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State v. Goeller10/31/2003
Affirmed.
Defendant Dennis Lee Goeller appeals from sentencing and restitution orders entered in the district court.
Goeller entered a guilty plea to one count of felony possession of methamphetamine and one count of felony possession of marijuana and entered a no contest plea to one count of misdemeanor driving under the influence . In return for these pleas, the State dismissed one count of felony possession of drug paraphernalia and one count of driving a motor vehicle left of the center line.
The charges against Goeller arose out of a car accident precipitated by Goeller falling asleep at the wheel and crossing the center line. Witnesses said Goeller's car had crossed the center line several times before the accident occurred. James Norrish, the driver of the car that collided head-on with Goeller's car, was seriously injured in the accident. Goeller specifically wished to plead no contest rather than guilty to the DUI to attempt to avoid civil liability for the accident.
When police responded to the scene, they observed drug paraphernalia in plain view, which led to a search of Goeller's car. The officers found methamphetamine and marijuana. In addition, although testing of Goeller's blood revealed no alcohol, it disclosed the presence of methamphetamine, cannabis, and cocaine metabolites in his system.
In an affidavit filed with the district court, Goeller stated he had previously worked for Sterling Drilling Company but had been unemployed for 1 year. He further stated that he did not own a home, land, a car, a truck, or a motorcycle and that he did not receive any income from rental property, public assistance, or other sources. When the district judge heard arguments on sentencing, Goeller's counsel requested probation, saying: "He has been employed by Val Energy and although they are down right now they expect to get back up shortly." When it became evident that Goeller would get a prison sentence, his counsel opposed restitution by arguing: "If Mr. Goeller was on probation and he's always worked. If he was on probation I guess I wouldn't have anything to argue about, but he's not and, thus, I think that on its face it makes any plan of restitution simply unworkable in this instance."
The district judge ultimately sentenced Goeller to a controlling sentence of 17 months' imprisonment with 12 months' postrelease supervision and ordered him to pay Kansas Bureau of Investigation (KBI) lab fees of $450, i.e., a $150 fee for each of the three offenses for which a lab test was conducted. Despite counsel's objection, the district judge also ordered Goeller to pay Norrish restitution of $1,000 per month during Goeller's 12 months of postrelease supervision. Norrish had testified that the accident forced him to incur approximately $130,000 in medical bills and caused him and his wife wage losses of nearly $8,000.
Goeller stipulated to a criminal history score of F. His prior drug record resulted in an increased penalty for possession of marijuana. His sentence on that crime, 11 months, was ordered to run concurrent to his 17 months for the possession of methamphetamine count.
Restitution
Goeller challenges both the power of the district judge to order restitution and his decision to set the amount at $1,000 per month for the duration of the postrelease supervision period.
K.S.A. 2002 Supp. 21-4603d(b)(1) is the governing statute. It reads in pertinent part:
" he 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 wo
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