State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 120,142

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MYLON BERNARD WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed October 4,
2019. Vacated and remanded with directions.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

David Greenwald, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: Mylon Bernard Williams appeals the district court's order requiring
him to pay restitution in the amount of $12,977.63 following his conviction for two
counts of aggravated battery. He argues there is no evidence in the record to support the
amount of restitution the district court ordered. He also argues the district court deprived
him of a proper restitution hearing, violating his procedural due process rights. We find
the State failed to present any evidence to support the restitution order. Additionally,
based on the lack of evidence and our decision to remand for an evidentiary hearing,
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Williams' claim he was deprived of a due process hearing is moot. We vacate the
restitution order and remand for a hearing.

FACTS

In July 2017, the State charged Williams with multiple counts, including two
counts of aggravated battery. Williams ultimately pled no contest to and was found guilty
of two counts of aggravated battery. One of the victims of Williams' aggravated battery
convictions, D.W., became permanently disabled when Williams shot him in his leg and
back. J.E. Dunn Construction built a wheelchair elevator and ramp so D.W. could access
his home.

At his sentencing hearing, Williams appeared in person and through counsel.
Williams' counsel confirmed he and Williams had reviewed the presentence investigation
(PSI) report before the sentencing hearing. The PSI showed D.W. would be requesting
restitution, but it did not include a specific amount. Based on the Crime Victims
Compensation Board's (the Board) computation, the State requested Williams pay
$12,977.63 in restitution for D.W.'s wheelchair elevator and ramp and for his
prescriptions. The State said J.E. Dunn Construction had built D.W.'s wheelchair elevator
and ramp. Williams' counsel stated he had seen the wheelchair elevator when he
investigated the case. Williams objected to the amount and reasonableness of the State's
requested restitution.

When Williams objected to the restitution amount, the following exchange took
place:

"[Defense counsel]: Judge, my client wants to object to the amount of restitution.
He doesn't know if that's a reasonable amount or not, so.
"THE COURT: State your options are to—apparently you can't get the detailed
bill from the Crime Victims Board which is, in my opinion, ridiculous. But we would
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continue this to have you bring somebody from J.E. Dunn or somebody to establish the
fee.
"[The State]: Well, Your Honor, I think I don't [sic] to continue the hearing to get
somebody from J.E. Dunn to testify how they got the number. Crime Victims
Compensation paid J.E. Dunn already, so it's not J.E. Dunn who's getting paid; it's gonna
be the Crime Victims Compensation being compensated for what they've already paid
out.
"THE COURT: I understand that.
[The State]: Should the court not find that amount workable, feasible, we're not
interested in that. I would ask the defendant be ordered to pay out the $142.63 to the
victim, [D.W.], for his prescriptions that's also awarded. So, I understand that defendant
is unhappy with the amount of money for the elevator and ramp, but at least we should
pay back for these prescriptions."

Ultimately, the district court sentenced Williams to 120 months in prison and
ordered Williams to pay $12,977.63 in restitution, the entire amount the State had
requested.

ANALYSIS

Williams now argues there is no evidence in the record to support the amount of
restitution the district court ordered. He preserved this argument for appeal by objecting
to the amount of restitution at sentencing. See State v. Hunziker, 274 Kan. 655, 660, 56
P.3d 202 (2002).

This court reviews arguments involving the "'amount of restitution and the manner
in which it is made'" for abuse of discretion. State v. Shank, 304 Kan. 89, 93, 369 P.3d
322 (2016). The district court abuses discretion when its action (1) is arbitrary, fanciful,
or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.
Substantial competent evidence must support the district court's factual findings. 304
Kan. at 92.
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The district court has discretion to determine the amount of restitution but it must
support its restitution order with evidence in the record. Shank, 304 Kan. at 93.
"'Although the rigidness and proof of value that lies in a civil damage suit does not apply
in a criminal case, the court's determination of restitution must be based on reliable
evidence which yields a defensible restitution figure.'" Hunziker, 274 Kan. at 660
(quoting State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 [1996]).

It is the State's burden to bring sufficient evidence to prove the restitution amount.
See State v. Cox, 30 Kan. App. 2d 407, Syl. ¶ 1, 42 P.3d 182 (2002). Mere statements of
counsel are not evidence. State v. Cole, 37 Kan. App. 2d 633, 637, 155 P.3d 739 (2007).
In Cole, the district court based its restitution order solely on the State's statements
because there was no evidence in the record to support the restitution figure. This court
held: "The [district] court's entry of the order of restitution without any evidence to
support it constitutes an abuse of discretion." 37 Kan. App. 2d at 637.

Here, the State did not meet its burden to bring sufficient evidence to prove the
restitution amount. The defendant objected to the reasonableness of the State's requested
restitution amount. Nonetheless, the State never moved to admit the Board's restitution
computation into evidence and the district court never admitted the computation as
evidence to support the requested amount of restitution. The district court gave the State
the opportunity to present testimony from J.E. Dunn employees or the Board at a separate
evidentiary hearing to establish the cost of the wheelchair elevator and ramp. In response,
the State announced it was "not interested" in a separate hearing and offered to reduce the
restitution amount to $142.63 for the costs of D.W.'s prescriptions if the court did not
find the $12,977.63 amount feasible. It is not clear from the record whether the $142.63
for prescriptions was in addition to or included within the $12,977.63 amount. When the
district court ordered $12,977.63 in restitution, it had no evidence admitted to support the
order. Presumably, the district court used the Board's restitution computation when it
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ordered restitution, but this court is unable to make that determination because the record
does not contain any supporting evidentiary documents.

The State argues evidence in the record supports the district court's restitution
determination, relying on State v. Khamvongsa, No. 111,780, 2015 WL 7434698, at *1-2
(Kan. App. 2015) (unpublished opinion). There, the defendant vaguely questioned the
State's requested restitution amount, but he did not "object to the numbers." In finding
substantial competent evidence supported the district court's restitution order, the panel
questioned "why counsel did not object to the numbers or request an evidentiary hearing
on the reasonableness of the restitution request." 2015 WL 7434698, at *2. Contrary to
the State's argument, the facts in this case differ from Khamvongsa because Williams
objected to the amount of restitution; thus, the district court needed to base its finding on
evidence admitted into the record. The district court failed to do so. Therefore, like in
Cole, the district court abused its discretion when it ordered restitution with no evidence
to support it. For this reason, we vacate the order of restitution and remand the matter for
the district court to conduct an evidentiary hearing on the issue of restitution.

Given our decision to vacate the restitution order, William's second issue on the
lack of a due process hearing is moot. See State v. Hilton, 295 Kan. 845, 849, 286 P.3d
871 (2012) ("Generally, Kansas appellate courts do not decide moot questions or render
advisory opinions.").

Vacated and remanded with directions.