State v. Whiters

1

NOT DESIGNATED FOR PUBLICATION

No. 115,767

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REGINALD WHITERS a/k/a LOGAN,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 14,
2017. Affirmed.

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

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

Before HILL, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Reginald Whiters pled guilty to aggravated battery pursuant to a plea
agreement in which the State agreed to dismiss another aggravated battery charge and
two alternative counts of driving under the influence. The State agreed not to seek
restitution in this case, but Whiters agreed to pay restitution in another criminal case.

At Whiters' sentencing, the court imposed a sentence of 19 months in prison
followed by 12 months of postrelease supervision. The court did not order him to pay
attorney fees, but it ordered him to pay $1,994.99 in restitution in this current case.
2

Whiters did not object at the time to the restitution order or argue that restitution was
unworkable. Whiters now appeals, claiming that the court erred in ordering him to pay
restitution.

As a preliminary matter, we note the general rule that an issue not raised before
the district court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan.
375, 403, 266 P.3d 516 (2011). An appellant who wishes to raise an issue for the first
time on appeal must invoke an exception to this general rule and explain why the issue is
properly before the appellate court. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d
1068 (2015). Kansas Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 35) states that
the contents of an appellant's brief must include

"[t]he arguments and authorities relied on, separated by issue if there is more
than one. Each issue must begin with citation to the appropriate standard of appellate
review and a pinpoint reference to the location in the record on appeal where the issue
was raised and ruled on. If the issue was not raised below, there must be an explanation
why the issue is properly before the court." (Emphasis added.)

In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the Supreme
Court warned litigants that those who fail to comply with Rule 6.02(a)(5) risk having
issues deemed waived or abandoned. Later, in Godfrey, it noted that "[w]e are now
sufficiently post-Williams that litigants have no excuse for noncompliance with Rule
6.02(a)(5)." Godfrey, 301 Kan. at 1044.

Whiters failed to comply with Rule 6.02(a)(5). He makes no effort to articulate
any exception to the general rule on appealability. He does not explain why his argument
is properly before this court or why it should be considered for the first time on appeal.
Thus, he has waived and abandoned this issue.

3

Besides, there is no merit to Whiters' argument that restitution is impractical,
inconsistent, and unreasonable. Under K.S.A. 2016 Supp. 21-6604(b)(1), the sentencing
court must order restitution unless the court finds "compelling circumstances which
would render a plan of restitution unworkable." The burden was on Whiters to present
evidence to establish such "compelling circumstances." State v. Herron, 50 Kan. App. 2d
1058, 1061, 335 P.3d 1211 (2014), rev. denied 301 Kan. 1049 (2015). He made no effort
to satisfy this burden. Because Whiters failed to show the restitution order was
unworkable, the sentencing court did not abuse its discretion in ordering restitution.

Affirmed.