                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                               No. 113,593

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                          PATRICK A. MEEKS,
                                              Appellant.


                                   SYLLABUS BY THE COURT

1.
        An appellate court reviews whether a plan of restitution would be unworkable for
an abuse of discretion.


2.
        When a defendant challenges an order of restitution as unworkable, it is the
defendant's burden to come forward with evidence of his or her inability to pay.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed December 18,
2015. Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed April 13, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.


        Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.


        Jodi E. Litfin, assistant solicitor general, argued the cause, and Lauren Amrein, legal intern,
Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for
appellee.

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The opinion of the court was delivered by


        ROSEN, J.: Patrick Meeks seeks review of the Court of Appeals decision affirming
his order of restitution. We affirm.


                        FACTUAL AND PROCEDURAL BACKGROUND


        Patrick Meeks pleaded guilty to one count of felony theft over $1,000 but less than
$24,999 for the theft of a vehicle belonging to Monica and Christopher Taylor. Meeks
borrowed the vehicle with permission but never returned it. He asserted that the vehicle
was stolen from him and never recovered.


        At the time the vehicle was stolen, its fair market value was $13,856.21, but there
was a lien on the vehicle through Topeka City Employees Credit Union that totaled over
$22,000. The Taylors had a vehicle insurance policy and a guaranteed asset protection
(GAP) policy on the vehicle. As a result of the theft, they made a claim with their
insurance carrier. After the Taylors paid a $500 deductible, the vehicle insurance policy
paid off the value of the vehicle and the GAP insurance covered the remainder of the
loan, which was $8,870.38. These payments went directly to the Topeka City Employees
Credit Union.


        The State initially sought restitution in the amount of $22,726.59. Before the
sentencing hearing, Meeks submitted a motion opposing the State's request, arguing that
the amount was too high because it exceeded the amount of money he could earn in a
year.




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      At the sentencing hearing, the State requested that the district court order
$23,226.59 in restitution—$500 to the Taylors for the deductible; $13,856.21 to USAA
Casualty Insurance for covering the value of the vehicle; and $8,870.38 to Frost Financial
Services for the GAP insurance payment.


      During the defense's closing argument, the following exchange took place:


      "[Defense attorney]: Your Honor, I've done some Kelley Blue Book research.


      "THE COURT: and you don't have that evidence before me.


      "[Defense attorney]: Right, right, right. But my point is, with that that I've done, that
      would support the insurance payment of $13,856.


      "THE COURT: So you're not contesting the—at least the value of the loss, fair market
      value, being $13,856.20?


      "[Defense attorney]: Correct. We would—that has always been our argument, is that the
      fair market value, the amount of the lost car itself, should be the restitution amount.


      "THE COURT: The GAP insurance, is what you're disputing?


      "[Defense attorney]: Correct, Your Honor.


      "THE COURT: And then you're making a claim or asking the Court to consider ability
      to pay as the other factor?


      "[Defense attorney]: Right, right. And I could cite additional cases, if you want me to go
      do more research on this."




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       During the hearing, Meeks submitted the financial affidavit that accompanied his
application for a public defender and testified to the following information: He had a
GED and some college; he had been unemployed for the previous 5 years because he had
been in prison; he had cumulatively served 16 years in prison throughout the course of
his life; when he was not in prison he had worked assembly line jobs, construction jobs,
production jobs, and manufacturing jobs; and he had never made over $15 per hour or
earned more than $14,000 in a year. Meeks also testified that he had the following debts
and financial obligations: $22,000 or $23,000 in student loans, $5,000 to $7,000 in
hospital bills, and $14,000 in child support arrearages; he was ordered to pay $168 per
month in child support, and that amount was set low because of his financial status; and
he had a third child to care for. Meeks testified that he had filed a disability claim because
of a herniated disk in his back and his lawyer was a public defender because he was
indigent. Finally, Meeks testified that he thought he was capable of doing some jobs, like
sitting and answering phones, despite his bad back. When the prosecutor questioned
whether Meeks was able to pay any amount of restitution, he answered "no."


       Before the district judge ruled, he asked Meeks what he thought he could pay in
restitution. Meeks said, "I believe I could go to work and make payments on anything
forever, at a certain adjusted amount." The judge then asked Meeks what he thought the
court should order him to pay, and Meeks replied, "Well, I believe the fair market value
of the car, the $13,000, I mean. I mean, not all at one time, I won't. I won't even be able
to pay one dime. I have nothing but the clothes that are sitting in property at the Shawnee
County jail." Meeks told the judge that he had the ability to work, that he had a job
waiting for him at a Kawasaki manufacturing plant where he would make $11.50 per
hour, and that he would be living with his child's mother, who also worked, so there
would be "income going into the home."




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        The district court sentenced Meeks to 11 months in prison and 12 months of
postrelease supervision. He ordered Meeks to pay $14,356.21 in restitution—$500 for the
Taylors' deductible and $13,856.21 for the fair market value of the vehicle. The court
found that Meeks was able to work and had a desire to do so, and that Meeks would be
able to pay towards the restitution amount after he was released from prison. The judge
ordered Meeks to start paying the restitution upon his release and said that Meeks could
establish a monthly plan at that time. The judge also ruled that it would be reasonable for
Meeks to pay up to $300 per month during the postrelease supervision, and at the end of
the supervision, Meeks could make payments towards the restitution until it was fully
paid.


        Meeks appealed the restitution order to the Court of Appeals, arguing that the
district court erred because the amount of the order made any plan unworkable. The
Court of Appeals affirmed the district court. State v. Meeks, No. 113,593, 2015 WL
9302722 (Kan. App. 2015) (unpublished opinion). We granted Meeks' petition for
review.


                                          ANALYSIS


        The district court ordered Meeks to pay $14,356.21 in restitution upon his release
from prison pursuant to K.S.A. 2017 Supp. 21-6604(b)(1).


        Meeks contends that the district court erred because, as a result of his limited
financial resources, he will never be able to pay off the order in a reasonable time frame,
and no reasonable person would agree that such a plan is a workable one.


        We review whether a plan of restitution would be unworkable for an abuse of
discretion. State v. Holt, 305 Kan. 839, 842, 390 P.3d 1 (2017) (citing State v. Shank, 304
                                              5
Kan. 89, 93, 369 P.3d 322 [2016]). Judicial discretion is abused if no reasonable person
would agree with the decision or if the decision is based on an error of law or fact. Shank,
304 Kan. at 92. To the extent this question requires interpretation of the restitution
statute, our review is de novo. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015).


       K.S.A. 2017 Supp. 21-6604 enumerates the authorized dispositions for crimes
committed on or after July 1, 1993. Regarding restitution, the statute provides that "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." K.S.A. 2017 Supp.
21-6604(b)(1).


       In State v. Goeller, we explained that "[t]he design of this provision makes clear
that restitution is the rule and a finding that restitution is unworkable the exception. It
also leads us to conclude that it is defendant's burden to come forward with evidence of
his or her inability to pay." 276 Kan. 578, 583, 77 P.3d 1272 (2003), overruled on other
grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).


       In Shank, we held that a defendant had not shown that restitution was unworkable
when he failed to object to the proposed restitution at the sentencing hearing. 304 Kan. at
94.


       In Holt, we affirmed a restitution order of $12,406.58 because, while the defendant
might have shown that he could not pay the restitution while he was in prison, the
restitution was not due until his release, and he had not provided any evidence
demonstrating his inability to pay in the future. 305 Kan. at 844-45. Similarly, in State v.
Alcala, a defendant's "lengthy prison sentence and limited earning potential while
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incarcerated" did not render restitution unworkable because the defendant failed to
present any evidence of his inability to pay after his possible parole. 301 Kan. 832, 840,
348 P.3d 570 (2015).


       In Goeller, we upheld a restitution order of $1,000 per month for 12 months when
the defendant had not presented evidence of his inability to pay. 276 Kan. at 580. At the
sentencing hearing, the defendant testified that he had previously worked for a drilling
company but had been unemployed for 1 year and had no assets or income. His counsel
stated that the defendant had been employed by an energy company that was down but
expected to be up shortly. 276 Kan. at 579. We concluded that these statements were
adequate to uphold the order. Adding to the reasonableness of the order, we noted, was
the fact that the restitution ordered was far less than the victim's damages and the
payments would be delayed until the defendant's release from prison. 276 Kan. at 583.


       The Court of Appeals has considered the merits of an unworkability argument
many times. With those decisions, it has effectively set more distinct guidelines regarding
when a restitution order is unworkable.


       In State v. Orcutt, No. 101,395, 2010 WL 348281 (Kan. App.) (unpublished
opinion), rev. denied 290 Kan. 1101 (2010), the district court ordered the defendant to
pay $7,500 in restitution at a rate of $625 per month. A panel of the Court of Appeals
held that the restitution was unworkable because the defendant's only income was $980 in
social security benefits, he had no ability to earn more, and he had no money left after
paying for rent, utilities, groceries, and medication. Orcutt, 2010 WL 348281, at *5-6.


       The Court of Appeals also found restitution unworkable in State v. Herron,
50 Kan. App. 2d 1058, 335 P.3d 1211 (2014). There, the district court ordered a
defendant who made $680 per month to pay $6,864 in restitution after concluding that
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poverty alone was not enough to make a restitution plan unworkable. 50 Kan. App. 2d at
1060-61. A majority of the Court of Appeals panel reversed, holding that poverty could
render a restitution plan unworkable. 50 Kan. App. 2d at 1062. The majority further held
that the district court abused its discretion in failing to find the restitution order
unworkable, because no reasonable person would agree that requiring the defendant to
pay the entire restitution in 18 months or extending her probation by 55 years so she
could make small, $10 monthly payments was a workable plan. 50 Kan. App. 2d at
1064-65.


       In State v. Hambright, 53 Kan. App. 2d 355, 388 P.3d 613 (2017), a panel of the
Court of Appeals followed the reasoning of Herron. In Hambright, the defendant agreed
to pay back $60,000 in restitution as part of a plea agreement and the district judge
ordered him to pay it back at a rate of $500 per month. The defendant appealed the
restitution plan as unworkable because he only made $200 per week and paid $250 per
month in rent. The panel agreed that it was unworkable because the plan required the
defendant to pay over half of his monthly income toward restitution and left him little
money for necessities. 53 Kan. App. 2d at 366.


       In State v. Martin, a different panel of the court wrote, "Restitution plans which
require defendants to make monthly payments which exceed half of their monthly income
are generally unworkable." No. 115,651, 2017 WL 2713042, at *4 (Kan. App. 2017)
(unpublished opinion) (citing Herron, 50 Kan. App. 2d 1058).


       Another Court of Appeals panel upheld a restitution order in State v. Steffens, No.
113,175, 2016 WL 1719666 (Kan. App. 2016) (unpublished opinion). There, the district
court ordered the defendant to begin paying restitution upon his release from prison,
when his postrelease supervision began. Even though the defendant was disabled,
homeless, and had been unemployed for many years, the panel affirmed the order
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because it concluded the district court had "clearly considered [the defendant's]
circumstances by reducing the amount he would have to pay from over $62,000 to
$2,400, less than 4% of the total," and the "amount does not appear unreasonable,
particularly in light of the fact that—as a postrelease supervision case—the amount could
be further reduced upon [the defendant's release] if his situation does not improve." 2016
WL 1719666, at *5.


       With these holdings, the Court of Appeals has defined an "unworkable" restitution
plan as one that is imposed when the defendant would not have the ability to pay towards
restitution after covering basic necessities, when over half of the defendant's income
would go to restitution and leave little for covering those necessities, or when the
defendant would not pay back the restitution in a "reasonable time frame." However, if
restitution is ordered as a condition of postrelease supervision, as opposed to probation,
plans that would fall into one of these categories may still be considered workable, since
they are subject to change by the prisoner review board after the defendant's release from
incarceration.


       We are wary of the rigid definition of "unworkable" that may be taking shape as a
result of the numerous Court of Appeals decisions. Indeed, in this case, the Court of
Appeals panel seemed to consider Meeks' plan to be a workable one, at least in part,
because it was not like other plans that courts had considered unworkable, instead of
evaluating the plan on its own merits. The panel wrote "the restitution imposed on Meeks
may be substantial and may reflect a significant economic burden, but it does not
approach the burden the district court visited on Herron." Meeks, 2015 WL 9302722, at
*2.


       The restitution statute does not include a definition of "unworkable," let alone a
detailed one. From this omission, we must assume that the legislature did not intend a
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rigid or unyielding definition. There is no legislative history suggesting otherwise. Had
the legislature envisioned a scenario in which courts only waived restitution when it
would demand more than a certain percentage of a defendant's income or time out of a
defendant's life, it could have written that into the statute. Because it did not, we must be
confident that our decisions do not force such a result. See State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016) (fundamental rule of statutory
interpretation is the intent of legislature governs).


       Given the rigidity evolving from the Court of Appeals decisions, we think it is
appropriate to reiterate that unworkability should be evaluated on a case-by-case basis.
As we stated in Goeller, a defendant who argues that restitution is unworkable must come
forward with evidence of his or her inability to pay. 276 Kan. at 583. District courts
should use this flexible guideline to evaluate each defendant's unique circumstances
before deciding whether the defendant has shown a plan would be unworkable. Some of
the factors relevant to the court's inquiry will be the defendant's income, present and
future earning capacity, living expenses, debts and financial obligations, and dependents.
In some circumstances, the amount of time it will take a defendant to pay off a restitution
order will also be relevant, especially if the defendant is subject to probation until the
restitution is paid in full. In all circumstances, the district court should keep in mind the
ultimate goals of restitution: compensation to the victim and deterrence and
rehabilitation of the guilty. See State v. Hunziker, 274 Kan. 655, Syl. ¶ 4, 56 P.3d 202
(2002).


       This method of figuring restitution is consistent with those that are utilized across
the country. The Model Sentencing and Corrections Act includes a model restitution
statute that directs a court to consider "the financial resources and future ability of the
offender to pay or perform" when ordering restitution. Model Sentencing and Corrections
Act § 3-601, 10 U.L.A. 443 (2001). In a majority of states, courts follow such a model,
                                              10
considering a defendant's circumstances and his or her ability to pay before setting a
restitution amount. See Ala. Code § 15-18-68(a); Conn. Gen. Stat. § 53a-28(c); Pratt v.
State, 486 A.2d 1154, 1161 (Del. 1983); D.C. Code § 16-711(b); Ga. Code Ann. § 17-14-
10(a); Idaho Code § 19-5304(7); Ind. Code § 35-38-2-2.3(a)(6) (when ordered as a
condition of probation); Me. Rev. Stat. tit. 17-A, § 1325(1)(C), (2)(D); Md. Code Ann.,
Crim. Proc. § 11-605(a)(1); Com. v. Henry, 475 Mass. 117, 121, 55 N.E.3d 943 (2016);
Minn. Stat. Ann. § 611A.045(a)(2); Miss. Code. Ann. § 99-37-3(2); Neb. Rev. Stat. Ann.
§ 29-2281; N.J. Stat. Ann. § 2C:44-2(b)(2), (c); N.M. Stat. Ann. § 31-17-1(A); N.C. Gen.
Stat. § 15A-1340.36(a); N.D. Cent. Code. § 12.1-32-08(1)(b); Ohio Rev. Code Ann.
§ 2929.19(B)(5); 42 Pa. Stat. § 9754(c)(8) (when ordered as a condition of probation);
S.C. Code Ann. § 17-25-322(B); S.D. Codified Laws § 23A-28-1; Tenn. Code Ann. § 40-
35-304(d); Utah Code Ann. § 77-38a-302(5)(c); W. Va. Code § 61-11A-5(a); Wis. Stat. §
973.20(13)(a); Wyo. Stat. Ann. § 7-9-103(c). Some state statutes explicitly direct courts
to consider factors similar to the factors we describe as relevant to the defendant's ability
to pay. See, e.g., D.C. Code § 16-711(b) (directing courts to consider defendant's
resources, ability to earn money, and obligations to dependents when setting restitution);
Me. Rev. Stat. tit. 17-A, § 1325 (directing courts to consider "all relevant factors" when
restitution creates a "financial hardship on the offender or dependent of the offender,"
including number of dependents, living expenses, special needs, income and future
earning capacity, and other resources).


       In this case, Meeks testified that he had no income and multiple financial
obligations, including debts and dependents. He testified that he had been in prison for 16
years of his life and had limited ability to work due to a back injury. However, Meeks
also testified that he had the ability to work and he told the district court that he had a job
waiting for him and would be able to make restitution payments "forever." When the
district judge asked Meeks what he thought he should pay in restitution, Meeks replied
that he thought he should be responsible for an amount equaling the fair market value of
                                              11
the vehicle. After considering the evidence and Meeks' statements, the district court
ordered $14,356.21 in restitution—$8,870.38 less than the State requested.


       The Court of Appeals concluded that the restitution amount was not an abuse of
discretion. While we question the panel's analysis insofar as it merely compared the order
here to orders in cases where it considered an order unworkable, we agree with its
conclusion. Meeks showed his immediate financial incapacity but did not provide
evidence to show that he would be unable to pay restitution after his release from prison.
In fact, Meeks testified to the contrary when he said that he was able to work despite his
back injuries. Based on these facts, we cannot conclude that no reasonable person would
have taken the view adopted by the district court.


       We conclude that the district court did not abuse its discretion when it ruled that
Meeks failed to show a restitution plan was unworkable. Accordingly, the Court of
Appeals did not err when it concluded the same.


       The judgment of the district court is affirmed. The decision of the Court of
Appeals is affirmed.


       JOHNSON, J., concurs in the result.




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