                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 119,242

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                            JASON TUCKER,
                                              Appellant.


                                   SYLLABUS BY THE COURT

        A district court abused its discretion by ordering an indigent criminal defendant
sentenced to life in prison without the possibility of parole to pay restitution even while
recognizing the restitution would not be paid. The defendant met the burden of
establishing that the restitution plan was unworkable.


        Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed June 12,
2020. Reversed.


        Meryl Carver-Allmond, of Capital Appellate Defender Office, was on the briefs for appellant.


        Candice Alcaraz, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, C.J.: The district court, after sentencing Jason Tucker to prison for life
without parole, ordered him to pay $5,000 in restitution but did not explicitly order

                                                     1
payments from prison. At the beginning of the case, the district court had found that
Tucker was indigent and, at sentencing, acknowledged the restitution "will never be
paid." Under those circumstances, we hold the district court abused its discretion by
ordering restitution.


                         FACTUAL AND PROCEDURAL BACKGROUND


       Tucker was charged with capital murder, attempted capital murder, aggravated
burglary, and violation of a protective order. Tucker completed an affidavit stating he had
been unemployed and made an average of $14 per month. He claimed indigency and
asked for appointed counsel. The district court granted Tucker's motion.


       Tucker eventually entered a plea of guilty to one count of capital murder in
exchange for the State agreeing not to seek the death penalty and to dismiss the
remaining charges. Tucker stipulated to forcing his way into a residence, after which he
shot and killed Jeremy Rocha, Bernadette Gosserand, and Vincent Rocha. He also shot
Bryan Balza in the back. Balza, who had a protection from abuse order against Tucker,
survived and identified Tucker as the shooter. The agreed sentence was to be life without
possibility of parole.


       At sentencing, the State requested restitution of $5,000 for funeral expenses for
one of the victims and $13,587.85 for medical expenses for Balza. Tucker's counsel
argued the restitution plan was unworkable because Tucker would spend the rest of his
life in prison.


       The district court judge, who was the same judge as found Tucker indigent,
sentenced Tucker to life without parole for capital murder; assessed court costs and a
                                             2
$200 DNA fee; and ordered $5,000 in restitution. During sentencing, the court said,
"[a]nd I understand with the restitution of 5,000 that it will never be paid."


                                                ANALYSIS


       The sole issue on appeal is whether the district court abused its discretion in
ordering restitution.


       Standard of Review


       We review an order of restitution—both as to its amount and as to whether its
payment is workable—for an abuse of discretion. If there is a question about the meaning
of the restitution statute, we exercise unlimited review. State v. Meeks, 307 Kan. 813,
816, 415 P.3d 400 (2018).


       Discussion


       The restitution statute provides:


       "In addition to or in lieu of any of the above, 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. . . . If the court finds a plan of restitution unworkable, the
       court shall state on the record in detail the reasons therefor." K.S.A. 2015 Supp. 21-
       6604(b)(1).


       As noted in Meeks, restitution is the rule, and unworkability is the exception.
307 Kan. at 816-17 (quoting State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 [2003]);
                                                     3
see State v. Shank, 304 Kan. 89, 94, 369 P.3d 322 (2016); State v. Alcala, 301 Kan. 832,
840, 348 P.3d 570 (2015). K.S.A. 2015 Supp. 21-6604(b)(1) does not define
"unworkable," leaving courts to determine unworkability case-by-case. Meeks, 307 Kan.
at 819-20. The defendant must present evidence of his or her inability to pay in order to
sustain his or her burden of establishing unworkability. 307 Kan. at 820. Simply
pointing to a long prison sentence will generally not suffice. State v. Holt, 305 Kan. 839,
843-44, 390 P.3d 1 (2017); Alcala, 301 Kan. at 840.


        The State argues we should hold that Tucker failed to meet his burden and affirm
the district court as we did in Holt, Alcala, and Shank. Tucker persuasively argues we
should distinguish his case from all of those.


        Unlike Tucker, neither William D. Holt II, Manuel C. Alcala, nor William
Andrew Shank was in prison for life without parole. A district court sentenced Alcala to a
hard 25 sentence, meaning his sentence included the possibility for parole. Alcala, 301
Kan. at 833. Holt had a longer sentence; the district court sentenced him to a hard 25 for
first-degree murder and a consecutive 165-month sentence for attempted first-degree
murder (almost 39 years). Holt, 305 Kan. at 840-41. And a court sentenced Shank to
consecutive sentences of a hard 25, 59 months, and 32 months (nearly 33 years total).
Shank, 304 Kan. at 90. Although Holt and Shank had longer sentences than Alcala, the
district courts still knew the possibility of parole existed. And Alcala, Holt, and Shank
could pay restitution upon their release from their long prison sentences. But Tucker
faces no such possibility; he will spend his life in prison.


        What's more, neither Holt, Alcala, nor Shank provided evidence of their inability
to pay if paroled or released. As a result, we held these defendants failed to establish the
unworkability of their respective orders of restitution. Holt, 305 Kan. at 843-44; Shank,
                                              4
304 Kan. at 95-96; Alcala, 301 Kan. at 840. In contrast, Tucker's appointed counsel
argued at sentencing that any restitution order would be unworkable because "[t]he
agreed-upon sentence was for Mr. Tucker to serve life without the possibility of parole
. . . [and he would] never be in a position to repay these amounts."


        The State turns the focus from payments after prison to payments made while the
defendant remains in prison, arguing Tucker failed to show he could not repay the
restitution while incarcerated. The State's argument falters because, as we recently
reiterated: "When a defendant is incarcerated, restitution is due upon sentencing only if
the court orders a certain amount of money be withheld from the defendant's monthly
prison account." State v. Gentry, 310 Kan. 715, 738, 449 P.3d 429 (2019) (citing State v.
Alderson, 299 Kan. 148, 151, 322 P.3d 364 [2014]). The district court did not enter an
explicit order here. There have been changes to the restitution statute since Alderson.
But the State does not argue those changes require us to abandon the requirement.


        The State also makes an emotional appeal about the injustice of Tucker living
while his victims do not. The State fails to explain how this argument relates to whether
the restitution is workable, nor does the State cite any authority. As Tucker points out:
"The statute does not provide an escape valve unless the crime at issue was really, really
bad; it provides an escape valve where a plan of restitution is unworkable."


        In sum, restitution is the rule, and unworkability is the exception. The burden is
on a defendant to present some evidence of compelling circumstances to prove the
restitution is unworkable. Tucker's evidence, while not voluminous, met his burden:
He would be in prison for life and thus would not have the possibility of making
payments upon release. And the district court did not state its intent for Tucker to make
restitution payments while incarcerated. Finally, in this case the district court commented,
                                             5
"I understand with the restitution of [$]5,000 that it will never be paid." Under these
circumstances, we hold the district court abused its discretion by imposing an unworkable
order of restitution.


       The order of restitution is reversed.


       HENRY W. GREEN JR., J., assigned.1
       STEVE LEBEN, J., assigned.2




       1
        REPORTER'S NOTE: Judge Green, of the Kansas Court of Appeals, was
       appointed to hear case No. 119,242 under the authority vested in the Supreme
       Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the
       retirement of Justice Lee A. Johnson.

       2
        REPORTER'S NOTE: Judge Leben, of the Kansas Court of Appeals, was
       appointed to hear case No. 119,242 under the authority vested in the Supreme
       Court by K.S.A. 2019 Supp. 20-3002(c) to fill the vacancy on the court by the
       retirement of Chief Justice Lawton R. Nuss.
                                               6
