State v. Schafer

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NOT DESIGNATED FOR PUBLICATION

No. 115,523

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRADLEY SCHAFER,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed July 21,
2017. Affirmed in part, vacated in part, and remanded with directions.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., POWELL and GARDNER, JJ.

POWELL, J.: Bradley Schafer appeals the district court's restitution order,
contending there was insufficient evidence to support it, and challenges his criminal
history score, arguing use of his prior juvenile adjudications to calculate that score was
improper. Because the district court's restitution amount exceeds the fair market value of
the stolen property, we must vacate that order and remand for further proceedings. We
affirm the district court in all other respects.

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FACTUAL AND PROCEDURAL BACKGROUND

In October 2015, Schafer pled guilty to one count of possession of stolen property.
The stolen property Schafer possessed was a dirt bike. The district court sentenced
Schafer to 17 months in prison but granted him 12 months' probation. The State also
sought $3,500 in restitution based on the victim's request. Schafer objected, arguing that
the amount should be less because the dirt bike was returned. The district court awarded
the full $3,500.

Schafer then filed a motion to correct an illegal restitution order. At the hearing on
the motion, Schafer argued he should have only been ordered to pay $2,500 in restitution,
the difference between the dirt bike's current worth and its original worth. Evidence was
presented that the dirt bike was originally worth $3,500 but its value dropped to only
$1,000 when it was returned, the victim spent $405 in repair costs, and the victim was
without the bike for 8 days. Assuming the victim probably also spent $400 to $500 in
labor costs, the district court determined that $3,500 was a reasonable restitution amount
and denied Schafer's motion.

Schafer timely appeals.

DID THE DISTRICT COURT ERR IN DETERMINING THE AMOUNT OF RESTITUTION
SCHAFER WAS ORDERED TO PAY?

"'Questions concerning the "amount of restitution and the manner in which it is
made to the aggrieved party" are reviewed under an abuse of discretion standard.
[Citation omitted.] A district court's factual findings relating to the causal link between
the crime committed and the victim's loss will be affirmed if those findings are supported
by substantial competent evidence. Finally, appellate courts have unlimited review over
legal questions involving the interpretation of the underlying statutes.''' State v. Shank,
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304 Kan. 89, 93, 369 P.3d 322 (2016) (quoting State v. King, 288 Kan. 333, 354-55, 204
P.3d 585 [2009]).

Judicial discretion is abused if the court's order was unreasonable, based on a legal error,
or based on a factual error. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
"'Substantial competent evidence is legal and relevant evidence a reasonable person could
accept to support a conclusion.' [Citation omitted.]" State v. Talkington, 301 Kan. 453,
461, 345 P.3d 258 (2015).

K.S.A. 2016 Supp. 21-6604(b)(1) states that a district court "shall order the
defendant to pay restitution, which shall include, but not be limited to, damage or loss
caused by the defendant's crime, unless the court finds compelling circumstances which
would render a plan of restitution unworkable." While the rigidity of proof required in a
criminal case is not required in a civil damage trial, the district court must base its
determination of restitution "on reliable evidence which yields a defensible restitution
figure." State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 (1996). Kansas courts
have consistently limited restitution to the fair market value of the property and held that
an amount above fair market value is an abuse of discretion. See State v. Phillips, 45 Kan.
App. 2d 788, 794, 253 P.3d 372 (2011) (citing a string of cases).

"If property is recovered in a damaged condition and can be repaired to its
undamaged condition, the measure of restitution is the reasonable cost of repairs plus a
reasonable amount for loss of use of the property while repairs are made. Where the
property cannot be repaired, then the amount of restitution is the difference between the
fair market value of the property immediately before it was damaged and the fair market
value after it was damaged. However, in either situation, 'the restitution amount should
not exceed the reasonable market value . . . immediately before the damage.' [Citation
omitted.]" 45 Kan. App. 2d at 795.

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Schafer argues that the district court's restitution determination lacked evidentiary
support because the only evidence presented was that the dirt bike was now worth
$1,000, that it was originally worth $3,500, and that the amount spent on repairs was
$405. We must agree with Schafer based upon the record before us. No evidence
regarding labor costs, or even if there were labor costs, was presented. The district court
just assumed that in addition to the repair costs there must have been labor costs. While
the State argues the district court's restitution determination was reasonable because the
victim also spent time and effort trying to find the dirt bike, the total restitution amount
may not exceed the reasonable market value of the dirt bike before it was stolen. See 45
Kan. App. 2d at 795. Because the district court awarded $3,500 in restitution even though
the dirt bike, albeit now worth only $1,000, was returned, the restitution amount was
essentially $1,000 above the fair market value of the bike. Accordingly, the district court
abused its discretion, and we must vacate its restitution order. The issue of the restitution
amount is remanded to the district court for recalculation consistent with our opinion.

DID THE DISTRICT COURT IMPOSE AN ILLEGAL SENTENCE?

Schafer also claims his sentence was illegal because the district court used his
previous juvenile adjudications to raise his criminal history score, which increased his
sentence, without proving the adjudications to a jury beyond a reasonable doubt in
violation of his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). Although Schafer did not object to his criminal
history score, an illegal sentence can be challenged at any time. See State v. Gray, 303
Kan. 1011, 1014, 368 P.3d 1113 (2016).

The revised Kansas Sentencing Guidelines Act requires the inclusion of juvenile
adjudications which have not decayed in calculating a defendant's criminal history score.
K.S.A. 2016 Supp. 21-6810(a). Moreover, our Supreme Court has specifically held that
using prior juvenile adjudications to calculate a defendant's criminal history score does
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not violate Apprendi. State v. Hitt, 273 Kan. 224, Syl. ¶ 2, 42 P.3d 732 (2002), cert.
denied 537 U.S. 1104 (2003). Therefore, contrary to Schafer's argument, the district court
did not err in sentencing Schafer and the sentence was not illegal.

Affirmed in part, vacated in part, and remanded with directions.