State of Kansas, Appellee, v. Wendy Sincere Scott, Appellant. (2026)

MEMORANDUM OPINION

After her convictions for kidnapping, aggravated robbery, and criminal threat, Wendy Sincere Scott appeals the district court's decision to conduct her sentencing hearing by Zoom instead of in her physical presence. Scott also appeals the district court's restitution order. On our thorough review of the record, we affirm Scott's sentence, vacate the restitution order, and remand for the district court to conduct a new restitution hearing for the reasons outlined below.

Background

In July 2024, the State alleged that Scott and another person convinced an 86-year-old woman to drive them to the hospital under the guise of a fake medical emergency. Once on the road, the offenders directed the victim into a rural area, threatened to shoot her with a firearm, injured her by pulling her out of the car, and drove away in the victim's car with the victim's purse.

The State charged Scott with six felonies arising out of that incident, including kidnapping, aggravated robbery, criminal threat, mistreatment of a dependent adult or an elder person, theft, and interference with law enforcement. As the case progressed, Scott entered no contest pleas to an amended kidnapping charge—decreasing the severity level of that crime—along with one count each of aggravated robbery and criminal threat. Under the agreement, the remaining charges were dismissed, and the State agreed to request that the sentences run concurrently.

At the end of the plea hearing the district court set the sentencing hearing to proceed by Zoom, as all hearings had been held throughout the life of the case. When scheduling the sentencing hearing, the district court judge stated, “I think we'll—we can still go ahead and conduct this proceeding by Zoom. I note Ms. Scott is in custody. And I do recall that [the victim] is—is elderly. I believe Zoom might accommodate her better.” Scott did not object.

The sentencing hearing was held in April 2025. Scott was not physically present in the courtroom during this hearing but appeared by Zoom from the detention center. Once again, neither defense counsel nor Scott raised an objection to proceeding in this manner.

At the sentencing hearing, the State announced, “There is no request for restitution.” Additionally, in a document submitted prior to sentencing and titled “Office of the Butler County Attorney Restitution Form,” the victim indicated that no amount of restitution was requested. However, in an undated form titled “Victim Impact Statement,” the victim wrote that her purse and all the items inside were missing and there were $1,000 in charges on her credit card. During the sentencing hearing the victim said, “And they had my purse. They spent $1,000; they used a credit card; they—I think they bought gas.” At that same hearing, the victim's niece addressed the defendant and alleged Scott “took off with the car, the purse, a dog, and then bought four cell phones with [the victim's] credit card.”

Despite Scott's departure request, the district court sentenced her to three consecutive prison sentences—a total term of 276 months—and rejected the durational departure request. The district court also ordered Scott to pay $1,000 in restitution to the victim. The district judge stated that there was a statement before the court indicating there was a $1,000 loss to the victim, so “Whether the State's requesting restitution or not, this victim is entitled to it.”

Scott timely appealed.

Analysis

I. The Zoom Sentencing Hearing

Scott argues that the district court violated her constitutional and statutory rights to be present at critical stages in her criminal proceedings when the district court held her sentencing hearing over Zoom instead of in Scott's physical presence in the courtroom. Scott further argues that she did not waive her right to be present in the courtroom.

Scott did not raise this issue before the district court, so generally, her claim may not be raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). But there are exceptions to this rule, including that (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court was right for the wrong reason. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021). An appellate court's decision to review an unpreserved claim under an exception is prudential—that is, even if an exception applies, the appellate court is not obligated to review the claim. State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021).

Scott argues the first and second exceptions allow us to consider this issue even though she made no objection to the remote proceedings in the district court. We agree.

The first exception is available when additional factfinding by a district court is unnecessary to resolve the legal issue. Allen, 314 Kan. at 284; see State v. Ervin, 320 Kan. 287, 306, 566 P.3d 481 (2025). Here, deciding the merits of this question does not require us to make any factual findings, “such as credibility determinations, resolving evidentiary conflicts, and reweighing evidence.” Allen, 314 Kan. at 284. The record reflects that Scott was not physically present in the courtroom at sentencing, that sentencing was held by Zoom, and that an affirmative waiver of physical presence in the courtroom was not obtained.

The second exception allows consideration of an issue not raised before the district court to prevent the denial of a fundamental right, if factual findings are unnecessary. Allen, 314 Kan. at 283. The right to be present at every critical stage of a criminal proceeding is protected by the United States Constitution and Kansas statute. State v. Bolze-Sann, 302 Kan. 198, 215, 352 P.3d 511 (2015); K.S.A. 22-3405(a). And, our Kansas Supreme Court has found that a defendant has the right to be present at a continued sentencing hearing because it is a critical stage in a criminal proceeding. State v. Hall, 298 Kan. 978, 987, 319 P.3d 506 (2014).

We find that both the first and second preservation exceptions apply and address this issue on its merits, because Scott's claim that the Zoom proceeding did not satisfy her right to be present at sentencing involves a question of law on admitted facts and she asserts a denial of fundamental rights.

Whether the defendant's right to be present at a critical stage has been violated is a question of law that is reviewed de novo. State v. McDaniel, 306 Kan. 595, 600, 395 P.3d 429 (2017).

As noted above, the defendant has a right to be present at critical stages of the criminal proceeding, including sentencing. Hall, 298 Kan. at 987. This right is codified in K.S.A. 22-3405(a): “The defendant in a felony case shall be present ․ at the imposition of sentence.” The right to be present at sentencing “has been said to be a common law right, separate and apart from the constitutional or statutory right to be present at the trial.” State v. Fennell, 218 Kan. 170, 176, 542 P.2d 686 (1975). Cases where a defendant has been both physically and electronically absent from the courtroom provide underlying rationales for the right to be present at sentencing and guide us in considering whether Scott's Zoom sentencing hearing achieved those aims.

Kansas caselaw has recognized several purposes for the defendant's presence at sentencing. One rationale is to allow the defendant to be immediately taken into custody—a benefit, then, to the State. For the defendant's benefit, though, is that personal presence allows a defendant to exercise the right of allocution. 218 Kan. at 177. The right of allocution is statutory and requires the sentencing court to “address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment.” K.S.A. 22-3424(e)(4); see also State v. Webb, 242 Kan. 519, 528, 748 P.2d 875 (1988) (interpreting Fennell as “implicitly finding the right of allocution to be substantial”).

Another reason for the defendant's presence in the courtroom at sentencing is so the court can communicate the sentence directly to the defendant. A sentence is effective when it is pronounced from the bench and if that pronouncement conflicts with the written journal entry, it is resolved in favor of the oral announcement. Abasolo v. State, 284 Kan. 299, 304-05, 160 P.3d 471 (2007).

“The rationale for these rules is that announcing the sentence in the defendant's presence ‘protects the defendant's rights, as “[t]he defendant is personally present ․ and thus knows that at that moment he or she has been sentenced, fined, or placed on probation, or that the imposition of sentence has been suspended.” ’ ” State v. Phillips, 289 Kan. 28, 33, 210 P.3d 93 (2009) (quoting Abasolo, 284 Kan. at 308).

See also State v. Turbeville, 235 Kan. 993, 1003-04, 686 P.2d 138 (1984) (holding proceedings that fix an erroneous sentence require the presence of the defendant); State v. Arrocha, 42 Kan. App. 2d 796, 798, 217 P.3d 467 (2009) (remanding due to failure to announce complete sentence at hearing).

Here, the record reflects that the sentencing hearing conducted by Zoom sufficiently satisfied all of these stated purposes for the defendant's presence. Scott's custody was not an issue because she was already in the State's custody. But Scott was able to personally exercise her right of allocution by videoconference during the sentencing hearing. And the record reflects that the district court clearly communicated the entirety of her sentence to Scott.

Scott does not present an appreciable argument that communication was thwarted to her detriment during the sentencing hearing. Although she protests that the record contained 69 instances of various speakers being “ ‘unintelligible,’ ” there was “ ‘inadequate audio,’ ” and Scott herself was “ ‘emotionally unintelligible,’ ” on our review, we find that these occurrences were limited to about eight times during her sentencing hearing. Five of the occurrences were when either the victim or her niece was addressing the district court. One happened during Scott's attorney's argument requesting a durational departure. The final two instances were the result of interruptions by Scott herself during the district court's sentence pronouncement. Scott has not convinced us that her actual sentencing hearing was negatively impacted by the videoconference procedure.

Scott points out that her counsel at sentencing referenced “ ‘the massive downside to video hearings’ ” in a written departure motion to the district court. But this statement related to counsel's argument that the victim's identification of Scott as the perpetrator during a previous Zoom hearing was suspect. The statement is not relevant in determining whether videoconferencing impacted the sentencing hearing or was anticipated by counsel to serve as a detriment to Scott during the hearing.

At the time of sentencing, the district court complied with the current Kansas Supreme Court Rules by utilizing Zoom for the hearing. “The court may use a telephone or other electronic conference to conduct any hearing or conference other than a trial on the merits.” Supreme Court Rule 145 (2026 Kan. S. Ct. R. at 227). Scott argues that the addition in October 2025 of Rule 103 on remote proceedings bolsters her position. Rule 103 on remote proceedings, however, was adopted after Scott's sentencing was held. Supreme Court Rule 103 (2026 Kan. S. Ct. R. at 167-69). Rule 145 is still in effect and was not removed from the rules by the addition of Rule 103. Even if Scott's argument is correct that the adoption of Rule 103 should carry some weight, her conclusion is faulty. Supreme Court Rule 103(a) gives the district court discretion to hold a proceeding remotely and “a court should consider it” under a provided list of circumstances, including when “a party, witness, attorney, or other participant expresses health concerns.” 2026 Kan. S. Ct. R. at 167-68. The district court here set the sentencing hearing by Zoom to accommodate the elderly victim and neither party raised an objection. Finally, Rule 103 prohibits remote proceedings that conflict with a defendant's rights. Supreme Court Rule 103(e)(1) (2026 Kan. S. Ct. R. at 168). Its adoption is neutral as to the question presented here, because we find none of Scott's rights were violated.

The Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment are implicated in the right to be present at critical stages. State v. Harrison, 311 Kan. 848, 855, 467 P.3d 477 (2020) (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 [1985]). The Kansas statute that codifies the right to be present is “ ‘analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause ․’ ” McDaniel, 306 Kan. at 600; see K.S.A. 22-3405(a).

Scott has not specifically argued or identified how these constitutional rights have been particularly infringed by the videoconferencing process. “[T]he primary concern of the Confrontation Clause ․ “ ‘guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” ’ ” State v. Ivy, 65 Kan. App. 2d 727, 741, 571 P.3d 46 (2025) (quoting Maryland v. Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 111 L. Ed. 2d 666 [1990]). The right to confrontation operates at trial and presents limited application to sentencing. State v. Leshay, 289 Kan. 546, 551-52, 213 P.3d 1071 (2009); see also State v. Marquis, 292 Kan. 925, 931, 257 P.3d 775 (2011) (holding Sixth Amendment right to confrontation does not apply to probation revocation hearings).

The right to be present for due process purposes applies outside trial “ ‘to the extent that a fair and just hearing would be thwarted by [the defendant's] absence, and to that extent only.’ ” McDaniel, 306 Kan. at 601 (quoting Gagnon, 470 U.S. at 526). In McDaniel, the defendant was not present during a portion of a preliminary hearing. On appeal, the court held that McDaniel's absence was a violation because his participation at the preliminary hearing was needed to resolve an issue related to his ability to defend himself at trial. 306 Kan. at 602-03. Here, Scott actively participated in her sentencing.

Due process interests have been raised when proceedings were not translated into a language that could be understood by the defendant or when videoconferencing limited the defendant's ability to participate. In State v. Calderon, 270 Kan. 241, 253-54, 13 P.3d 871 (2000), the court found a due process violation because the defendant was not provided with a translator during closing argument. “To be ‘present’ requires that a defendant be more than just physically present. It assumes that a defendant will be informed about the proceedings so he or she can assist in the defense.” 270 Kan. at 253. In a Texas case, the Court of Criminal Appeals found a defendant's due process right to be present was violated when the court muted him during a Zoom hearing and caused him to lose the ability to communicate with counsel. Hughes v. State, 691 S.W.3d 504, 522 (Tex. Crim. App. 2024). The appeals court observed, the defendant “was reduced to a silent portrait of a man.” Hughes, 691 S.W.3d at 522. Scott does not argue in this appeal that her Zoom sentencing hearing was detrimental to her ability to be informed similarly to the situation in Calderon, nor does she argue or present circumstances that the proceedings limited her participation as displayed in Hughes.

Due process challenges to videoconferences have been raised in Kansas Court of Appeals cases where termination of parental rights were at issue. Conducting a parental termination of rights hearing by videoconference was not a “per se violation ․ so long as adequate safeguards for the full, meaningful participation of all parties are determined by the district court to be present.” In re C.T., 61 Kan. App. 2d 218, 233, 501 P.3d 899 (2021). A panel of this court applied the holding from In re C.T. to a case where the termination of parental rights hearing was held by Zoom and the father stated during the hearing that he could not hear the judge. In re S.G., No. 123,633, 2022 WL 570994, at *8 (Kan. App. 2022) (unpublished opinion). The panel found that there had not been a due process violation because the district court had immediately solved the audio issue, confirmed participants could see each other, and ensured the father and his attorney could meet privately in a breakout room. 2022 WL 570994, at *8. Scott has not argued that audio was faulty or other concerns raised in In re S.G. had occurred at her sentencing hearing.

Scott's right to be present at her sentencing hearing was satisfied by the Zoom proceeding. The purposes of the right to be present at sentencing were served through the videoconference and there is no indication in the record that the proceedings were somehow detrimental to Scott. She was able to exercise her right to allocution, fully participate in the proceeding, and hear the pronouncement of her sentence, and we affirm the imposition of her sentence.

II. Restitution

Scott presents two arguments challenging the district court's restitution order. First, Scott argues that the district court's order was not supported by substantial competent evidence. Second, Scott argues the victim's losses were not causally linked to the crimes of conviction. We address her arguments in reverse order.

A challenge to the sufficiency of evidence supporting a restitution order does not require an objection below to preserve the issue for review. State v. Humphrey, 320 Kan. 348, 351, 568 P.3d 506 (2025).

An abuse of discretion standard is applied on appellate review of restitution orders when the issue is the “ ‘amount of restitution and the manner in which it is made to the aggrieved party ․’ ” State v. Union, 319 Kan. 214, 219, 553 P.3d 320 (2024). An abuse of discretion occurs when “ ‘(1) [the judicial action] is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.’ ” 319 Kan. at 219. Restitution awards must be supported by substantial competent evidence. Humphrey, 320 Kan. at 352.

“ ‘[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.’ ” Union, 319 Kan. at 219. “ ‘Substantial competent evidence is “such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” ’ ” Union, 319 Kan. at 219.

We first address Scott's argument on causation. She says her convictions—for kidnapping, aggravated robbery, and criminal threat—were connected to the victim and her car and did not cause the credit card charges. But we have little trouble finding causation here. “[T]he causal link between a defendant's crime and the restitution damages for which the defendant is held liable must satisfy the traditional elements of proximate cause: cause-in-fact and legal causation.” State v. Arnett, 307 Kan. 648, 655, 413 P.3d 787 (2018). “[C]ausation-in-fact requires proof that it is more likely than not that, but for the defendant's conduct, the result would not have occurred.” 307 Kan. at 654. Legal causation presents a limitation on the defendant's liability unless “it was foreseeable that the defendant's conduct might have created a risk of harm and the result of that conduct and any contributing causes were foreseeable.” 307 Kan. at 655.

In Arnett, the Kansas Supreme Court found both causation-in-fact and legal causation. 307 Kan. at 655-56. Arnett pleaded guilty to conspiracy to commit burglary after lending a car to others for the purpose of breaking into houses. Our Supreme Court upheld a restitution award that included damages and property loss from the burglaries committed by others. 307 Kan. at 656.

Here, the victim informed the district court at the sentencing hearing that Scott took her purse and $1,000 was spent on her credit card, which reflected the same information from the victim impact statement. Additionally, in the victim's narrative of the crime in the presentence investigation report, the victim wrote that the defendant “told me to get out of the car [and] to hand my purse to her.” But for the defendant's conduct, the credit card would not have been taken and it was foreseeable that this conduct created a risk of harm that the credit card would be used illegally. The loss that occurred was causally linked to the crimes, and both cause-in-fact and legal cause were present. We find substantial competent evidence to support the district court's causation conclusion and no abuse of discretion on that point.

But whether the evidence was sufficient to sustain the restitution award is a different question. Scott argues there was no evidence that the victim sustained a personal loss of $1,000 because charges on a stolen credit card would have been voided by the credit card company. Scott supports her argument by pointing to a statement from Brian Dunlap, a witness who encountered the victim after she had been abandoned by the roadside in a rural area. That witness testified that he knew that the sheriff's department instructed the victim to “call her bank to shut off her credit cards, because she was worried about them using her credit cards.”

This is the only time the victim's credit card was discussed at the evidentiary preliminary hearing. As additional support, Scott suggests that there was no personal loss because the victim wrote that no restitution was requested on the Butler County restitution form. We acknowledge also that the State clearly declined to seek restitution at sentencing.

We cannot speculate whether the victim had the transactions voided and, consequently, did not list an amount on the form, or whether she declined to seek restitution because she suffered no personal loss. As an appellate court, we may not “ ‘weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact.’ ” Union, 319 Kan. at 220.

Although Scott does not dispute there may have been a $1,000 loss, she rightfully disputes whether that loss was fairly sustained by the victim or by the victim's credit card company, bank, or other entity. We recognize that courts have held that restitution awards may be made to an insurance carrier and other “aggrieved” parties, and the insurance carrier incurring the loss is not required to request restitution. State v. Robison, 58 Kan. App. 2d 380, 393-95, 469 P.3d 83 (2020), aff'd 314 Kan. 245, 496 P.3d 892 (2021). But in such cases, the entity actually suffering the loss has been clear.

Here, the record before us is entirely unclear whether the victim was made whole by her bank or credit card company for the charges on her account, and if a person or entity did suffer a loss, what person or entity actually suffered the loss. The district court abused its discretion by failing to make the factual findings necessary. As a result, we affirm Scott's sentence, vacate the restitution order, and remand this case for a new restitution hearing to determine the answers to such questions.

Affirmed in part, vacated in part, and remanded with directions.

Per Curiam: