State v. Robison

No. 120,903

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT JAMES ROBISON III,
Appellant.

SYLLABUS BY THE COURT

1.
Generally, a constitutional issue not raised before the district court is deemed
waived or abandoned. Nevertheless, appellate courts can review issues presented on
appeal where: (1) the newly asserted theory involves only a question of law arising on
proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent a denial of fundamental rights; or (3) the district court is right for the
wrong reason. However, even if an exception would support a decision to review a new
claim, appellate courts have no obligation to do so.

2.
The right to a jury trial is a fundamental right under both Section 5 of the Kansas
Constitution Bill of Rights and under the Sixth Amendment to the United States
Constitution.

3.
K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order a
convicted defendant to pay restitution as part of the sentence. Similarly, K.S.A. 2017
Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a

1
condition of probation. Both statutes provide that the restitution amount must include the
victim's damage or loss caused by the defendant's crime, unless the district court finds
compelling circumstances that would render a plan of restitution to be unworkable.

4.
Restitution is a form of restorative justice. It is intended to restore the victims of
crime to the position they found themselves in prior to a defendant's commission of the
offense that caused the injury or damage. Although part of the criminal sentence,
restitution is intended to fairly compensate the victims of crime who actually suffered an
injury or damage rather than the government.

5.
The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp.
21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate Section 5 of the
Kansas Constitution Bill of Rights.

6.
Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2)
impose a mandatory minimum amount or a mandatory maximum amount that a convicted
defendant must pay to reimburse a victim of crime. Both statutes base the maximum
amount of restitution on the actual damage or loss suffered by the victim as a result of the
defendant's crime. Likewise, both statutes grant the district court the authority to order a
lesser amount than the actual amount suffered by the victim if compelling circumstances
show a restitution plan to be unworkable.

7.
The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp.
21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate the Sixth
Amendment to the United States Constitution.

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8.
Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2)
prohibit a district court from awarding restitution to an insurance carrier that has suffered
damage or injury as a result of the defendant's crime.

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed June 26, 2020.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.

BRUNS, J.: Robert James Robison, III pled no contest to one count of battery of a
law enforcement officer. As part of his sentence, the district court required Robison to
pay $2,648.56 in restitution to reimburse a workers compensation insurance carrier that
had paid the medical expenses of the law enforcement officer injured as a result of the
battery. On appeal, Robison contends that the order of restitution violates both Section 5
of the Kansas Constitution Bill of Rights and the Sixth Amendment of the United States
Constitution. In addition, Robison contends that the district court erred in awarding
restitution to be paid to an insurance carrier. Finding no error, we affirm the district
court's order of restitution.

FACTS

On January 3, 2018, the State charged Robison with two counts of battery of a law
enforcement officer in violation of K.S.A. 2017 Supp. 21-5413(c)(3)(D). The charges
stemmed from an incident at the Lyon County Jail in which Robison hit Officer Zachary

3
Nance and Corporal Bobby Cutright several times. Corporal Cutright suffered an injury
to his eye and a bite on his arm. Following the incident, he went to Newman Regional
Health where he received treatment. Lyon County's workers compensation insurance
carrier subsequently paid Corporal Cutright's medical bills.

Prior to trial, the parties entered into a plea agreement in which Robison agreed to
plead no contest to one count of battery of a law enforcement officer. In exchange, the
State agreed to dismiss the second count and further agreed not to request a fine. On
March 20, 2018, the district court accepted Robison's no-contest plea and found him
guilty of a single count of battery of a law enforcement officer arising out of the attack on
Corporal Cutright. A few months later, the district court sentenced Robison to 32 months'
imprisonment and 24 months' post-release supervision. Complying with the terms of the
plea agreement, the district court did not impose a fine. However, the district court agreed
to consider the State's request for restitution and continued the resolution of the request
until a later date.

At a restitution hearing held on August 21, 2018, the State requested that Robison
pay $2,648.56 in restitution to reimburse the workers compensation insurance carrier that
paid Corporal Cutright's medical bills arising out of the battery. A hospital employee
testified about the medical bills and verified that they had been paid by the insurance
carrier. Robison's counsel did not dispute the amount of the medical bills or that they
arose out of the attack on Corporal Cutright. Instead, defense counsel argued that the
workers compensation insurance carrier was not entitled to restitution and had not
requested reimbursement.

After considering the evidence and the arguments of counsel, the district court
found that the medical bills incurred by Corporal Cutright were caused by Robison's
crime and that Lyon County's insurance carrier had paid the medical expenses on the
officer's behalf. Accordingly, the district court ordered Robison to pay restitution in the

4
amount of $2,648.56 to reimburse the workers compensation insurance carrier for the
medical expenses it had paid.

On appeal, Robison raises three issues. First, Robison contends that the Kansas
restitution statutes violate Section 5 of the Kansas Constitution Bill of Rights because
they encroach upon a criminal defendant's common law right to a civil jury trial on
damages caused by the defendant's crime. Second, Robison contends that his right to a
jury trial on the issue of restitution under the Sixth Amendment of the United States
Constitution was violated because the statutes allowed the court to make a finding of fact
that increased the penalty for his crime beyond the prescribed statutory maximum. Third,
Robison contends that the statutes governing restitution preclude district courts from
awarding restitution to an insurance carrier that has paid the victim's medical expenses
caused by a criminal defendant. In response, the State denies each of these contentions.
Specifically, the State maintains that the Kansas restitution statutes are constitutional—
both under the Kansas Constitution and United States Constitution—and requests that we
affirm the district court's restitution order.

PRESERVATION

At the outset, we must determine whether Robison's constitutional claims are
properly before this court. The State argues that these issues were not properly preserved
at the district court level and we should not consider them. It is undisputed that Robison
asserts violations of the Kansas Constitution and the United States Constitution for the
first time on appeal. Whether an issue has been properly preserved for appeal is a
question of law that we review de novo. State v. Haberlein, 296 Kan. 195, 203, 290 P.3d
640 (2012).

Generally, a constitutional issue not raised before the district court is considered to
be waived or abandoned. Nevertheless, we can review issues presented on appeal in cases

5
where: (1) the newly asserted theory involves only a question of law arising on proved or
admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or
to prevent a denial of fundamental rights; or (3) the district court is right for the wrong
reason. State v. Perkins, 310 Kan. 764, 768, 449 P.3d 756 (2019). "The decision to
review an unpreserved claim under an exception is a prudential one. Even if an exception
would support a decision to review a new claim, this court has no obligation to do so."
State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020).

The right to a jury trial is a fundamental right under both Section 5 of the Kansas
Constitution Bill of Rights and under the Sixth Amendment to the United States
Constitution. State v. Rizo, 304 Kan. 974, 979-80, 377 P.3d 419 (2016). Robison argues
that his fundamental constitutional right to a jury trial was violated when the district court
decided the issue of restitution. Although Robison did not raise these issues before the
district court, we may consider them because they potentially implicate a claim to the
fundamental right to a trial by a jury under the Kansas Constitution and the United States
Constitution. See State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012). Accordingly,
we find that a decision on the merits would serve the ends of justice.

ANALYSIS

Section 5 of the Kansas Constitution Bill of Rights

The district court's authority to order restitution in a criminal case is established by
statute. Robison contends that these statutes violate Section 5 of the Kansas Constitution
Bill of Rights, which provides that "[t]he right of trial by jury shall be inviolate." So we
begin our analysis by looking at the statutes challenged by Robison.

K.S.A. 2017 Supp. 21-6604(b)(1)—which was applied in this case—grants a
district court the authority to order the defendant to pay restitution as part of the sentence.

6
The statute provides that the restitution amount "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." Similarly, K.S.A.
2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution
payments as a condition of probation. Based on the clear and unambiguous language of
the statutes, "'restitution for a victim's damages or loss depends on the establishment of a
causal link between the defendant's unlawful conduct and the victim's damages.'
[Citations omitted.]" State v. Alcala, 301 Kan. 832, 837, 348 P.3d 570 (2015).

Robison claims K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-
6607(c)(2) violate Section 5 of the Kansas Constitution Bill of Rights because they
deprive him of his right to have a civil jury determine the amount of damages or loss
caused by his crimes. Whether the criminal restitution statutes violate Section 5 of the
Kansas Constitution is a legal question. Although we usually must presume that a statute
is constitutional and must look for any reasonable way to interpret the statute to avoid a
violation, this presumption does not apply to claims involving fundamental rights. See
Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132-33, 442 P.3d 509 (2019) (plurality
opinion). Even so, we do not find Robison's arguments to be persuasive.

The parties agree that Section 5 of the Kansas Constitution Bill of Rights
preserves the common law right to a jury trial as it existed at the time of its adoption. The
Kansas Constitution was approved by the delegates to the Wyandotte Constitutional
Convention on July 29, 1859. A few months later, on October 4, 1859, the Kansas
Constitution—also known as the Wyandotte Constitution—was overwhelmingly
approved by popular vote. Consequently, Section 5 of the Kansas Constitution only
applies if it can be shown that territorial juries would have decided the issue of restitution
in 1859. See Hilburn, 309 Kan. at 1134.

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 Robison offers several arguments in an attempt to show that the criminal
restitution statutes implicate the right to a jury trial under Section 5 of the Kansas
Constitution. He first analogizes criminal restitution to causation and civil damages in a
tort action. Robison accurately points out that Kansas juries decided the amount of civil
damages in tort prior to statehood. See Kan. Terr. Stat. 1859, ch. 25, § 274. From there,
he springs to the conclusion that criminal restitution should be treated like a civil remedy
because such orders can be enforced like civil judgments under K.S.A. 60-4301.

We find Robison's comparison of criminal restitution to causation and civil
damages in tort to be unavailing. In fact, the Kansas Supreme Court has found that
"[r]estitution ordered in criminal proceedings and civil damages are separate and
independent remedies under Kansas Law." State v. Applegate, 266 Kan. 1072, 1078, 976
P.2d 936 (1999). Our Supreme Court recognized that "[t]he judge's order of restitution in
a criminal action does not bar a victim from seeking damages in a separate civil action.
Likewise, the judge . . . is not foreclosed from ordering restitution just because the victim
has received compensation in a civil action." 266 Kan. at 1079. Because criminal
restitution is not a civil judgment, we do not find that Section 5 of the Kansas
Constitution Bill of Rights requires that criminal restitution be imposed by a jury.

Robison also argues that he has a right to a jury trial under Section 5 of the Kansas
Constitution because Kansas juries would have had to determine the amount of criminal
restitution in 1859. In support of his argument, Robison cites a Kansas territorial statute
that required juries in criminal cases to determine the value of stolen property for certain
theft offenses. See Kan. Terr. Stat. 1859, ch. 27, § 219. But as the State points out, the
reason juries had to make a finding regarding the value of stolen property was because
that factual determination affected the severity level of the offense. See Kan. Terr. Stat.
1859, ch. 28, §§ 72-74, 82-88, 91. As a result, factual findings by juries under the
territorial statutes about the value of stolen property affected the appropriate sentence to
be imposed on the defendant. But this does not mean that juries were used—either at

8
common law or under territorial statutes—to determine whether an order of restitution
could be awarded.

Because criminal restitution is not a civil remedy and Robison has not even shown
that restitution was available at common law, we find his arguments to be unpersuasive.
Notably, Robison cites no provision in the Kansas territorial statutes that mention
criminal restitution. Likewise, he does not cite any Kansas territorial cases referencing
criminal restitution. As Robison candidly acknowledges, criminal restitution was not
listed in the Kansas territorial statutes as a permissible remedy for any crime in 1859.
Therefore, we conclude that Robison has failed to establish that Section 5 of the Kansas
Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A.
2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2).

Sixth Amendment of the United States Constitution

Next, Robison contends that the Kansas restitution statutes violate his right to a
jury trial under the Sixth Amendment to the United States Constitution. Robison argues
that the Kansas criminal restitution statutes violate the Sixth Amendment because they
allow a judge to determine the amount of restitution to be awarded to a victim. In support
of this argument, Robison cites Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), in which the United States Supreme Court held that "[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. He also cites Alleyne v. United States, 570 U.S. 99,
133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), in which the United States Supreme Court
held that facts that increase a mandatory minimum penalty must also be decided by a
jury.

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 In response, the State contends that the Sixth Amendment does not apply because
criminal restitution is not punishment. The State argues that even if criminal restitution is
punishment, it does not violate either Apprendi or Alleyne because a district court's
imposition of restitution does not increase the statutory maximum or minimum penalty
for an offense. The State relies on this court's opinion in State v. Huff, 50 Kan. App. 2d
1094, 336 P.3d 897 (2014), rev. denied 302 Kan. 1015 (2015), which held the statutes do
not violate the Sixth Amendment because restitution does not increase the statutory
maximum or minimum penalty for an offense. In addition, the State cites several federal
cases that reject similar challenges to criminal restitution statutes. See United States v.
Day, 700 F.3d 713, 716, 732 (4th Cir. 2012), and United States v. Burns, 800 F.3d 1258,
1261-62 (10th Cir. 2015).

Both parties acknowledge that this court has previously addressed this issue in
Huff. Likewise, we note that the Kansas Supreme Court has granted a petition for review
in one of the cases from our court from this court addressing this issue. State v. Arnett,
No. 112,572, 2018 WL 2072804 (Kan. App.) (unpublished opinion), rev. granted 308
Kan. 1596 (2018). We also note that in another case in which our court addressed this
issue, the Kansas Supreme Court initially granted a petition for review but subsequently
withdrew its order. State v. Patterson, No. 114,861, 2017 WL 3207149 (Kan. App. 2017)
(unpublished opinion), mandate issued November 14, 2019.

As discussed above, there are two Kansas statutes that require district courts to
order a defendant to pay restitution absent a finding of unworkability. K.S.A. 2017 Supp.
21-6604(b)(1)—which was applied in this case—provides that a district court must "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." Likewise, K.S.A. 2017 Supp. 21-
6607(c)(2)—which applies restitution to the terms of probation—provides that a district
court must order the defendant to "make reparation or restitution to the aggrieved party

10
for the damage or loss caused by the defendant's crime, in an amount and manner
determined by the court and to the person specified by the court, unless the court finds
compelling circumstances which would render a plan of restitution unworkable." Despite
minor differences in the wording, this court has interpreted the two statutes similarly
because they were enacted together and cover the same subject matter. See State v.
Miller, 51 Kan. App. 2d 869, 872, 355 P.3d 716 (2015).

Restitution is a form of restorative justice. It is intended to restore the victims of
crime to the position they found themselves in prior to a defendant's commission of the
offense that caused the injury or damage. See Black's Law Dictionary 1571 (11th ed.
2019) (Restitution is the "[r]eturn or restoration of some specific thing to its rightful
owner or status; Compensation for loss, esp., full or partial compensation paid by a
criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal
sentence or as a condition of probation."). Although part of the criminal sentence,
restitution benefits the criminal victims who actually suffered an injury or damage rather
than the government. See State v. Heim, No. 111,665, 2015 WL 1514060, at *2 (Kan.
App. 2015) (unpublished opinion) ("Restitution is intended to fairly compensate crime
victims and to further the rehabilitation of defendants by instilling in them some sense of
the costs their wrongdoing has inflicted.").

"While it is undeniable that restitution is part of a defendant's sentence, it does not
mean restitution is punishment." Huff, 50 Kan. App. 2d at 1099; see also State v. Hall, 45
Kan. App. 2d 290, 298, 247 P.3d 1050 (2011) (restitution is not part of a defendant's
punishment), aff'd 297 Kan. 709, 304 P.3d 677 (2013). Nevertheless, even if it is assumed
that restitution constitutes punishment, we find that Robison's Sixth Amendment
argument fails. This is because neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017
Supp. 21-6607(c)(2) impose a mandatory minimum amount or a mandatory maximum
amount that a convicted defendant must pay to reimburse a victim of crime.

11
 It is important to recognize that both statutes grant a district court the authority to
order a lesser amount than the actual amount suffered if it "finds compelling
circumstances which would render a plan of restitution unworkable." K.S.A. 2017 Supp.
21-6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2). Moreover, the restitution statutes
impose no mandatory maximum amount that a district court may award. Rather, both
statutes grant a district court the authority to order restitution in an amount equal to the
"damage or loss caused by the defendant's crime . . . ." See K.S.A. 2017 Supp. 21-
6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2). In other words, as our Supreme Court
found in Applegate, unless a restitution plan is shown to be unworkable, the amount to be
awarded is that which "reimburses the victim for the actual loss suffered." 266 Kan. at
1079.

Accordingly, because the Kansas statutes do not include mandatory minimums or
maximums, we find that neither Alleyne nor Apprendi applies to the award of criminal
restitution. As a result, we conclude that Robison's Sixth Amendment right to a jury trial
was not violated by the district court's imposition of restitution. Moreover, we note that
our holding is consistent with the numerous federal and state courts that have considered
the issue.

At least 11 of the 13 United States Circuit Courts of Appeal have refused to extend
Apprendi and its progeny to orders of restitution. See United States v. George, 949 F.3d
1181, 1188 (9th Cir. 2020); United States v. Vega-Martinez, 949 F.3d 43, 54 (1st Cir.
2020); United States v. Churn, 800 F.3d 768, 780-83 (6th Cir. 2015); Burns, 800 F.3d at
1261-62; United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015); United States v.
Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); Day, 700 F.3d at 732 (4th Cir. 2012);
Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006); United States v.
Leahy, 438 F.3d 328, 335-38 (3d Cir. 2006); United States v. Carruth, 418 F.3d 900, 904
(8th Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). In fact, we

12
can find no federal court that has held judicially ordered restitution violates Apprendi and
its progeny.

Similarly, several state courts have joined this court in concluding that Apprendi
and its progeny do not apply to restitution orders. See State v. Leon, 240 Ariz. 492, 495-
96, 381 P.3d 286 (Ct. App. 2016); People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal.
Rptr. 3d 861, 404 P.3d 1209 (2017); People v. Smith, 181 P.3d 324, 327 (Colo. App.
2007); Smith v. State, 990 N.E.2d 517, 520-22 (Ind. App. 2013); State v. Foumai, No.
CAAP-XX-XXXXXXX, 2018 WL 495679, at *4 (Haw. Ct. App. 2018) (unpublished
opinion); Commonwealth v. Denehy, 466 Mass. 723, 736-38, 2 N.E.3d 161 (2014);
People v. Corbin, 312 Mich. App. 352, 371-73, 880 N.W.2d 2 (2015); State v. Rey, 905
N.W.2d 490, 496-97 (Minn. 2018); State v. Clapper, 273 Neb. 750, 755-59, 732 N.W.2d
657 (2007); State v. Martinez, 392 N.J. Super. 307, 315-18, 920 A.2d 715 (2007); People
v. Horne, 97 N.Y.2d 404, 414-15, 740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); State v.
Deslaurier, 277 Or. App. 288, 295, 371 P.3d 505 (2016); State v. Kinneman, 155 Wash.
2d 272, 282, 119 P.3d 350 (2005).

We recognize that some legal scholars believe the United States Supreme Court
intimated in its opinion in Southern Union Co. v. United States, 567 U.S. 343, 132 S. Ct.
2344, 183 L. Ed. 2d 318 (2012), that it might extend the Sixth Amendment right to a jury
trial on the issue of criminal restitution. We do not hold that belief. In Southern Union,
the United States Supreme Court reviewed a state statute that imposed a maximum
criminal fine for each day that the defendant was in violation. Under those circumstances,
the Supreme Court found that a jury was needed to determine how many days the
violation had occurred. 567 U.S. at 347-50. Of note, Southern Union explains that
Apprendi prohibits "judicial factfinding that enlarges the maximum punishment a
defendant faces beyond what the jury's verdict or the defendant's admissions allow." 567
U.S. at 352. Of course, as explained above, there is a substantial difference between
criminal fines paid to the government and restitution paid to reimburse victims.

13
 Furthermore, several United States Circuit Courts have concluded that Southern
Union does not extend Apprendi and its progeny to restitution. Recently, in Vega-
Martinez, which was decided earlier this year, the First Circuit held that because
restitution under the federal Mandatory Victims Restitution Act (MVRA), 18 U.S.C.
§ 3663A, has no statutory maximum amount and instead tasks district courts with
determining the factual amount of loss, Apprendi does not apply. Vega-Martinez, 949
F.3d at 54-55; see also Bengis, 783 F.3d at 412 (Under the MVRA, "a judge cannot find
facts that would cause the amount to exceed a prescribed statutory maximum."). In
reaching this conclusion, the First Circuit agreed with several other Circuit Courts that
had found that Southern Union "does not overrule their previous holdings that Apprendi
does not apply to restitution calculations." Vega-Martinez, 949 F.3d at 55 (citing United
States v. Sawyer, 825 F.3d 287, 297 [6th Cir. 2016]); United States v. Thunderhawk, 799
F.3d 1203, 1209 (8th Cir. 2015); Bengis, 783 F.3d at 412-13; Rosbottom, 763 F.3d at 420;
United States v. Green, 722 F.3d 1146, 1149-50 (9th Cir. 2013); United States v. Wolfe,
701 F.3d 1206, 1216-17 (7th Cir. 2012); Day, 700 F.3d at 732.

In Green, the United States Court of Appeals for the Ninth Circuit found:

"[I]t's not even clear that restitution's a form of punishment. We've held in some contexts
that 'restitution under the MVRA is punishment.'" United States v. Dubose, 146 F.3d
1141, 1145 (9th Cir. 1998); see United States v. Ballek, 170 F.3d 871, 876 (9th Cir.
1999). But in other contexts, we've held it's not. See United States v. Phillips, 704 F.3d
754, 771 (9th Cir. 2012) ('[F]orfeiture and restitution serve entirely distinct purposes:
"Congress conceived of forfeiture as punishment . . . . The purpose of restitution . . . ,
however, is not to punish the defendant, but to make the victim whole again."' (quoting
United States v. Newman, 659 F.3d 1235, 1241 [9th Cir. 2011]); Gordon, 393 F.3d at
1052 n.6 ('[T]he MVRA's purpose is to make the victims whole; conversely, the
Sentencing Guidelines serve a punitive purpose.'). Sometimes we've held it's a hybrid,
with 'both compensatory and penal purposes.' United States v. Rich, 603 F.3d 722, 729
(9th Cir. 2010). Even if Apprendi covers all forms of punishment, restitution's not

14
 'clearly' punishment, so we can't rely on Southern Union to overrule our restitution
precedents." 722 F.3d at 1150.

The Ninth Circuit also found it significant in Green that the MVRA does not have
a statutory maximum. Rather, restitution is "pegged to the amount of the victim's loss. A
judge cannot exceed the non-existent statutory maximum for restitution no matter what
facts he finds, so Apprendi's not implicated." 722 F.3d at 1150. Likewise, as discussed
above, the Kansas restitution scheme does not have either a statutory maximum or
minimum. So, like their federal counterparts, a Kansas district judge cannot exceed a
statutory maximum—or statutory minimum—that does not exist.

In Day, the United States Court of Appeals for the Fourth Circuit also rejected the
defendant's claim that Southern Union compelled a finding that the Apprendi rule should
be extended to orders of restitution. 700 F.3d at 731. In Day, the Fourth Circuit found:

"Prior to Southern Union, every circuit to consider whether Apprendi applies to
restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st
Cir.2006) ('[L]ike all of the other circuits to consider this question, we conclude that
[Apprendi does] not bar judges from finding the facts necessary to impose a restitution
order.'). Day argues that we should break ranks with these prior decisions in light of
Southern Union and apply Apprendi to restitution because it is 'similar' to a criminal fine.
"We decline to take Day's suggested course. As an initial matter, we note that
Southern Union does not discuss restitution, let alone hold that Apprendi should apply to
it. Instead, far from demanding a change in tack, the logic of Southern Union actually
reinforces the correctness of the uniform rule adopted in the federal courts to date. That
is, Southern Union makes clear that Apprendi requires a jury determination regarding any
fact that 'increases the penalty for a crime beyond the prescribed statutory maximum.'
[Citations omitted.] Thus, in Southern Union itself, the Apprendi issue was triggered by
the fact that the district court imposed a fine in excess of the statutory maximum that
applied in that case. [Citation omitted.]
"Critically, however, there is no prescribed statutory maximum in the restitution
context; the amount of restitution that a court may order is instead indeterminate and

15
 varies based on the amount of damage and injury caused by the offense. [Citation
omitted.] As a consequence, the rule of Apprendi is simply not implicated to begin with
by a trial court's entry of restitution." Day, 700 F.3d at 732.

We find that the holding in Huff is consistent with federal and state court decisions
from across the United States. Furthermore, for nearly six years, district courts and panels
of this court have followed the holding in Huff. See Arnett, 2018 WL 2072804, at *2;
Patterson, 2017 WL 3207149, at *8 (since restitution does not implicate Apprendi, the
court found no reason to review the issue for the first time on appeal); State v. Bradwell,
No. 115,153, 2016 WL 7178771, at *4 (Kan. App. 2016) (restitution is not punishment
but is restorative in nature); State v. Pister, No. 113,752, 2016 WL 4736619, at *7 (Kan.
App. 2016), rev. denied 306 Kan. 1328 (2017); and State v. Jones, No. 113,044, 2016
WL 852865, at *9 (Kan. App. 2016), rev. granted 307 Kan. 991 (2017). Huff has also
been cited with approval by other jurisdictions. See Deslaurier, 277 Or. App. at 295 n.2
(Oregon Court of Appeals citing Huff in support of conclusion that the imposition of
restitution is unlike the circumstances in Apprendi and Southern Union); Foumai, 2018
WL 495679, at *4 (Hawaii Court of Appeals citing Huff in concluding that Apprendi does
not apply to an order of restitution).

Despite Robison's claim that K.S.A. 2017 Supp. 21-6604(b)(1) increases the
statutory minimum penalty, we find that it does not require a district judge to award the
full amount of damage or loss. See State v. Meeks, 307 Kan. 813, 821, 415 P.3d 400
(2018) (affirming restitution order that was less than the loss sustained by the victims as a
result of the theft of the vehicle). In fact, under the plain language of K.S.A. 2017 Supp.
21-6604(b)(1), a district judge has the authority to impose no restitution if it "finds
compelling circumstances which would render a plan of restitution unworkable." We note
that this is also true under K.S.A. 2017 Supp. 21-6607(c)(2). We thus conclude that
Alleyne is not applicable because the Kansas restitution statutes do not include statutory
minimums and, as such, they cannot be increased.

16
 In summary, we find that the statutes governing restitution in Kansas impose
neither mandatory minimum amounts nor mandatory maximum amounts. See K.S.A.
2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2). So they do not trigger the
concerns expressed by the United States Supreme Court in Apprendi or Alleyne. Thus, we
conclude that the district court's imposition of restitution in this case did not violate
Robison's Sixth Amendment right to a trial by jury.

Award of Restitution to Insurance Carrier

Robison also contends that the district court erred in awarding restitution to an
insurance company. He divides this argument into two parts. Initially, he argues that
under K.S.A. 2017 Supp. 21-6604, an insurance company cannot receive restitution for
damages caused by a defendant's crime. Next, he argues that even if an insurance
company can receive restitution under the Kansas restitution statutes, the damage or loss
to the insurance carrier in this case has not been established. We find neither argument to
be persuasive.

We exercise unlimited review over that legal question because it requires
interpreting the restitution statutes. State v. Dexter, 276 Kan. 909, Syl. ¶ 2, 80 P.3d 1125
(2003). Robison acknowledges that the Kansas Supreme Court has held that a district
court may award restitution to an insurance carrier. State v. Beechum, 251 Kan. 194, Syl.
¶ 3, 833 P.2d 988 (1992). Similarly, panels of this court have found that an "aggrieved
party" under the restitution statutes includes an insurance company paying claims under a
crime victim's policy. See State v. Hand, 45 Kan. App. 2d 898, Syl. ¶ 3, 257 P.3d 780
(2011), rev'd on other grounds 297 Kan. 734, 304 P.3d 1234 (2013); State v. Jones, No.
119,470, 2019 WL 2554115, at * 2 (Kan. App. 2019) (unpublished opinion); State v.
Blaylock, No. 114,789, 2017 WL 839522, at *1-2 (Kan. App. 2017) (unpublished
opinion). Furthermore, our Supreme Court found that the language in K.S.A. 1991 Supp.
21-6607(c)(2) regarding the payment of restitution to an "aggrieved party" for damage

17
caused by the criminal act includes insurance companies. Beechum, 251 Kan. 194, Syl. ¶
3.

Despite Robison's arguments to the contrary, we find that the rationale in Beechum
and the other cases cited above applies equally to restitution ordered under K.S.A. 2017
Supp. 21-6604. Again, this court has interpreted the two restitution provisions to have the
same meaning. Miller, 51 Kan. App. 2d at 872. Also, Robison offers no reason why the
Kansas Legislature would have wanted to limit insurance carriers from receiving
compensation for their losses as a condition of probation. Because we find that both
statutes allow insurance companies to receive restitution, Robison's argument fails.

Nevertheless, Robison argues that even if insurance companies can receive
restitution under K.S.A. 2017 Supp. 21-6604(b)(1), the State did not establish that the
insurance carrier in this case suffered any damage or loss as a result of his crime. We
review the amount of restitution awarded for abuse of discretion. A district court abuses
its discretion if its decision is based on legal or factual error, or if no reasonable person
would agree with its decision. So, the district court's finding of a causal link between the
defendant's crime and the victim's loss must be supported by substantial evidence. State v.
Shank, 304 Kan. 89, 92-93, 369 P.3d 322 (2016).

In addition, Robison argues that "while the State put on evidence of value—
$2,648.56—it failed to put on any evidence that a loss of that value occurred." Yet
Robison does not suggest the insurance carrier's losses were less than the $2,648.56 the
district court ordered. We also find nothing in the record to suggest that the insurance
carrier received a windfall when the district court ordered that it be reimbursed for the
amount it had paid to cover the officer's medical bills, and it is undisputed that these bills
resulted from the treatment the officer received after being injured by Robison. Thus, we
find that the district court did not abuse its discretion in ordering Robison to pay
$2,648.56 in restitution to the workers compensation insurance carrier.

18
 Finally, Robison briefly argues that the insurance company had to make the claim
before the district court could order it to be reimbursed for the amount of medical
expenses paid on behalf of Corporal Cutright. Again, we exercise unlimited review over
this legal question because it involves the interpretation of the restitution statutes. Dexter,
276 Kan. 909, Syl. ¶ 2. Moreover, we note that two panels of this court have rejected
similar arguments because the restitution statutes do not require the person or entity
incurring the damage or loss to request restitution. Instead, the State can make the request
for the aggrieved party. See Jones, 2019 WL 2554115, at *2; State v. Jones, No. 106,750,
2012 WL 4121119, at *4 (Kan. App. 2012) (unpublished opinion). We are persuaded by
the analysis in those opinions. Consequently, we conclude that Robison's argument fails
for the same reason, and we find that the district court's restitution judgment should be
affirmed.

Affirmed.

***
LEBEN, J., dissenting: We treasure and zealously protect our right to a jury trial.
It's enshrined for both civil and criminal cases in our state and federal constitutions. Yet
there's a big loophole in the protection of those rights—and that loophole is the restitution
order in a criminal case.

These orders are often made in an almost perfunctory hearing after the defendant
has, in all other respects, been fully sentenced. Prosecutors and defendants alike often
focus on the big-picture issues: Should the defendant plead guilty? Can some charges be
dismissed or reduced? How much time will the defendant have to serve in jail? In many
cases, restitution is addressed only after those questions have been answered. And for an
indigent defendant, it may not seem like an important issue at the time—the defendant
who's going to prison won't be making any payments any time soon, anyway.

19
 But constitutional rights don't go away just because we're not paying attention to
them. Courts and judges still have a duty to protect them; if a defendant is to waive a
constitutional right, we must first tell the defendant about it.

In the case before us today, Robert James Robison III pleaded no contest to battery
of a law enforcement officer. At sentencing, with no jury proceedings, a judge found that
Robison's crime had caused $2,548.56 in damages to an insurance company and ordered
that Robison pay restitution in that amount. Neither the document initially filed to charge
Robison with the crime nor the plea agreement he and the prosecutor entered into
mentioned those damages.

One could argue that there's not much at stake here, only a little over $2,500. But
that's not relevant when a restitution award is entered as part of a criminal sentence (and
many restitution awards are much larger). Robison says that the Sixth Amendment to the
United States Constitution, which requires juries in criminal cases, provides him a right
to have a jury decide restitution. Text, history, and precedent convince me that it does.
And if not, then Section 5 of the Kansas Constitution Bill of Rights does. Because
Robison had a right to have a jury decide restitution, I would vacate the restitution award
against him.

The Sixth Amendment Claim

The Sixth Amendment provides a right to a jury trial in all criminal prosecutions.
The rule from Apprendi v. New Jersey enforces that right: "[A]ny fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." 530 U.S 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). Robison contends that the Kansas restitution statutes, K.S.A. 2017
Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2), violate that rule. As I'll
explain, there are several steps involved in the analysis, but my colleagues disagree with

20
Robison for two reasons: (1) that restitution isn't punishment and (2) that the statutes
don't increase the statutory maximum or statutory minimum sentence for Robison's
crime. I will address those reasons in order, covering the applicable Sixth Amendment
principles along the way.

The Sixth Amendment applies to restitution orders, so we must apply Apprendi.

The claim that restitution is nonpunitive—and thus not covered by the Sixth
Amendment—is undercut by text, history, and precedent. The text of the Sixth
Amendment provides a right to a jury trial "[i]n all criminal prosecutions." So we must
determine whether restitution is part of the "criminal prosecution."

Restitution is imposed after a criminal conviction and is part of the defendant's
sentence. State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011). Its purposes
include deterring future crime and rehabilitating the defendant. State v. Applegate, 266
Kan. 1072, Syl. ¶ 2, 976 P.2d 936 (1999). Those are punitive objectives; they are two of
the rationales the government may use to justify a form of punishment under the Cruel
and Unusual Punishment Clause of the Eighth Amendment of the United States
Constitution. Hall v. Florida, 572 U.S. 701, 708, 134 S. Ct. 1986, 188 L. Ed. 2d 1007
(2014). And the United States Supreme Court often describes restitution awarded under
federal statutes as a form of punishment. Paroline v. United States, 572 U.S. 434, 456,
134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014) (collecting cases). Those statutes "implicate[]
'the prosecutorial powers of government.'" 572 U.S. at 456. Nothing about restitution
under our Kansas statutes justifies treating it any differently. Restitution implicates the
Sixth Amendment because it is part of the defendant's "criminal prosecution."

That conclusion is unaffected by the observation that restitution also provides
compensation for crime victims. It's true that one purpose restitution serves is to
compensate victims for damage caused by the crime. But it also serves punitive purposes

21
of deterrence and rehabilitation. Applegate, 266 Kan. 1072, Syl. ¶ 2. And it is part of the
defendant's sentence after a criminal conviction. Restitution's compensatory purpose
doesn't erase these punitive attributes.

They exist no matter how creatively courts like ours describe restitution. The
majority prefers to call restitution "a form of restorative justice," slip op. at 11, a name
used in only one other Kansas case to describe restitution. State v. Brown, No. 120,590,
2020 WL 1897361, at *9 (Kan. App. 2020) (unpublished opinion). Yet in the very same
paragraph, the majority cites a dictionary definition and a case that acknowledge
restitution's criminal characteristics. However labelled, restitution's criminal
characteristics make it a part of the defendant's criminal prosecution.

The nonpunishment view is even harder to defend when you consider the size of
restitution awards and the consequences of not paying them. A search of federal cases
returns decisions from every circuit upholding multi-million-dollar restitution awards.
E.g., United States v. Bikundi, 926 F.3d 761, 790-92 (D.C. Cir. 2019) ($80.6 million);
United States v. Moreland, 622 F.3d 1147, 1170-73 (9th Cir. 2010) ($36 million); United
States v. Lewis, 557 F.3d 601, 615 (8th Cir. 2009) ($39 million). A similar search of
Kansas cases produces awards in the hundreds of thousands of dollars. State v. McAnally,
No. 119,133, 2019 WL 3367902 (Kan. App. 2019) (unpublished opinion) ($789,282);
State v. Crowell, No. 116,841, 2018 WL 1352534 (Kan. App.) (unpublished opinion)
($202,552), rev. denied 308 Kan. 1597 (2018); State v. Huff, 50 Kan. App. 2d 1094,
1096, 1104, 336 P.3d 897 (2014) ($105,000).

Keep in mind that if any of the victims who received restitution in those cases had
sued for civil damages, a jury-trial right would have kicked in. The defendants in that
civil case could invoke their right to have a jury decide whether their actions caused
damages, and if so, how much. Kan. Const. Bill of Rights § 5; K.S.A. 2017 Supp. 60-
238; State v. Love, 305 Kan. 716, 735-36, 387 P.3d 820 (2017). Not so in a criminal case,

22
where the State can obtain a jury-free damages award for the victim—and that restitution
award is enforceable as a civil judgment too. K.S.A. 2017 Supp. 21-6604(b)(2); K.S.A.
2017 Supp. 60-2401.

The lack of a jury-trial right in a criminal case is even more anomalous when you
realize that the consequences of not paying criminal restitution are more severe than not
paying a civil judgment. For many felonies, the district court can indefinitely extend
probation until restitution is fully paid. K.S.A. 2017 Supp. 21-6608(c)(7). The court can
even do so without holding a hearing. State v. Gordon, 275 Kan. 393, 406-07, 66 P.3d
903 (2003). So the defendant could end up on probation for years, subject to having the
underlying prison sentence imposed for all manner of potential violations. And with the
felony sentence still in place through continued probation, the felony defendant also
would be denied the right to vote, hold public office, and serve on a jury. K.S.A. 2017
Supp. 21-6613(a)-(b). These consequences, with plenty of punitive attributes, show that
restitution is part of the "criminal prosecution" to which the Sixth Amendment jury-trial
right attaches.

So does history, the touchstone of any Apprendi analysis. That analysis is
"informed by the historical role of the jury at common law." Oregon v. Ice, 555 U.S. 160,
170, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). So we must consider "whether the finding
of a particular fact was understood as within 'the domain of the jury . . . by those who
framed the Bill of Rights.'" 555 U.S. at 168.

Most judges and lawyers are not historians by training; I'm in that group. So
there's always a risk that we'll misread history in some way. Here, though, the historical
role of juries in finding restitution seems pretty well established. The earliest examples of
restitution in England required jury findings. In a victim-initiated prosecution called an
appeal of felony, a larceny victim could retake stolen property by identifying it in the
complaint and having the jury determine who owned it. Note, Guarding the Rights of the

23
Accused and Accuser: The Jury's Role in Awarding Criminal Restitution Under the Sixth
Amendment, 51 Am. Crim. L. Rev. 463, 472 (2014). Larceny victims could likewise
recover stolen property in an indictment of felony, a prosecution brought by the Crown,
by filing a writ of restitution that listed the property in the indictment. 51 Am. Crim. L.
Rev. at 473-74; State v. Ragland, 171 Kan. 530, 233 P.2d 740 (1951). American courts
and colonial statutes followed the English tradition, allowing restitution for theft offenses
only if the stolen property was described in the indictment and the jury made a special
finding. 51 Am. Crim. L. Rev. at 474-75. The claim that the Sixth Amendment doesn't
apply to restitution conflicts with this historical evidence.

It also conflicts with precedent. In Southern Union Co. v. United States, 567 U.S.
343, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), the United States Supreme Court applied
Apprendi to criminal fines. It did so because criminal fines are no different from other
punishments subject to the Sixth Amendment:

"Apprendi's 'core concern' is to reserve to the jury 'the determination of facts that warrant
punishment for a specific statutory offense.' That concern applies whether the sentence is
a criminal fine or imprisonment or death. Criminal fines, like these other forms of
punishment, are penalties inflicted by the sovereign for the commission of offenses. . . .
In stating Apprendi's rule, we have never distinguished one form of punishment from
another. Instead, our decisions broadly prohibit judicial factfinding that increases
maximum criminal 'sentence[s],' 'penalties,' or 'punishment[s]'—terms that each
undeniably embrace fines. [Citations omitted.]" 567 U.S. at 349-50.

In short, the Apprendi rule applied to criminal fines because they were indistinguishable
from other punishments subject to the rule.

So too with restitution. Like a criminal fine, restitution is a penalty inflicted by the
government for committing an offense. There is no meaningful difference between fines
and restitution that would justify the Sixth Amendment applying to one and not the other.

24
To be sure, you pay them to different actors—restitution to a victim, fines to the
government. But that's a distinction without a constitutional difference, as the United
States Supreme Court recognized in Paroline.

The Paroline Court rejected an interpretation of a federal restitution statute that,
among other things, potentially violated the Eighth Amendment's Excessive Fines
Clause. 572 U.S. at 455-56. That was the case, the Court explained, because although
restitution is paid to a victim, the government may impose it only after a criminal
conviction. So despite the difference in who receives payment, the Excessive Fines
Clause still potentially applied to restitution because, like a fine, it "implicates 'the
prosecutorial powers of government." 572 U.S. at 456. Thus, who receives payment is an
insufficient basis for treating restitution and fines differently under the Sixth Amendment.

To recap, the text of the Sixth Amendment, history, and precedent support a
holding that the Sixth Amendment—and thus the Apprendi rule—applies to restitution. I
must concede, though, that the majority cites a slew of federal and state cases rejecting
the claim that Apprendi applies to restitution. Three things stand out about these cases,
and they lead me to conclude that the cases have limited precedential value.

First, the cases reject Apprendi-based restitution claims for different reasons, and
those reasons aren't very consistent. Some do so because restitution isn't punishment at
all. Others do so because it doesn't increase the statutory maximum or minimum. Still
others rely on both rationales. And while courts uniformly hold that restitution statutes
don't violate Apprendi, they are split on whether restitution is punishment—a pretty
important matter in deciding whether the Sixth Amendment (and, with it, Apprendi)
applies.

Take the Third and Sixth Circuits. Both agree that restitution is a form of
punishment. United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) (en banc); United

25
States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). So do three states the majority
mentions. People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal. Rptr. 3d 861, 404 P.3d 1209
(2017); State v. Clapper, 273 Neb. 750, 757, 732 N.W.2d 657 (2007); State v. Kinneman,
155 Wash. 2d 272, 277-81, 119 P.3d 350 (2005). In three others, the courts made no
comment on whether restitution is punishment. State v. Deslaurier, 277 Or. App. 288,
295, 371 P.3d 505 (2016); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007); State v.
Foumai, No. CAAP-XX-XXXXXXX, 2018 WL 495679, at *4 (Haw. Ct. App. 2018)
(unpublished opinion).

Then there are the courts that treat restitution as punishment in non-Apprendi
contexts. Three federal circuits do that, describing restitution as "part of a criminal
penalty," United States v. Tull-Abreu, 921 F.3d 294, 305 (1st Cir.), cert. denied 140 S. Ct.
424 (2019); having "compensatory and penal" goals, United States v. Ritchie, 858 F.3d
201, 214 (4th Cir. 2017); and "'penal, rather than compensatory,'" United States v.
Puentes, 803 F.3d 597, 609 (11th Cir. 2015). At least two states, in cases not cited by the
majority, similarly subscribe to the punitive view of restitution when no Apprendi issues
are being argued. State v. Kealoha, 142 Haw. 46, 50, 414 P.3d 98 (2018); In re Cody H.,
452 Md. 169, 183, 156 A.3d 823 (2017).

Second, many of the cases are outdated in light of later caselaw developments.
Nine of them were decided six or more years before the Court's Southern Union opinion.
Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006); Leahy, 438 F.3d 328; United
States v. Carruth, 418 F.3d 900 (8th Cir. 2005); United States v. George, 403 F.3d 470
(7th Cir. 2005); Smith, 181 P.3d at 327; Clapper, 273 Neb. at 757; State v. Martinez, 392
N.J. Super. 307, 315-18, 920 A.2d 715 (2007); People v. Horne, 97 N.Y.2d 404, 414-15,
740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); Kinneman, 155 Wash. 2d at 277-81. So they
don't account for the closely analogous application of the Apprendi rule to criminal fines
in Southern Union.

26
 Third, even the newer cases that do address Southern Union make little effort to
distinguish it—or to explain why restitution isn't punishment. Like the rest, they mostly
cite to other cases in which their court or another had already classified restitution as
nonpunitive.

Rather than follow their lead, we should analyze the issue anew and recognize that
restitution is part of the "criminal prosecution." Courts award it in a criminal proceeding
as part of a criminal sentence. Imposing it serves punitive aims and not paying it has
punitive consequences. For those reasons, the Sixth Amendment applies to restitution
awards. So we must apply Apprendi.

The Kansas restitution scheme violates the Apprendi rule.

Now we must figure out whether the Kansas restitution statutes violate the
Apprendi rule. The majority says they don't because these statutes increase neither the
statutory maximum nor statutory minimum sentence. Although I agree that the statutes
don't increase the statutory minimum, I would hold that they increase the statutory
maximum.

The meaning of that phrase is clear from the United States Supreme Court's
Apprendi cases. In Blakely v. Washington, the Court provided a simple definition of the
term that's worth repeating here:

"[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. In other words, the relevant 'statutory maximum' is not the maximum sentence
a judge may impose after finding additional facts, but the maximum [a judge] may
impose without any additional findings. When a judge inflicts punishment that the jury's
verdict alone does not allow, the jury has not found all the facts 'which the law makes

27
 essential to the punishment[.] . . .' [Citations omitted.]" Blakely v. Washington, 542 U.S.
296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

So the statutory maximum is the most punishment that a judge could impose without
more findings. The Court continues to apply that definition in its Apprendi cases.
Southern Union, 567 U.S. at 348.

Under Blakely, then, the Kansas restitution scheme increases the statutory
maximum. Unless the jury found that the defendant's crime caused the specific damages
or the defendant stipulated to them in the plea deal, the most restitution that a judge could
award is zero. Yet K.S.A. 2017 Supp. 21-6604(b)(1) and 21-6607(c)(2) allow judges to
award amounts way more than zero in restitution if the judge finds that the crime caused
"damage or loss."

Consider Robison's case. The indictment didn't allege that his crime caused any
damage or loss to the insurance company. Nor did the plea agreement. So when the judge
made a damages finding at sentencing, he ordered more restitution than was authorized
by the plea agreement alone.

The majority counters that there is no statutory maximum for restitution (so our
statutes couldn't impermissibly increase the maximum). Slip op. at 14-15. The argument
goes like this: the maximum value of awardable restitution is indeterminate because it
will vary from case to case based on the damage or loss caused by a crime; so unlike
criminal fines with fixed dollar amounts, there is no statutory maximum for restitution.
But Southern Union forecloses this argument.

Recall that Southern Union extended Apprendi to criminal fines. The statutorily
authorized fine in that case was up to $50,000 for each day a company had violated a
federal environmental statute. The judge-found fact that impermissibly increased the

28
statutory maximum in Southern Union was the length of the violation. Yet the Court
made clear that its holding would apply to any fact used to calculate a fine, including "the
amount of the defendant's gain or the victim's loss." 567 U.S. at 349-50. Whatever fact is
used, juries must "[i]n all such cases, . . . find beyond a reasonable doubt facts that
determine the fine's maximum amount." 567 U.S. at 350.

By the majority's logic, Southern Union was wrongly decided. The maximum fine
in that case was not a fixed number. The fine was up to $50,000 for each day that the
company had violated the environmental statute. The $50,000 number is not the statutory
maximum; it's a variable the court multiplies by the length of the violation. Just as two
crimes may not cause the same amount of damage or loss, two companies may not violate
an environmental statute for the same number of days. So the statutory maximum for the
fine is indeterminate. If there is no statutory maximum for indeterminate penalties, as the
majority suggests, then Southern Union should have come out the other way. It didn't, of
course, because no part of the Court's decision imposed the fixed-amount requirement
read into the decision by the majority here.

The majority's reasoning would also mean that fines calculated using the amount
of the defendant's gain or the victim's loss would be exempt from the Apprendi rule.
Remember that Southern Union said that the rule applies to those fines. 567 U.S. at 349-
50. But like a damage-or-loss figure for restitution, those fines have no constant
maximum because the amount gained by the defendant or lost by the victim from the
crime is variable. And if variable penalties have no statutory maximum, then under the
majority's reasoning, the Apprendi rule shouldn't apply to those fines. Yet we know that's
not right because Southern Union specifically identified those fines as an example of the
kind of penalty to which the Court's holding applied. 567 U.S. at 349-50.

And if Apprendi applies to a fine that's calculated based on the victim's loss, it
should apply to restitution calculated on that same basis. In both cases, a judge-found fact

29
increases the punishment the judge could impose beyond the amount authorized by the
jury verdict or the plea agreement alone. It doesn't matter that the specific dollar amount
of restitution will differ from case to case because the fact that's used to calculate that
amount will always be the same: the amount of damage or loss found to have been caused
by the defendant's crime.

The majority recognizes that "some legal scholars believe," based on Southern
Union, that the Sixth Amendment jury-trial right must also apply to restitution. Slip op. at
13. But that view goes well beyond the legal academy. Two United States Supreme Court
justices, including the author of Southern Union's majority opinion, have expressed
support for the view that there's a right to a jury trial on restitution. Hester v. United
States, 586 U.S. __, 139 S. Ct. 509, 510, 202 L. Ed. 2d 627 (2019) (Gorsuch, J., joined by
Sotomayor, J., dissenting from cert. denial). And years before Southern Union, several
federal circuit judges—and one state supreme court justice—would have held that
restitution statutes violate Apprendi. Leahy, 438 F.3d at 343-44 (McKee, J., concurring in
part and dissenting in part) (joined by four judges); Carruth, 418 F.3d at 905-06 (Bye, J.,
dissenting); Clapper, 273 Neb. at 750 (Connolly, J., dissenting). Academics also support
this position, including the leading treatise on criminal procedure. 6 LaFave, Israel, King
& Kerr, Criminal Procedure, § 26.6(c) (4th ed. 2019).

Before moving to Robison's Section 5 claim, one last point is worth mentioning.
The majority notes that under our state's restitution statutes, a judge may award less than
the amount of "damage or loss" caused by the defendant's crime. Slip op. at 11-12, 16.
That's because a judge can reduce the restitution award from the total loss if "the court
finds compelling circumstances which would render a plan of restitution unworkable."
K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2).

I agree with that interpretation, but it in no way affects my conclusion about the
statutory maximum. If the judge awards any restitution, the statutory maximum has still

30
increased from zero to more than zero. The only way the compelling-circumstances
language could cure the Apprendi violation would be if the judge found that compelling
circumstances justified awarding no restitution. Only then would the statutory maximum
stay at zero. And the maximum didn't stay at zero in Robison's case; the court didn't
apply that exception and instead ordered Robison to pay the full damage-or-loss value.

In sum, the two Kansas statutory provisions dealing with restitution—K.S.A. 2017
Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2)—violate the Apprendi rule by
allowing judges to increase the statutory maximum punishment for an offense beyond
that authorized by the jury's verdict or the plea agreement. The district court, relying on
those provisions, found that Robison's crime caused damages to an insurance company
and ordered him to pay restitution in that amount. Because that violated Robison's Sixth
Amendment jury-trial right, I would vacate the restitution portion of Robison's sentence.

I would not apply the harmless-error rule because the State doesn't raise it. And
even if it had, the error could not have been harmless here because no Kansas law
currently provides a procedure for empaneling a jury to decide restitution. See
Washington v. Recuenco, 548 U.S. 212, 217-18, 126 S. Ct. 2546, 165 L. Ed. 2d 466
(2006); State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010); State v. Kessler, 276 Kan.
202, Syl. ¶ 8, 73 P.3d 761 (2003).

The Section 5 Claim

Robison's jury-trial right can come either from the federal constitution or its
Kansas counterpart. Even if Robison had no jury-trial right under the Sixth Amendment, I
would hold that he had one under Section 5 of the Kansas Constitution Bill of Rights. As
the majority notes, Section 5 protects the jury-trial right as it existed in 1859 when
Kansas ratified its Constitution. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132, 442 P.3d
509 (2019) (plurality opinion); Wheeler v. Caldwell, 68 Kan. 776, 780, 75 P. 1031

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(1904); Ross v. Crawford County Comm'rs, 16 Kan. 411, 418 (1876). If juries decided a
factual issue in 1859, then a statute that allows judges to decide the issue violates Section
5. Hillburn, 309 Kan. at 1133-34.

No one disputes that if Robison had a jury-trial right under Section 5, the
restitution statutes deprived him of that right by allowing a judge to decide the facts
needed to support his restitution award. The issue is whether juries would have decided
those facts in 1859. Robison argues they would have for two reasons. First, he analogizes
restitution to causation and damages in a civil case, issues decided by Kansas juries at
statehood. Second, he cites Kansas Territorial Statutes that purportedly show that juries
also decided restitution in 1859.

The majority rejects Robison's civil-claim analogy by emphasizing restitution's
criminal attributes. Criminal restitution and civil damages, the majority explains, are
separate remedies under Kansas law. After all, a victim can still recover civil damages
after a judge awards restitution, and a judge can still award restitution after the victim has
recovered civil damages. These differences convince the majority that restitution should
not be treated as civil damages under Section 5.

For the majority, restitution is something of a Goldilocks remedy—not too
punitive to trigger the Sixth Amendment, not too compensatory to trigger Section 5. No,
the majority says, it's just right.

On the Sixth Amendment claim, the majority says restitution is victim
compensation, not punishment. It describes restitution with language that courts use to
describe damages in a civil case. Compare slip op. at 11 ("[Restitution] is intended to
restore the victims . . . to the position they found themselves in prior to a defendant's
commission of the offense that caused the injury or damage."), with Burnette v. Eubanks,
308 Kan. 838, Syl. ¶ 4, 425 P.3d 343 (2018) ("The purpose in awarding damages is to

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make a party whole by restoring that party to the position the party was in prior to the
injury."). Now on the Section 5 claim, the majority plays up restitution's criminal
characteristics.

In theory, perhaps some monetary award could be just right, neither fish nor fowl,
and avoid scrutiny under both the Sixth Amendment and Section 5. But that can't be the
case here. If we focus on restitution as compensation for loss, not punishment, we know
that a victim can enforce a restitution award just like a civil judgment. K.S.A. 2017 Supp.
21-6604(b)(2); K.S.A. 60-2401. And although a restitution award will not bar the victim
from later seeking civil damages, it will reduce the victim's recovery in the civil case by
"the amount of any restitution paid." K.S.A. 60-4304(b); Applegate, 266 Kan. at 1078-79.
So even if restitution is somehow treated as nonpunitive, it still works just like causation
and damages in a civil case. Because juries decided those issues in Kansas in 1859, the
restitution statutes necessarily infringe on Section 5's right to jury trial by allowing judges
to decide those issues.

Similarly, if we focus on the punishment side instead of compensation for loss,
there's more to Section 5 than its application to the recovery of civil damages or their
equivalent: the Kansas Supreme Court has made clear that Section 5 applies in criminal
cases too. Love, 305 Kan. at 736. For example, it's well-established that juries must
decide guilt in a criminal case, though they need not decide legal issues like whether to
instruct a jury on a lesser-included offense or whether one offense is a lesser-included
offense of another. 305 Kan. at 736. Here, whether a defendant's crime caused damage or
loss to a victim is an issue of fact. Hall, 297 Kan. at 712. The question, then, is whether
juries would have had to find that fact in 1859.

In 1859, juries in criminal cases involving theft offenses had to make a factual
finding about the value of the stolen property. Kan. Terr. Stat. 1859, ch. 27, §219; ch. 28,
§§ 72-74, 82-88, 91. The jury's property valuation affected the severity of the defendant's

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punishment—the punishments were more severe for property worth $20 or more (grand
larceny) than for property worth less than $20 (petty larceny). Kan. Terr. Stat. 1859, ch.
28, §§ 72-74. Once the jury had valued the property, the judge could impose a
punishment authorized for that type of larceny (unless the jury had specified a
punishment in the verdict). Kan. Terr. Stat. 1859, ch. 27, §§ 219-221.

The property-valuation finding for theft offenses is equivalent to the damage-or-
loss finding for restitution. As the majority puts it, the valuation "affected the severity
level of the offense." Slip op. at 8. Juries had to determine how much the property was
worth because that finding "affected the appropriate sentence to be imposed on the
defendant." Slip op. at 9. So too with a damage-or-loss finding for restitution. That
finding affects the severity of the defendant's sentence. If the crime caused no damage or
loss, the judge cannot award any restitution; otherwise, the judge can award up to the full
damage-or-loss amount. Because juries would have made the damage-or-loss finding in
1859, I would hold that Section 5 requires that they still make that finding today.

The majority concludes otherwise because Robison has not shown that juries
decided restitution in 1859. That asks the wrong question. The key question isn't whether
judges awarded restitution in Kansas in 1859, but whether juries would have found the
facts needed to support a restitution award at that time. Juries, not judges, in 1859 would
have decided whether the defendant's crime caused damage or loss to a victim. On that
basis, I would hold that Robison had a right to a jury trial under Section 5.

In sum, Robison had a right to have a jury determine the amount of the damage or
loss he caused to any victim of his crime. That right was not honored. I would vacate the
restitution award.

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