              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                       Nos. 111,006
                                            111,895

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   MANUEL C. ALCALA,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.
       K.S.A. 2014 Supp. 21-6604(a) does not authorize a district court to impose a no-
contact order in conjunction with a sentence of incarceration.


2.
       The district court's ability to order restitution for damages or loss under K.S.A.
2014 Supp. 21-6604(b)(1) depends on establishment of a causal link between the
defendant's unlawful conduct and the damages. Setting an amount of restitution is within
the district court's discretion, subject to a substantial competent evidence standard of
review on appeal.


3.
       Under K.S.A. 2014 Supp. 21-6604(b)(1), restitution is the rule and a finding that
restitution is unworkable is the exception. It is the defendant's burden to come forward
with evidence regarding an alleged inability to pay restitution.




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        Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed April 24, 2015.
Affirmed in part and vacated in part.


        Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.


        Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: This is a consolidated appeal from two aspects of Manuel C. Alcala's
criminal sentence after he pleaded guilty to first-degree premeditated murder for killing
his estranged wife. He challenges: (1) a no-contact order prohibiting communication
with the victim's family; and (2) a restitution order requiring him to pay attorney fees
incurred by the victim's mother in child in need of care (CINC) proceedings involving the
couple's children and a separate legal action for her to adopt the children. We vacate the
no-contact order and affirm the restitution order.


        We have previously held that no-contact orders such as the one in this case
constitute an illegal sentence because they are probation conditions that cannot be
imposed in conjunction with prison sentences. See State v. Bowen, 299 Kan. 339, 359,
323 P.3d 853 (2014); State v. Plotner, 290 Kan. 774, 782, 235 P.3d 417 (2010). The State
concedes the error and agrees the no-contact order must be vacated.


        As to the restitution order, we affirm the district court. We hold that a sufficient
causal link exists between Alcala's unlawful conduct and the attorney fees in the CINC
proceedings and the adoption case. We hold further that the district court properly
rejected the claim that any restitution plan was unworkable because Alcala failed to meet

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his burden of proof on that issue by presenting evidence regarding his inability to pay
upon release.


                        FACTUAL AND PROCEDURAL BACKGROUND

       Alcala pleaded guilty to first-degree premeditated murder for killing his wife,
Ashley Alcala, with whom he was in the process of divorce. The district court sentenced
him to life imprisonment without parole for 25 years and ordered Alcala not to have
contact with Ashley's family.


       The State subsequently filed a notice of intent to seek restitution on behalf of
Ashley's mother, Karren Bacon. The State wanted Alcala to reimburse Bacon for
Ashley's funeral expenses and for attorney fees Bacon incurred in the CINC proceedings
involving the couple's children, finalizing Bacon's adoption of those children, and
probating Ashley's estate.


       At the restitution hearing, the State put on testimony from Bacon and her attorney,
James Willard. Bacon testified she hired Willard to help her retain custody of the children
when the CINC proceedings began. Willard testified that Alcala's brother and sister-in-
law initially attempted to gain custody of the children and that his representation was
necessary to ensure Bacon got custody. Willard also described his services and fees in the
CINC, adoption, and probate cases. Alcala offered no evidence but requested the court
take judicial notice that he was incarcerated.


       In a motion filed after the hearing, Alcala focused on the fees for the CINC
proceedings, claiming that hiring an attorney was a personal choice Bacon made to
represent her personal interests. And because of this, he argued, the causal connection
with Alcala's crime was too attenuated. Alcala also argued Willard's fees in the CINC

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case were excessive and unnecessary, noting for example that Willard charged for
attending hearings in Alcala's criminal case. In an amended motion, Alcala argued
restitution should be denied as unworkable because he was incarcerated and had no way
to pay and the State had failed to prove he would work, or would be able to work, while
imprisoned.


       The State responded by arguing Alcala's crime, i.e., killing Ashley, directly or
indirectly caused the CINC case, noting Bacon was an "interested party" under state law
in the CINC case, so it was logical and reasonable that Bacon, a nonattorney, would
retain counsel. The State further urged the court to reject Alcala's claim about workability
because he failed to put on evidence supporting a finding that restitution was unworkable,
despite having the burden of proof. The State also contended there was no legal authority
that incarceration alone renders a restitution plan unworkable.


       The district court sided with the State, ordering Alcala to pay restitution to Bacon
totaling $43,230.77. That total broke out as follows: $17,717.22 for funeral and cemetery
expenses; $18,107 for attorney fees in the CINC proceedings; $3,000 for attorney fees for
the adoption; and $4,406.55 for attorney fees and expenses for the estate probate
proceedings. The court specifically found Alcala's acts "did, in fact, cause those expenses
which are declared, by the Court, to be reasonable." The court further held it did not find
exceptional circumstances rendering the restitution plan unworkable and did not
expressly order restitution payable while Alcala is incarcerated. The court partially
enforced the restitution order after it was entered by paying out assets previously seized
from Alcala.


       Alcala timely appealed the no-contact order and the finding that Ashley's murder
caused the attorney fees Bacon incurred in the CINC proceedings and the adoption case.
Alcala does not challenge the reasonableness of the attorney fees awarded in the CINC
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proceedings and adoption case, nor does he challenge the restitution ordered for the
funeral/cemetery and probate expenses.


       Jurisdiction is proper. See K.S.A. 2014 Supp. 22-3601(b)(3) (direct appeal to
Supreme Court when life sentence imposed).


                                THE NO-CONTACT ORDER

       The parties correctly agree that the district court's no-contact order is an illegal
sentence and must be vacated. A no-contact order is a probation condition. It is
inappropriate to combine a no-contact order with a prison sentence because to do so
exceeds a sentencing court's authority under K.S.A. 2014 Supp. 21-6604(a). See Bowen,
299 Kan. at 359 (life sentence and no-contact order inappropriate combination of
dispositions under K.S.A. 21-4603d[a], recodified as K.S.A. 2014 Supp. 21-6604[a]).
"The appropriate remedy is to vacate the no-contact order but leave the remainder of the
sentence intact." 299 Kan. at 359.


       In line with our caselaw, we hold that the no-contact order should be vacated,
while leaving intact the remainder of Alcala's sentence. See Plotner, 290 Kan. at 782;
State v. Post, 279 Kan. 664, 669, 112 P.3d 116 (2005).


                            RESTITUTION FOR ATTORNEY FEES

       Alcala argues the attorney fees for the CINC proceedings and adoption case are
too causally remote from his criminal conduct because they are only "an indirect and
tangential expense related to [the] crime." He also suggests the CINC attorney fees are
not recoverable because they could have been paid through the CINC case. See K.S.A.
2014 Supp. 38-2241(d) (interested party status to any person with whom the child has
resided for a significant period of time within 6 months of filing CINC proceedings);
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K.S.A. 2014 Supp. 38-2205(c) (authorizing district court to appoint attorney for an
interested party with status under K.S.A. 2014 Supp. 38-2241[d]).


       In addition to arguing the causation issue, the State raises an initial preservation
question as to the adoption fees because Alcala failed to challenge them in his amended
motion to the district court after the restitution hearing. The State contends this failure
amounts to an implicit waiver. But this concern does not take into account Alcala's
arguments at the hearing in which he challenged generally all restitution sought by the
State—particularly on the question subject to this appeal—causation. And the district
court in its restitution order found each item of attorney fees was caused by Alcala's
crime. Accordingly, we will consider the fee awards for both the CINC proceedings and
the adoption.


Standard of Review


       In reviewing a district court's restitution award, factual findings underlying the
causal link between the crime and the loss are reviewed for substantial competent
evidence. The restitution amount and the manner in which restitution is to be made are
reviewed for abuse of discretion. State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014)
(quoting State v. Hand, 297 Kan. 734, 736-37, 304 P.3d 1234 [2013]).


Discussion


       K.S.A. 2014 Supp. 21-6604 sets out the dispositions a district court may adjudge
when a person is convicted of a crime, including restitution. K.S.A. 2014 Supp. 21-
6604(b)(1) states:




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               "In addition to or in lieu of any of the [dispositions authorized by subsection (a)],
       the court shall 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."
       (Emphasis added.)


       We consider first Alcala's suggestion that attorney fees in the CINC case should
not qualify for restitution because Bacon could have had court-appointed counsel. This
argument is without merit for at least two reasons. First, Alcala made no showing that
Bacon would have been financially unable to employ an attorney, which is a statutory
prerequisite for court-appointed counsel under the CINC statute. See K.S.A. 2014 Supp.
38-2205(c). He simply makes the conclusory argument that "[s]he could have been
entitled to appointed counsel in the CINC case, negating the fees necessary for a private
attorney." Second, the argument that Bacon could have secured court-appointed counsel
is really an issue regarding the reasonableness of the expenses incurred because
appointed counsel is also entitled to compensation, i.e., this argument concerns the
difference in costs between hired and appointed counsel, rather than a circumstance that
breaks the causal link between the crime and the expenses. But Alcala did not appeal the
district court's determination that the expenses Bacon incurred were reasonable, so we
cannot consider whether the restitution award might have been less had Bacon been
represented by counsel appointed by the CINC court. Accordingly, the controlling
question remains whether Bacon's attorney fees in the CINC proceedings are "damage or
loss caused by" the murder. See K.S.A. 2014 Supp. 21-6604(b)(1).


       Under the statute's causation language, "'"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."'" Hall, 298 Kan. at 990 (quoting State v. Goeller, 276 Kan.
578, 580-81, 77 P.3d 1272 [2003]). But the realities of attributing the consequences of
criminal conduct present a range of possibilities for restitution—some more easily
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resolved than others. For example, losses directly or immediately caused by criminal
conduct, such as injuries to persons or property, are clearly compensable as restitution.
See Goeller, 276 Kan. at 582-83 (causation requirement met in DUI case to compensate
victim for medical bills incurred after collision with intoxicated defendant who drove his
vehicle left of center); State v. Sammons, 276 Kan. 574, 576-77, 78 P.3d 470 (2003)
(restitution for value of tools stolen and not recovered because victim would have use of
the tools but for the theft).


       But the issue presented in this case resides somewhere toward the other end of the
spectrum—where the outcome has not been so clear because the losses were more
tangentially caused by the criminal conduct. Compare Hall, 298 Kan. at 991 (upholding
restitution for sexual assault victim's relocation expenses when defendant lived and
worked in same apartment complex and law enforcement advised victim to move for her
safety); Hand, 297 Kan. at 739-40 (increased insurance premium due to theft claim
against policy); and State v. Beechum, 251 Kan. 194, 202-03, 833 P.2d 988 (1992)
(upholding restitution award for costs of moving murder victim's child to child's other
parent); with State v. Hunziker, 274 Kan. 655, 657-58, 664-68, 56 P.3d 202 (2002)
(discretion abused by awarding victim's attorney fees for advising on court procedures
and preparation of a "restitution booklet" detailing losses caused by vandalism).


       Hall and Beechum are particularly relevant. In Hall, the court found substantial
competent evidence supported a causal link between the attempted rape at the victim's
apartment complex by a resident-employee of that complex and the victim's relocation
expenses, consisting of moving van rental and a security deposit. 298 Kan. at 990-91. The
Hall court concluded the award was supported by evidence that the victim suffered
physical injuries, the attacker worked and resided at the victim's apartment complex, and
police told her to relocate for her safety and to avert possible harm. This court held the


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relocation expenses could "be fairly regarded as caused by [the defendant's] crime of
attempted rape." 298 Kan. at 991.


       In Beechum, the district court awarded restitution to a murder victim's son and the
child's father for airfare to transport the child to the father's home and the father's lost
wages when accompanying the child on the trip. The Beechum court rejected the
defendant's argument that the costs were too tangential, holding:


               "Restitution orders must have limitations. Not all tangential costs incurred as a
       result of a crime should be subject to restitution. . . . Because of [the defendant's] crime,
       the victim's son went to New York to live with his father. The father lost work to
       accompany his son. The expenses incurred resulted from and were caused by [the
       defendant's] crime. The trial court did not abuse its discretion in ordering restitution." 251
       Kan. at 203.


       The attorney fees in Alcala's case present a similar question of tangential costs.
The evidence established some causal connection between the crime and the attorney fees
because, but for the murder, there would have been no CINC or adoption cases. And
Bacon, as the children's grandparent and person with whom the children were placed after
their mother's murder, was a statutory interested party in the CINC proceedings, who was
entitled to participate in the CINC case. See K.S.A. 2014 Supp. 38-2241(c) and (d). On
the other hand, the attorney's services were necessary so Bacon could get custody of the
children to the exclusion of others who sought custody. In other words, though the CINC
case itself was caused by the murder, Bacon's participation may be seen as serving a
personal purpose, in addition to aiding in the children's placement. And as Alcala points
out, the children's interests were represented in the CINC proceedings by guardians ad
litem. See K.S.A. 2014 Supp. 38-2205(a) (directing district court to appoint attorney to
serve as guardian ad litem for children subject to CINC proceedings).


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       As to the CINC proceedings, we hold that the relationship between Alcala's
criminal conduct and the attorney fees is not so tangential as to remove the district court's
discretionary authority to award them as restitution under the statute. See Beechum, 251
Kan. at 203. Alcala's killing of his wife, who was also the mother of his children, set in
motion a foreseeable chain reaction regarding the children's placement. After the murder
Alcala was the children's only living parent, and he was incarcerated for having
committed the crime. A child in need of care proceeding was the obvious next step. See
K.S.A. 2014 Supp. 38-2202 (d)(1) (child in need of care includes person less than 18 who
is without adequate parental care, but not due solely to parent's lack of financial means).


       Once CINC proceedings were initiated, it was reasonable that one or more
interested parties, as that term is defined by law, would participate in the court's
determination of the children's best interests in terms of temporary and permanent
placement. See K.S.A. 2014 Supp. 38-2241. An interested party's need for an attorney
follows from the right to participate in the proceedings and is a recognized incident of
such participation under K.S.A. 2014 Supp. 38-2205(c). The CINC proceedings and the
attorney fees Bacon incurred to participate in the proceedings can be "fairly regarded as
caused by" the murder. See Hall, 298 Kan. at 991. Accordingly, we hold that substantial
competent evidence establishes that the attorney fees in the CINC proceedings were
"caused by the defendant's crime." K.S.A. 2014 Supp. 21-6604(b)(1).


       As to the fees for completing the adoption, we similarly see a causal link to the
crime. This expense, to secure custody of the children left in Bacon's charge as a result of
Ashley's murder, is indistinguishable from the expenses approved in Beechum to transfer
custody of the murder victim's child to the child's other parent. We hold that substantial
competent evidence of causation existed to sustain the district court's decision to include
this expense in the restitution award.


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                            WORKABILITY OF RESTITUTION PLAN


       Finally, Alcala argues the district court erred in ordering restitution because the
restitution plan is unworkable. He bases this assertion on his lengthy prison sentence and
limited earning potential while incarcerated. This argument has no merit.


       Under K.S.A. 2014 Supp. 21-6604(b)(1), restitution is the rule and a finding that
restitution is unworkable is the exception. Goeller, 276 Kan. at 583. The burden is on the
defendant to come forward with evidence of "compelling circumstances" that render the
restitution plan unworkable. See K.S.A. 2014 Supp. 21-6604(b)(1); Goeller, 276 Kan. at
583 (concluding statute made restitution the rule and required defendant to produce
evidence to support claimed inability to pay underlying argument that restitution was
unworkable). Defendant's imprisonment alone is not sufficient to render restitution
unworkable. See 276 Kan. at 583.


       The district court did not order Alcala to pay a fixed amount of restitution per
month, nor did it explicitly order Alcala to begin payments while incarcerated. This
indicates further restitution will not be collected until he is paroled, if that ever occurs.
See State v. Alderson, 299 Kan. 148, 151, 322 P.3d 364 (2014) (restitution not due while
prisoner incarcerated unless district court unambiguously declares contrary intent on the
record). Having presented no evidence of his inability to pay restitution after his possible
parole, Alcala failed to sustain his burden of demonstrating the restitution plan was
unworkable.


       In summary, the district court's no-contact order is vacated. The district court's
restitution order is affirmed.


       Affirmed in part and vacated in part.
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