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NOT DESIGNATED FOR PUBLICATION

No. 124,645

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KARIE LANE MARTIN MCBRIDE,

Appellant.

MEMORANDUM OPINION

Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed December 30, 2022.

Affirmed.

Emily Brandt and Bryan Cox, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER and CLINE,JJ.

PER CURIAM: Karie Lane Martin McBride violated his probation by failing to pay 

restitution as ordered by the district court. He now appeals, arguing the restitution portion 

of his sentence should be vacated because the district court lacked jurisdiction to impose 

restitution at a separate hearing. Because we find that the district court properly continued 

sentencing to determine the amount of restitution, it retained jurisdiction to do so. As a 

result, we affirm.
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FACTUAL AND PROCEDURAL HISTORY

After being arrested and charged with fleeing from police in a vehicle he did not 

own, McBride ultimately pled no contest to two counts of fleeing and eluding law 

enforcement. Under the plea agreement, McBride acknowledged he would "pay 

restitution if requested [by the State] . . . and that the sentencing for this case will not be 

considered as complete until such time as restitution is assessed by the Court or agreed 

upon by the parties."

At sentencing the parties asked the district court to follow the plea agreement as to 

the length of sentence by imposing consecutive sentences of 15 and 7 months—for a total 

controlling sentence of 22 months—and McBride argued for a dispositional departure. 

The State also asked the court to impose "standard costs," and for the court to impose 

total restitution of $12,585.03 for damage to the vehicle McBride used to commit his 

crimes, but noted "[m]aybe it wasn't agreed upon, but it was indicated that the State will 

request it."

McBride's counsel opposed the amount of restitution, noting that the plea 

agreement left restitution up to the agreement of parties or as assessed by the court. 

Defense counsel explained that McBride would agree to $2,845.08 in restitution because 

he believed that to be the amount of damage caused by his offenses. Defense counsel 

asked the court to consider holding a separate evidentiary hearing to determine the 

amount of restitution and "reserve jurisdiction for that purpose and pronounce sentence 

today." The State responded, "I think that the court can keep restitution open as long as 

it's clear for today's journal entry that sentencing is not complete," and that since the 

parties disagreed on the amount, holding a separate hearing for restitution was "the best 

thing to do."
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After the district court asked for clarification of part of the State's restitution 

request, defense counsel offered to provide a copy of a letter he had sent to the State 

detailing the agreed-upon amounts. The court said, "That's okay. If we're going to have a 

separate hearing, then we'll reserve all that for a different time. I just wanted to help put 

the State on notice to what the issues are, and you're telling me you have already done 

that." The court then allowed McBride to make an allocution before imposing sentence.

Although the district court followed the plea agreement as to the individual prison 

terms, the court decided to order the sentences to run concurrent for a total controlling 

prison sentence of 15 months. The court also agreed to grant McBride's request for a 

dispositional departure and ordered him to serve a 12-month probation term. The court 

ordered McBride to pay court fees and costs, including the full amount of Board of 

Indigents' Defense Services attorney fees, but stated:

"[J]ust to be clear on the issue of restitution, the court is going to hold off on that and we 

need to schedule a restitution hearing is what it sounds like. So I will leave the sentencing 

open knowing that the restitution is going to be determined by the court at a future date."

After advising McBride of his right to appeal, the district court then discussed 

scheduling an evidentiary hearing for restitution. After inquiring how much time the State 

would need, the court said, "Okay. We'll get something scheduled and be in touch[,]" and 

closed the hearing. Immediately following the hearing, the court entered a minute sheet 

order reciting only the length of McBride's sentence.

McBride began serving his probation term the day of sentencing. He signed an 

order of intensive supervision probation, which included monthly payment of costs 

"assessed by the Court" as a probation condition, listing the fees in the amounts imposed 

at the hearing but listing restitution as "$TBD."
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As promised, the district court scheduled a restitution hearing for about a month

later. The day before that hearing, the State requested a continuance so that the parties 

could "attempt[] to resolve the issue of restitution without the need for a hearing." The 

court granted the continuance and entered an order—which was approved by McBride's 

counsel—specifying the "matter will be reset, if necessary, to a date and time agreed to 

by the Court and the parties."

The district court held the restitution hearing approximately three months after the 

first sentencing hearing. McBride waived his right to be personally present and appeared 

by Zoom, while the attorneys were present in the courtroom. The court began by 

confirming with counsel "that we have previously done the sentencing . . . [a]nd at this 

time we continued it for the issue of restitution." The court also noted that it had imposed

court costs and fees "when we completed the sentencing."

The parties presented evidence and called witnesses. In short, the State's witnesses 

testified that the vehicle McBride used to flee from the officers suffered both cosmetic 

and mechanical damage resulting in a total insurance claim of $12,585.03, with the 

vehicle's owner having paid a $500 deductible. McBride agreed that the vehicle suffered 

cosmetic damages of $2,845.08 but disputed whether he caused the mechanical damage 

to the vehicle.

After considering the parties' arguments, the district court found there was 

substantial and competent evidence to support ordering the full amount of restitution 

requested by the State. After noting that McBride had about eight months left on his 

probation term, the court said that requiring McBride to pay $1,500 a month "is not going 

to be workable." After consulting the parties, the court decided to order McBride to pay 

restitution "in full prior to the termination of probation." The court again advised 

McBride of his right to appeal the sentence, noting "that's going to be from today, right, 

since we're talking about the restitution issue?" Following the hearing, the court filed the 
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journal entry of sentencing, which showed two dates under sentencing: "10/9/2020" and 

"02/01/2021 (Restitution Hearing)."

Eight months later, as McBride's probation was ending, his probation officer filed 

a violation report and affidavit, listing McBride's failure to make monthly payments as 

the only alleged violation, noting that he still owed the full amount of restitution imposed. 

McBride admitted he had made no restitution payments during his probation term. The 

State recommended the court reinstate and extend probation for another 12 months, while 

McBride asked the court to consider sending the unpaid amount of restitution to 

collections and allow his probation to terminate. The court decided to extend McBride's 

probation for 12 months.

McBride timely appealed.

ANALYSIS

McBride argues that the district court imposed an illegal sentence when it ordered 

him to pay restitution at a separate hearing without explicitly bifurcating or continuing 

sentencing to retain jurisdiction. Although he is appealing from the order extending his 

probation, he is challenging the legality of his sentence for the first time on appeal.

While typically appellants cannot raise new issues on appeal, "certain issues, such 

as subject matter jurisdiction or an illegal sentence, can be raised at any time regardless 

of whether the issue was presented to the district court." State v. Johnson, 309 Kan. 992, 

995, 441 P.3d 1036 (2019); see K.S.A. 2021 Supp. 22-3504(a) ("The court may correct 

an illegal sentence at any time while the defendant is serving such sentence."). Restitution 

is part of a defendant's sentence. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014); 

see also State v. Eubanks, 316 Kan. 355, 360, 516 P.3d 116 (2022) (considering illegal 
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sentence challenge based on restitution order for first time on appeal). As a result, 

McBride can challenge the legality of his restitution order on appeal for the first time.

Whether a sentence is illegal as defined by K.S.A. 22-3504 presents a question of 

law over which we exercise unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 

P.3d 1068 (2019). Relevant to this appeal, Kansas law defines an illegal sentence in part 

as one "[i]mposed by a court without jurisdiction." K.S.A. 2021 Supp. 22-3504(c)(1). 

Since McBride's argument relates to jurisdiction, that determination also presents a 

question of law subject to unlimited review. State v. Lundberg, 310 Kan. 165, 170, 445 

P.3d 1113 (2019).

McBride claims his sentence is illegal because the district court lacked jurisdiction 

to impose restitution after the first hearing. As support, he relies on a trio of cases issued 

by the Kansas Supreme Court in 2014: Hall, 298 Kan. 978; State v. Frierson, 298 Kan. 

1005, 319 P.3d 515 (2014); and State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014).

In Hall and Frierson our Supreme Court held that "[b]ecause restitution 

constitutes a part of a defendant's sentence, . . . [u]ntil any applicable restitution amount 

is decided, a criminal defendant's sentencing is not complete." Hall, 298 Kan. 978, Syl. 

¶ 1; Frierson, 298 Kan. 1005, Syl. ¶ 7. Yet in reaching that holding, the court recognized 

it was still possible for the sentencing court to hold a separate hearing to establish

restitution and retain subject-matter jurisdiction over sentencing, explaining that courts 

must "specifically order the continuance or bifurcation" so that it may decide restitution 

at a later hearing. Hall, 298 Kan. 978, Syl. ¶ 2; Frierson, 298 Kan. 1005, Syl. ¶ 8.

In both cases, the Kansas Supreme Court upheld the restitution orders for similar 

reasons. At the sentencing hearing in Hall, the district court ordered restitution to remain 

open for 30 days at the State's request but did not hold a restitution hearing until 81 days 

later. At that hearing, Hall and his counsel were both present. Although the Kansas 
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Supreme Court disfavored allowing a "functional continuance" in this way, the court 

nonetheless upheld the restitution order imposed at the second hearing. Hall, 298 Kan. at 

987.

Similarly, in Frierson, the district court imposed an initial amount of restitution 

based on a theft but held restitution open for 30 days with the agreement of the parties so 

they could settle on the correct amount for injuries sustained by the victim. Within that 

time but without holding a hearing, the court entered a restitution order which defense 

counsel signed. On appeal, the Kansas Supreme Court upheld the restitution order, 

explaining that "we are satisfied that the spirit, if not the letter, of the procedure we set 

out for future cases in Hall was satisfied." Frierson, 298 Kan. at 1021.

Unlike these decisions, the Kansas Supreme Court vacated the restitution order in 

Charles. In that case, the district court announced at sentencing that restitution "'as 

contained within the presentence report will be ordered,'" without realizing that the PSI 

report detailed specific restitution amounts for some victims but listing the amount for 

one victim as "'to be determined.'" Charles, 298 Kan. at 995. The defendant promptly 

appealed and nearly a month later the court entered a restitution order requiring the

defendant to pay the specific amounts listed in the PSI but also setting an amount for the 

restitution owed to the remaining victim. On appeal, the Kansas Supreme Court found 

that the Hall and Frierson decisions compelled it to vacate the restitution ordered for the 

remaining victim because the district court did "nothing" to preserve jurisdiction or hold 

sentencing open. 298 Kan. at 1002 (noting there are no "'magic words'" needed to 

continue sentencing but doing "more than nothing has nevertheless been the rule"); see 

also State v. Davis, 50 Kan. App. 2d 725, 727-28, 333 P.3d 190 (2014) (upholding 

restitution order where court stated restitution was "'to be determined'" at a later hearing 

on initial journal entry).
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McBride's argument hinges on his belief that the district court did not do enough at 

the October 2020 hearing to preserve jurisdiction over restitution, by using imprecise 

language and not explicitly ordering a continuance or bifurcating the sentencing as 

anticipated in Hall and Frierson. The State responds that the record shows the parties and 

court agreed that restitution would be addressed by the court at a later hearing, and that 

the court stating there would be a "'separate hearing'" on restitution is the "functional 

equivalent of bifurcating the sentencing hearing."

Put simply, the procedures taken by the district court here more closely align with 

the facts of Hall and Frierson than Charles and show the court did enough to preserve 

jurisdiction. Although the court closed the first hearing without stating a specific timeline 

for addressing restitution—like the 30-day extensions in Hall and Frierson—the record 

shows that everyone knew McBride's sentencing would not be complete until restitution 

was resolved. At the request of both parties, the court explicitly stated it would "leave the 

sentencing open knowing that the restitution is going to be determined by the court at a 

future date." Likewise, McBride agreed to pay restitution in the plea agreement and his 

signed probation order reflected that the amount of restitution was "$TBD." Moreover, 

McBride never objected to any perceived delays in scheduling the restitution hearing and 

fully participated in the restitution hearing as if he understood his sentence was not yet 

complete. In sum, the district court here did "more than nothing" to preserve jurisdiction 

over restitution. See Charles, 298 Kan. at 1002.

As a final note, McBride also mentions that the district court advised him of his 

right to appeal the sentence after the first hearing and suggests that this fact demonstrates 

his sentence became a final and effective judgment at that time. The Kansas Supreme 

Court directly addressed this argument in Hall by holding that "a premature notice of 

appeal that seeks review of a conviction and sentencing yet to be completed lies dormant 

until final judgment including the entire sentence is pronounced from the bench." Hall, 

298 Kan. at 988. Thus, even if McBride had filed a notice of appeal right after the first 
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hearing—which he did not do—the district court's erroneous recitation of the notice of 

appeal deadline would not have changed the outcome here.

For these reasons, we conclude that the district court had the subject-matter 

jurisdiction to enter its restitution order at a second hearing. Thus, we affirm McBride's 

sentence.

Affirmed.