Review of the judgment of the Court of Appeals in an unpublished opinion filed December 23, 2010. Appeal from Shawnee District Court; MARK S. BRAUN, judge.
Judgment of the Court of Appeals affirming in part and dismissing in part the appeal from the district court is affirmed. Judgment of the district court is affirmed.
1. Because restitution constitutes a part of a criminal defendant's sentence, its amount can be set only by a district judge in open court with the defendant present. Until any applicable restitution amount is decided, a defendant's sentencing is not complete.
2. A sentencing hearing may be continued or bifurcated so that restitution is ordered at one setting and the amount decided at a later setting. In such instances, a district judge should specifically order the continuance or bifurcation.
3. A defendant may waive his or her right to be present in open court when a district judge sets the amount of restitution as part of a continued sentencing hearing.
4. In a criminal matter, a notice of appeal that seeks review of a conviction and a sentencing yet to be completed lies dormant until the final judgment including the complete sentence is pronounced from the bench, at which point the notice of appeal becomes effective to endow the appellate court with subject matter jurisdiction.
5. Under the facts of this case, the relocation expenses of the victim of attempted rape can fairly be regarded as caused by defendant's crime, and substantial competent evidence supported the district judge's causation determination and restitution award under K.S.A. 21-4603d(b)(1).
6. Defendant's argument that the use of his criminal history for sentencing purposes, without proving his criminal history to his jury beyond a reasonable doubt, increased his maximum possible penalty for his primary offense in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is without merit.
Jennifer E. Bazin, of Law Office of Carol Ruth Bonebrake, PA, of Topeka, was on the brief for appellant.
Jason E. Geier, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were on the brief for appellee.
[298 Kan. 979] OPINION
Anthony Earl Hall pleaded guilty to attempted rape,
attempted second-degree murder, and aiding a felon. At his sentencing hearing,
the district court judge sentenced Hall to a term of imprisonment and ordered
restitution to remain open for 30 days. At a later hearing, the district court
judge ordered Hall to pay more than $32,000 in restitution, including $469 for
relocation expenses incurred by the victim of the attempted rape.
Hall appealed the district court's order of restitution on two grounds. First, he argued that the district court lacked subject matter jurisdiction to impose restitution after the first hearing. Second, and in the alternative, he argued that the victim's relocation expenses were not caused by his crime and were improper under K.S.A. 21-4603d(b)(1). In State v. Hall, 243 P.3d 1113, 2010 WL 5490727, at *2-6 (Kan. App. 2010) (unpublished opinion), a panel of our Court of Appeals affirmed the restitution order. Hall also unsuccessfully appealed the judge's use of his criminal history in calculating his sentence. The Court of Appeals rejected Hall's argument under State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). 243 P.3d 1113, 2010 WL 5490727, at *6.
Hall petitioned this court for review of his restitution arguments and the Ivory issue.
Factual and Procedural Background
In late 2006, Hall, along with his two brothers, Christopher and Mike Hall, committed several violent crimes in Topeka. The State filed three cases against Hall. Under a plea agreement, Hall pleaded guilty to charges in all three cases in exchange for dismissal [298 Kan. 980] of other charged conduct. A consolidated appeal of the district court's order of restitution followed.
In case 07-CR-332, the State charged Hall with alternative counts of attempted rape and sexual battery based on an attack on S.G. in November 2006. S.G. had just finished doing laundry in her apartment complex's laundry room when, as she was walking up the steps from the room, she heard someone approach from behind her. She turned around and saw Hall, a resident and maintenance worker at the complex, standing naked with an erection. Hall grabbed S.G. around her neck, covered her mouth, and pulled her back down the stairs. Hall told S.G., " Bitch you fuckin['] scream and I will fuck you up." Fearing for her life, S.G. nevertheless screamed and resisted. Hall smashed S.G.'s head against the wall twice and attempted to pull down her pants. S.G. was able to break free and run from the apartment complex. Hall ran in the opposite direction.
The charges in case 07-CR-748 were based on a Christmas Day 2006 attack carried out by Hall and his two brothers. Armed with two " giant hammer[s]" and a BB gun, the three entered the apartment of Michael Delaney and struck him and his girlfriend, Jennifer Hughes, multiple times. Delaney suffered a depressed skull fracture,
subdural hematoma, and hemorrhaging. He was airlifted to a hospital in Kansas City. Hughes suffered three skull fractures from a blow to the back of her head. She required plates in her two broken hands--defensive injuries she received while trying to protect her head during the attack. The State charged Hall with aggravated robbery and two counts of attempted second-degree murder with alternative charges of aggravated battery.
In case 08-CR-568, Hall was charged with aiding a felon after he helped his brother Christopher dispose of a 15-year-old female's body in a field near Lake Shawnee. Hall helped Christopher load the body into a car. Once Hall and Christopher reached the field, Hall poured gasoline on the nude body, and Christopher set it on fire. According to the coroner's report, the victim had died as a result of a broken neck and a skull fracture and displayed injuries consistent with being kicked or stomped. A rape kit recovered semen [298 Kan. 981] from the victim's vagina, and a subsequent DNA analysis matched the semen to Christopher.
Hall pleaded guilty to attempted rape, attempted intentional second-degree murder, and aiding a felon. In exchange, the State dismissed all other charges. Hall's plea agreement ...