State v. Stephenson

1

NOT DESIGNATED FOR PUBLICATION

Nos. 115,556
115,557

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FREDERICK M. STEPHENSON,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed June 23,
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 GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Frederick M. Stephenson pled guilty to burglary and misdemeanor
theft in case No. 15CR2424, pursuant to a plea agreement. He pled guilty to possession of
methamphetamine in case No. 15CR2960, also pursuant to a plea agreement. As part of
the plea agreement, the State recommended the sentences run concurrently, for an
anticipated sentence of 32 months' incarceration. Further, Stephenson agreed to pay
$2,500 in restitution.

2

The district court sentenced Stephenson to 5 months' imprisonment for burglary
and 12 months' imprisonment for misdemeanor theft. It sentenced Stephenson to 32
months' imprisonment for possession of methamphetamine and ordered the sentences run
concurrently for a total term of 32 months' incarceration. The district court waived
reimbursement of attorney fees because it had ordered $2,500 in restitution pursuant to
the plea agreement.

Stephenson appeals and argues the district court erred when it ordered him to pay
restitution and made restitution a condition of postrelease supervision. However, there is
a question of whether we have jurisdiction to consider Stephenson's appeal.

Pursuant to K.S.A. 2016 Supp. 21-6820(c)(1), an appellate court shall not review
"any sentence resulting from an agreement between the State and the defendant which the
sentencing court approves on the record." Restitution is undeniably a part of a defendant's
sentence. State v. Huff, 50 Kan. App. 2d 1094, 1099, 336 P.3d 897 (2014), rev. denied
302 Kan. 1015 (2015). The district court accepted Stephenson's plea on the record. It
sentenced Stephenson to a total of 32 months' imprisonment, the amount the State
recommended in the plea agreement. It also ordered Stephenson to pay $2,500 in
restitution pursuant to the plea agreement. Thus, we may not have jurisdiction to consider
his appeal. However, we will consider the substance of the appeal in case there is review.

Stephenson argues the district court abused its discretion since it did not find
restitution was unworkable. He contends the chance of earning a decent living is minimal
given his substantial prison sentence and criminal history. He also argues restitution is
unworkable because he is the caregiver for his disabled wife and five children.

"'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.'" State
v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016) (quoting State v. King, 288 Kan. 333,
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354, 204 P.3d 585 [2009]). A judicial action constitutes an abuse of discretion if (1) no
reasonable person would take the view adopted by the trial court; (2) the action is based
on an error of law; or (3) the action is based on an error of fact. State v. Marshall, 303
Kan. 438, 445, 362 P.3d 587 (2015).

Pursuant to K.S.A. 2016 Supp. 21-6604(b)(1), a sentencing court is required to
order restitution "unless [it] finds compelling circumstances which would render a plan of
restitution unworkable." The defendant has the burden of providing evidence of
compelling circumstances that make the plan of restitution unworkable. State v. Holt, 305
Kan. 839, 842, 390 P.3d 1 (2017).

In State v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015), the defendant argued
his restitution plan was unworkable based on his lengthy prison sentence and limited
earning potential while incarcerated. The Kansas Supreme Court held: "Having presented
no evidence of his inability to pay restitution after his possible parole, Alcala failed to
sustain his burden of demonstrating the restitution plan was unworkable." 301 Kan. at
840. Similarly, in Holt, the Kansas Supreme Court held: "At the sentencing hearing, Holt
at most demonstrated his current income and lack of assets. His failure to present
evidence of an inability to pay when released did not sustain his burden of proving the
restitution order unworkable." 305 Kan. at 843.

Like the defendants in Holt and Alcala, Stephenson presented no evidence of
compelling circumstances that would make his restitution plan unworkable once he was
released from prison. Further, on appeal, he presents only a generalized argument.
Similar generalized arguments were insufficient in Holt and Alcala. It is insufficient here
as well. Stephenson has not met his burden to show the restitution ordered by the district
court was unworkable.

4

Stephenson makes one other argument on appeal which is not properly before us
because it was not raised below. An issue not raised before the trial court cannot be raised
on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).

Stephenson argues the district court erred when it made payment of restitution a
condition of postrelease supervision. He did not raise this argument before the district
court. However, even if this issue was properly before us, he would not be entitled to
relief because restitution may clearly be a condition of postrelease supervision. K.S.A.
2016 Supp. 22-3717(n) states:

"If the court which sentenced an inmate specified at the time of sentencing the
amount and the recipient of any restitution ordered as a condition of parole or
postrelease supervision, the prisoner review board shall order as a condition of parole or
postrelease supervision that the inmate pay restitution in the amount and manner provided
in the journal entry unless the board finds compelling circumstances which would render
a plan of restitution unworkable." (Emphasis added.)

Appeal dismissed.