State v. Dwyer

No. 118,940

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

SCOTT D. DWYER,
Appellee.

SYLLABUS BY THE COURT

1.
Proceedings regarding the collection of judgments resulting from orders of
restitution are civil in nature.

2.
The plain and unambiguous language of K.S.A. 2017 Supp. 60-2403 states that all
restitution judgments not void as of July 1, 2015, continue to be enforceable forever.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 15,
2019. Reversed.

Stephanie B. Poyer, of Butler & Associates, P.A., of Topeka, for appellant.

Scott D. Dwyer, appellee pro se.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and BURGESS, S.J.

BURGESS, J.: Scott D. Dwyer was convicted of three counts of theft in 2003.
Dwyer was ordered to pay $8,450 in restitution as part of his sentence. In 2017, Dwyer

1
filed a motion with the district court to release his judgment because it had remained
dormant for the statutory period of seven years. However, the Kansas Legislature
amended the dormant judgment statute in 2015 so that, as of July 1, 2015, restitution
judgments could no longer be judicially released and instead would remain collectible
forever. Any restitution judgment that was deemed void before July 1, 2015, could still
be released. See K.S.A. 2017 Supp. 60-2403(b).The State argued that Dwyer's judgment
was not void as of July 1, 2015, and, thus, his judgment could never be extinguished
under the new statute. The district court held Dwyer's judgment was already void prior to
the amendment's effective date and released his judgment. The State appeals this
decision. We reverse and reinstate the judgment against Dwyer consistent with K.S.A.
2017 Supp. 60-2403(b).

FACTUAL AND PROCEDURAL BACKGROUND

On February 24, 2003, Dwyer pled guilty to three counts of theft and was
sentenced to 12 months in prison with postrelease supervision. The district court also
ordered Dwyer to pay $8,450 in restitution as a condition of his postrelease supervision.
Dwyer's sentence began on December 13, 2002.

On November 29, 2017, Dwyer filed a motion to release his judgments in four
separate criminal cases, including this one, arguing that no one had attempted to collect
the judgment in five years. Dwyer asserted that inaction rendered the judgment dormant.
Dwyer also argued that when the judgments went dormant, no one attempted to collect on
the judgments for an additional two years which rendered them void and subject to
release. In contrast, the State argued that, pursuant to K.S.A. 60-2403(d), a plaintiff has
up to 12 years to collect a restitution judgment before the judgment becomes void and is
subject to release. Further, due to an amendment to the statute in 2015, the State argued
that Dwyer's judgment would never become dormant and, thus, could be enforced forever

2
because his judgment was still active as of the amendment date. See K.S.A. 2017 Supp.
60-2403(b).

The district court agreed with Dwyer. The district court found the sentencing
journal entry "did not clearly and unambiguously state" that the restitution owed was
immediately payable. Thus, even though Dwyer's restitution was originally ordered on
March 24, 2003, pursuant to Kansas caselaw, the restitution's enforcement date was
stayed until Dwyer completed his sentence. The record does not include the exact date
Dwyer completed his sentence, but the district court stated that Dwyer's sentence would
have been completed on December 13, 2003, assuming that he did not earn any good
time credit. However, assuming Dwyer earned all his good time credit, he would have
completed his sentence in mid-October 2003 at the earliest. Thus, his restitution payment
would become due on either of these days and the collection clock would start running.

The district court also explained the legislative history of K.S.A. 60-2403. Prior to
2015, subsection (d) provided that an individual has 10 years to collect a restitution
judgment before it becomes dormant. If that judgment remained dormant for an
additional two years, a defendant could then ask the district court to release that
judgment. However, the statute was amended in 2015 and subsection (d) was stricken,
which eliminated the 10-year collection period and imposed a 5-year collection period in
its place. Additionally, those judgments that were not void as of July 1, 2015, would
never become dormant. See L. 2015, ch. 53, § 4.

The district court then applied K.S.A. 2017 Supp. 60-2403. Recognizing that no
one had attempted to collect on the judgment within the five-year collection period
mandated by the amended statute, the judgment became dormant "at least by December
13, 2008." Because the statute requires the judgment to remain dormant for an additional
two years before it may officially be deemed void, the judgment would have become void
on December 13, 2010, at the latest. Therefore, the district court ruled the judgment was
3
void as of July 1, 2015, and could still be released from judgment under the amended
statute. This meant that K.S.A. 2017 Supp. 60-2403(b), which mandated that a judgment
could never become dormant, did not apply.

But, the district court also noted that restitution judgments are now subject to the
five-year collection period because the "clear legislative intent is that as of July 1, 2015,
judgments for restitution are subject to K.S.A. 60-2403(a)(l) and those judgments that
were not void as of July 1, 2015 will never become dormant." As such, the district court
found that "[Dwyer's] judgment for restitution in this case became void the minute the
amendments went into effect." The district court granted Dwyer's motion and released the
restitution judgment on December 27, 2017.

The State filed a notice of appeal on January 23, 2018. Dwyer then filed a motion
to dismiss the appeal arguing the State filed an untimely notice of appeal. Another Court
of Appeals panel denied the motion stating that although Dwyer's obligation to pay
restitution stems from a criminal conviction, the appeal from the judgment voiding
restitution was a collateral attack and was civil in nature. The panel ruled that the State's
notice of appeal was timely because the journal entry was filed on December 27, 2017,
and the State filed its notice of appeal on January 23, 2018, which was within the 30 days
allotted by statute. Dwyer also filed a petition for review on the jurisdiction issue, but the
petition was denied.

DOES THIS COURT HAVE JURISDICTION
TO HEAR THE ISSUES ON APPEAL?

Before reviewing the issue on the merits, Dwyer first asserts that this court lacks
jurisdiction to hear the State's appeal for the following reasons: (1) The State did not file
a timely notice of appeal, (2) the State is not permitted to appeal under these

4
circumstances according to statute, and (3) the State failed to list its basis for jurisdiction
in the notice of appeal.

With respect to whether the notice of appeal was timely, Dwyer argues that,
because the restitution judgment stems from a criminal case, the State was required to file
its appeal within 14 days of the district court's ruling from the bench. Dwyer also argues
that even if this case is considered to be a civil action, the State still failed to file the
notice of appeal within 30 days from when the district court pronounced its ruling from
the bench as required by the civil procedure rules. Dwyer asserts that the district court
pronounced the ruling from the bench on December 22, 2017, and the State did not file its
appeal until January 23, 2018, which was 32 days after the district court made its ruling.

The timely filing of a notice of appeal ordinarily is jurisdictional. See In re Care &
Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017). Additionally, "'[i]t is a
fundamental proposition of Kansas appellate procedure that an appellate court only
obtains jurisdiction over the rulings identified in the notice of appeal.'" Associated
Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074
(2011) (quoting Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d
598 [1994]). Our standard of review provides that whether jurisdiction exists is a question
of law over which this court's review is unlimited. State v. Jamerson, 54 Kan. App. 2d
312, 314, 399 P.3d 246 (2017).

Dormant restitution judgments are governed by K.S.A. 2017 Supp. 60-2403;
Chapter 60 covers civil procedure rather than criminal law. Additionally, K.S.A. 21-
4603d(b)(2) provides that "[i]f the court orders restitution, the restitution shall be a
judgment against the defendant which may be collected by the court by garnishment or
other execution as on judgments in civil cases." A recent Court of Appeals panel affirmed
that enforcement of a criminal defendant's restitution is "governed by the Kansas Code of
Civil Procedure and is treated the same as any other money judgment obtained in a civil
5
suit." Jamerson, 54 Kan. App. 2d at 315. Kansas civil procedure rules provide that an
appeal must be filed within 30 days from "entry of the judgment." K.S.A. 2017 Supp. 60-
2103(a). In civil cases, a judgment is entered when a journal entry or judgment form is
filed. K.S.A. 2017 Supp. 60-258.

Here, the district court did not have an oral hearing on the matter, but rather it filed
a journal entry of its decision on December 27, 2017. Because this is a civil matter, the
State had 30 days from this date to file its appeal. The State filed its notice of appeal on
January 23, 2018, which was 27 days later. Thus, the State filed a timely notice of appeal.

Dwyer also argues that the State may only appeal a judgment under a few
circumstances and this is not one of them. Dwyer further contends that because the State
failed to list the basis for jurisdiction in its notice of appeal, this precludes this court from
considering the issues on appeal. The State addressed the jurisdiction issue when it filed
its response to Dwyer's petition for review, but it does not address the jurisdiction issue in
its appellate brief.

Generally, the State may only appeal a judgment in a criminal case under the
following circumstances:

"(1) From an order dismissing a complaint, information or indictment;
"(2) from an order arresting judgment;
"(3) upon a question reserved by the prosecution; or
"(4) upon an order granting a new trial in any case involving a class A or B
felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid
crime." K.S.A. 2017 Supp. 22-3602(b).

Dwyer asserts the State could have arguably reserved a question under section (3),
but the State did not do so. Dwyer also argues that the State was required to list one of
these four grounds in its notice of appeal but failed to do. Because this is a civil matter,
6
K.S.A. 2017 Supp. 22-3602 does not define the grounds on which the State may appeal.
Instead, the State cited K.S.A. 60-2101 as the basis for its appeal. K.S.A. 60-2101(a)
states that appeals in civil actions are governed by K.S.A. 60-2102.

K.S.A. 2017 Supp. 60-2102(a) allows a party to appeal a judgment as a matter of
right from:

"(1) An order that discharges, vacates or modifies a provisional remedy.
"(2) An order that grants, continues, modifies, refuses or dissolves an injunction,
or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas
corpus.
"(3) An order that appoints a receiver or refuses to wind up a receivership or to
take steps to accomplish the purposes thereof, such as directing sales or other disposal of
property, or an order involving the tax or revenue laws, the title to real estate, the
constitution of this state or the constitution, laws or treaties of the United States.
"(4) A final decision in any action, except in an action where a direct appeal to
the supreme court is required by law. In any appeal or cross appeal from a final decision,
any act or ruling from the beginning of the proceedings shall be reviewable."

Because the December 2017 judgment was a final decision, it is appealable under
K.S.A. 2017 Supp. 60-2102(a)(4). Further, nothing in this statute requires a party to
explicitly assert one of these grounds for jurisdiction in order to perfect an appeal. Rather,
the Kansas Civil Procedure statutes only provide that the notice of appeal must specify
the parties taking the appeal, designate the judgment or part thereof appealed from, and
name the appellate court to which the appeal is taken. K.S.A. 2017 Supp. 60-2103(b).
The State's notice of appeal includes all of these requirements and the State followed the
proper procedures to perfect its appeal. Thus, this court has jurisdiction to hear the issue.

7
 DID THE DISTRICT COURT ERR IN DETERMINING
DWYER'S JUDGMENT WAS VOID AS OF JULY 1, 2015?

Finding that this court has jurisdiction over this appeal, the sole issue for
determination is when Dwyer's judgment became void under the statute. Our standard of
review provides that interpretation of a statute receives unlimited review. Jamerson, 54
Kan. App. 2d at 314.

When interpreting a statute, an appellate court first looks at the plain language of
the statute to ascertain the Legislature's intent. "'When language is plain and
unambiguous, there is no need to resort to statutory construction. An appellate court
merely interprets the language as it appears; it is not free to speculate and cannot read
into the statute language not readily found there.' [Citations omitted.]" In re Estate of
Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014). It is only when the language is unclear
that the court looks to the canons of statutory construction, consults legislative history, or
considers other background information to ascertain its meaning. Whaley v. Sharp, 301
Kan. 192, 196, 343 P.3d 63 (2014).

We first must determine when the "collection clock" started to run as to the
viability of the restitution order. Here, Dwyer's journal entry from sentencing was
ambiguous as to whether his restitution order would be enforced during his incarceration
period or if it would only become enforceable once he completed his sentence. The
Kansas Supreme Court has held that if a district court intends for the restitution judgment
to be enforced during the defendant's incarceration period, the district court must state
this intention unambiguously. State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014).
When a district court's restitution order fails to unambiguously state when the restitution
order will be enforced, the restitution judgment will not be enforced until the defendant is
released from prison. See 299 Kan. at 151. Thus, the collection clock on Dwyer's
restitution judgment did not begin until October 2003 when he was released from prison.

8
 We turn next to interpretation of the statute involved here, K.S.A. 2017 Supp. 60-
2403. But first, a brief explanation of its history is in order.

Prior to 2015, K.S.A. 60-2403(d) specifically provided a section detailing how
dormant restitution judgments were to be addressed. It provided that when a creditor has
not filed a renewal affidavit or if execution proceedings had not been issued within 10
years of the journal entry of restitution order, the judgment became dormant "and
cease[d] to operate as a lien on the real estate of the judgment debtor." If the judgment
remained dormant for an additional period of two years, the district court was required to
release the judgment of record upon the defendant's request. K.S.A. 60-2403(d). A
creditor could revive or renew its intention to collect the debt at any time before the full
12 years had passed in order to keep the judgment alive. K.S.A. 60-2403(d).

The Legislature amended the statute in 2015 and eliminated subsection (d)
regarding the dormancy calculation for restitution judgements. Instead, as to restitution
judgments, the statute now informs us that they never become dormant. But the new
statute contains one critical exception for judgments that were void as of the adoption of
the amendments:

"Except for those judgments which have become void as of July 1, 2015, no judgment for
court costs, fees, fines or restitution shall be or become dormant for any purpose except
as provided in this subsection. If a judgment would have become dormant under the
conditions set forth in subsection (a), the judgment shall cease to operate as a lien on the
real estate of the judgment debtor as of the date the judgment would have become
dormant, but the judgment shall not be released of record pursuant to subsection (a)."
K.S.A. 2017 Supp. 60-2403(b).

The district court interpreted this change to mean that Dwyer's judgment now fell
under the general civil judgment category in subsection (a)(1) which meant that Dwyer's
judgment became dormant in October 2008 after applying the general five-year period in
9
civil actions before it would be declared dormant. This judgment laid dormant for an
additional two years; thus, the judgment became void (or subject to mandatory release
upon request) as of October 2010. Because this judgment was already void as of July 1,
2015, Judge Goering opined that subsection (b) did not apply and the judgment could be
released pursuant to (a)(1).

It was the State's position that using the 10-year collection period under the
previous statute, Dwyer's judgment would not become dormant until October 2013 and,
thus, the judgment would not be void until October 2015. Because it was not void as of
July 1, 2015, the judgment could not be subsequently released. But, the district court
ruled that the State's application meant applying both the 10-year collection period under
the old statute and applying the "judgments never go dormant" provision from the new
statute. The district court ruled that the State could not mix and match portions of the two
versions of the statute. We disagree. There is no mixing and matching of statutes here.

The amended statute states in plain and unambiguous language that restitution
judgments that were not void as July 1, 2015, shall not "be or become dormant for any
purpose except as provided in this subsection." K.S.A. 2017 Supp. 60-2403(b). The
remaining provision simply deals with how a restitution judgment that would be dormant
under the new five-year provision should be treated—it is no longer a lien on real estate,
but it still cannot be released. Under the most favorable interpretation to Dwyer, the
judgment against him could not have been considered void any earlier than October 2015,
clearly subsequent to July 1, 2015.

Both parties make extensive arguments as to whether the 2015 amendment to
K.S.A. 60-2403 should be applied retroactively. We find that there is no need to do so.

The plain and unambiguous language of the statute informs us how to apply it
before and after July 1, 2015. Those restitution judgments that were already void (or
10
subject to mandatory release upon request) as of July 1, 2015, would not be subject to the
new "never dormant" restitution provision because those judgments already had a
predetermined expiration date. And this interpretation makes sense. To hold otherwise
would to be to find, for example, that a restitution judgment that was eight years old and
completely enforceable on June 30, 2015, would be wiped out on July 1, 2015, to the
detriment of a creditor who was relying on the 10-year period before dormancy and the
12-year period before it was considered void. We are required to construe statutes to
avoid such unreasonable or absurd results. State v. Arnett, 307 Kan. 648, 654, 413 P.3d
787 (2018).

The judgment of the district court releasing the restitution judgment against Dwyer
is reversed. It is ordered that the judgment rendered against Dwyer is valid and shall
continue as a judgment against Dwyer.

Reversed.

11