed.