               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 112,982

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                 WILLIAM ANDREW SHANK,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       Generally, it is within the trial court's sound discretion to determine whether a
sentence should run consecutive to, or concurrent with, another sentence.


2.
       Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.


3.
       K.S.A. 2015 Supp. 21-6604(b)(1) requires the sentencing court to order the
defendant to pay restitution unless the court finds compelling circumstances which would
render a plan of restitution unworkable.



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4.
        An appellate court's review of a restitution plan can involve three standards of
review: Questions concerning the amount of restitution and the manner in which it is
made to the aggrieved party are reviewed under an abuse of discretion standard. A district
court's factual findings relating to the causal link between the crime committed and the
victim's loss will be affirmed if those findings are supported by substantial competent
evidence. Finally, appellate courts have unlimited review over legal questions involving
the interpretation of the underlying statutes.


5.
        When challenging the workability of a restitution order, the defendant carries the
burden to come forward with evidence of "compelling circumstances" that render the
restitution plan unworkable.


        Appeal from Thomas County District Court; GLENN D. SCHIFFNER, judge. Opinion filed April
15, 2016. Affirmed.


        Peter Maharry, of Kansas Appellate Defender Office, was on the brief for appellant.


        Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.


        The opinion of the court was delivered by


        NUSS, C.J.: After accepting William Shank's guilty pleas, the district court
ultimately sentenced him to life with a mandatory minimum of 25 years for first-degree
murder, 59 months for aggravated arson, and 32 months for aggravated burglary. It
ordered all sentences to run consecutively and imposed $108,427.65 in restitution.


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       Shank argues the district court abused its discretion in ordering his sentences to
run consecutively instead of concurrently and in imposing a restitution plan that is
"unworkable." Because there was no abuse of discretion, we affirm.


                            FACTS AND PROCEDURAL HISTORY

       The State charged William Shank with first-degree murder for the premeditated
killing of Teri Morris; aggravated arson for setting afire the residence where she was
killed; and aggravated burglary for entering the residence with the intent to kill her.
Shank pled guilty to all counts.


       At Shank's plea hearing, the State proffered the evidence it would have presented
at trial. In 2012, Shank and Morris lived together in Garden City. Morris later moved to
Colby where she eventually gave birth to their daughter, A.J.S. Later that year, Morris
and A.J.S. moved into Russell Rodenbeck's house in Colby.


       Early one morning in February 2013, Morris was sleeping in her bed while A.J.S.
slept in her crib. While responding to a report of a fire at the house later that morning,
firefighters found Morris' dead body in the living room. An autopsy revealed she was
stabbed and slashed 27 times—and suffered blunt force trauma to her head and thermal
burns to her naked body. The soot in her mouth and nose indicated she was alive when
the fire was set.


       Several hours later Shank was found with A.J.S. about 100 miles from Colby. He
had cuts on his body, Morris' blood and DNA on his shirt, and Morris' blood on his right
ear. Police found gloves covered with Morris' and Shank's blood in a trash bag at Shank's
home as well as Morris' blood on the steering wheel of Shank's vehicle and on a lighter

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inside. Shank's partial DNA was also found on the door knob of Rodenbeck's house. His
computer revealed internet searches explaining how to pick a lock and break into a
residence.


       At the sentencing hearing, the State requested Shank serve sentences for each
count consecutively while Shank requested them to run concurrently. Defense counsel
did not object to the proposed plan for restitution of damages. When asked for Shank's
position on the State's request for reimbursing the state general fund for expenditures
made by the Board of Indigent Defense Services (BIDS), counsel responded Shank had
no resources or ability to reimburse.


       The court sentenced Shank to consecutive terms of life with a mandatory
minimum of 25 years for first-degree murder, 59 months for aggravated arson, and 32
months for aggravated burglary. The court also assessed $108,427.65 in restitution,
primarily as compensation for Rodenbeck's fire-damaged house.


       Jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b)(3), (4) (maximum
sentence of life imprisonment imposed for an off-grid crime).


       More facts will be added as necessary to the analysis.


                                         ANALYSIS


Issue 1: The district court did not abuse its discretion by ordering Shank to serve
consecutive sentences.

       Shank argues the district court erred in imposing consecutive sentences. The State
responds that this decision was well within the court's discretion.

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       Standard of review


       K.S.A. 2015 Supp. 21-6819(b) provides that, absent certain circumstances, "[t]he
sentencing judge shall otherwise have discretion to impose concurrent or consecutive
sentences in multiple conviction cases." This statute does not list specific factors for
consideration but states the judge "may consider the need to impose an overall sentence
that is proportionate to the harm and culpability" associated with the crimes. K.S.A. 2015
Supp. 21-6819(b); State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).


       This court's abuse of discretion standard is well-established:


       "'Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
       i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
       based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
       or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
       a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
       based. [Citation omitted.]' State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert.
       denied __ U.S. __, 132 S. Ct. 1594 (2012)." State v. Wilson, 301 Kan. at 405.


       By simply claiming the district court "needlessly" lengthened Shank's sentence
and imposed an "unduly" lengthy sentence, Shank essentially argues no reasonable
person would have taken the court's view. The State counters that reasonable persons
would agree with the court, e.g., that the crimes were "excessively brutal" and
consecutive sentences appropriate.


       Discussion


       At the sentencing hearing, the State requested Shank serve time for each crime
consecutively "due to the egregiousness of each act." In support, it pointed to the
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vulnerability of the victim at the time of the aggravated burglary—i.e., Morris was
sleeping naked alone in her house with her child. The State also noted the brutal, cruel,
and premeditated nature of the murder and further emphasized that Shank set the fire to
hide the crime while Morris was still alive. Shank requested concurrent sentences
because he was only 25 years old and had entered into the plea to take responsibility for
the crime. He did not make any personal statements at the hearing.


       In the court's evaluation, it stated that it weighed the statements of counsel, the
statements of the victim's family and those made on behalf of Shank, and the presentence
investigation report. It also considered the case record which revealed Shank broke into
the residence where Morris and her daughter were sleeping. He stabbed Morris 27 times
and inflicted blunt force trauma to her body. One of those stab wounds punctured her
lung and caused her to suffocate on her own blood. After setting the house on fire while
Morris was still alive, Shank left with A.J.S. From this information, the court
characterized the crime as excessively brutal.


       In applying our test, we are unable to conclude that no reasonable person would
take this view. See Wilson, 301 Kan. at 406 (citing Ward, 292 Kan. at 550). So the court
did not abuse its discretion when it concluded consecutive sentences were proportionate
to the harm and culpability associated with Shank's convictions. See K.S.A. 2015 Supp.
21-6819(b).


Issue 2: The district court did not abuse its discretion by ordering Shank to pay
restitution.

       Shank argues the district court erred in imposing restitution. The State counters
Shank did not preserve the issue for appeal because he failed to object to the amount of



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restitution at the sentencing hearing. In the alternative, it contends the court did not abuse
its discretion by ordering restitution.

       Standard of review

       K.S.A. 2015 Supp. 21-6604(b)(1) provides that the sentencing 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." An appellate court's consideration of a
restitution plan can involve three standards of review:


       "Questions concerning the 'amount of restitution and the manner in which it is made to
       the aggrieved party' are reviewed under an abuse of discretion standard. [Citation
       omitted.] A district court's factual findings relating to the causal link between the crime
       committed and the victim's loss will be affirmed if those findings are supported by
       substantial competent evidence. Finally, appellate courts have unlimited review over
       legal questions involving the interpretation of the underlying statutes." State v. King, 288
       Kan. 333, 354-55, 204 P.3d 585 (2009) (citing State v. Dexter, 276 Kan. 909, 912-13, 80
       P.3d 1125 [2003]).


       Shank argues the restitution order is unworkable because he cannot pay the
restitution as ordered. Accordingly, abuse of discretion is the proper standard. See State
v. Goeller, 276 Kan. 578, 581, 77 P.3d 1272 (2003) (setting of amount of restitution is
within district judge's discretion), overruled on other grounds by State v. Dickey, 301
Kan. 1018, 350 P.3d 1054 (2015).

       Discussion

       Under K.S.A. 2015 Supp. 21-6604(b)(1), restitution is the rule and a finding that
restitution is unworkable is the exception. State v. Alcala, 301 Kan. 832, 840, 348 P.3d
570 (2015). When challenging the workability of a restitution order, the defendant carries
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the burden to come forward with evidence of "compelling circumstances" that render the
restitution plan unworkable. 301 Kan. at 840.


       In King, 288 Kan. at 356, the defendant did not raise at the district court level the
issue of unworkability of the restitution plan "at all." We held:


       "Not only would this lack of objection fail to preserve the issue for appellate review in
       the normal case, but it also fails to meet his burden of proving unworkability. Thus, the
       district court did not abuse its discretion when it ordered the restitution in this case."
       (Emphasis added.) 288 Kan. at 356.


       In the instant case, Shank's attorney explicitly stated at the sentencing hearing he
and his client did not object to the restitution "as listed":


               "So Your Honor, we are here today. We have had an opportunity to review the
       restitution. The majority of the restitution, obviously, as the court knows is for—to
       reimburse the insurance company for the payment to the house. We have no specific way
       to challenge that. We've been given an opportunity to review the restitution claims made
       by the different individuals, and we do not object to those, Your Honor.


               "So with that, we would ask the Court to make a determination to sentence Bill
       Shank concurrently with respect to all three of the crimes.


               "We agree with the 604 days, as far as the time served, and again, [we] do not
       have any objection to the restitution as listed, Your Honor." (Emphasis added.)


       As with the defendant in King, Shank's overall failure to object to the proposed
restitution obviously includes a failure to raise any specific argument about the restitution
plan's unworkability. 288 Kan. at 356. And as in King, this would represent not only a



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failure to preserve the issue for our review in the normal case but also constitute a failure
to meet his burden of proving unworkability.


       Shank contends, however, that defense counsel's statement about a current lack of
assets was the equivalent of objecting to the imposition of the restitution plan as
unworkable. But as revealed by the following colloquy between defense counsel and the
court, this statement related exclusively to the issue of BIDS reimbursement, which
occurred immediately after counsel declared, "[A]nd again, [we] do not have any
objection to the restitution as listed, Your Honor."


               "The court: Mr. Fairbanks, if I might ask you [for] your position, or Mr. Shank's
       position, in regard to the imposition of an order requiring him to reimburse the state
       general fund for all expenditures made by the Board of Indigent Defense Services to
       provide your services in the matter.


               "Defense counsel: Well, Your Honor, Mr. Shank has no resources. There were
       no resources available initially, Your Honor. I don't think he has any ability at this time to
       reimburse them for those services. I think that's the, my understanding, the major factor
       of that to look at, Your Honor.


               "If and when he was ever granted parole, he has restitution to make, he has no
       assets, Your Honor. None. The only asset he had was his car, and obviously that has been
       currently still, I think, in control of the State. So that would be the position we'd take,
       Your Honor." (Emphasis added.)


       Like the King court, we conclude that here "the district court did not abuse its
discretion when it ordered the restitution." 288 Kan. at 356. Simply put, the responsibility
for challenging the workability of a restitution plan lies with the defendant, not the court.
288 Kan. at 356-57 (rejecting argument the district court has independent obligation to
make findings on record regarding plan's workability, and contrasting language in
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restitution statute with language in BIDS reimbursement statute, K.S.A. 22-4513, at issue
in State v. Robinson, 281 Kan. 538, 132 P.3d 934 [2006]). And the defendant—not the
court—carries the burden to come forward with evidence of compelling circumstances
that render the restitution plan unworkable. Alcala, 301 Kan. at 840. Despite these
burdens, Shank did not challenge the restitution plan, much less provide any compelling
circumstances to support such a challenge.


       Even giving Shank the benefit of any possible doubt about his counsel's statements
at sentencing, i.e., that in addition to having no current assets, he will not have the ability
to pay restitution in the future, these statements do not support an abuse of judicial
discretion. Our decision in Alcala, 301 Kan. 832, is instructive.


       In Alcala, the defendant argued his restitution plan was unworkable in part
because of his limited earning potential during his lengthy incarceration: life
imprisonment without parole for 25 years. We noted, however, that restitution is typically
not due during incarceration so "imprisonment alone is not sufficient to render restitution
unworkable." 301 Kan. at 840. We concluded that, because Alcala had failed to present
evidence of his inability to pay restitution after his possible parole, he had failed to meet
his burden to show the restitution plan was unworkable. 301 Kan. at 840 (citing State v.
Alderson, 299 Kan. 148, 151, 322 P.3d 364 [2014]).


       As in Alcala, Shank failed to present evidence of his inability to pay restitution in
the future. Accordingly, he could not establish this as a basis to demonstrate the
restitution plan is unworkable. So the district court did not abuse its discretion in ordering
restitution. See Alcala, 301 Kan. at 840.


       For these reasons, the decision of the district court is affirmed.


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