Opinion
NO. 2012-CA-000551-MR
02-22-2013
JEREMY ELLIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 09-CR-00007
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. COMBS, JUDGE: Jeremy Ellis appeals the order of the Carlisle Circuit Court which imposed a judgment of restitution in the amount of $881,568.88. After our review, we affirm.
In 2010, Ellis was convicted of second-degree arson, tampering with physical evidence, and burglary in the third degree. He had set fire to the Carlisle County Courthouse, which was a total loss. At his sentencing, the trial court set Ellis's restitution obligation at $2,400,000. This court reversed the order and remanded for more fact-finding.
A restitution hearing was held on February 16, 2012. Greg Terry, the County Judge Executive, testified that the old courthouse building had been insured for $1,217,200 as well as for an additional $175,000 for the contents. Carlisle County actually received insurance proceeds of $2,733,319 because rental and other expenses were covered by the policy.
Richard Mitchell, the project manager for Codell Construction, testified that total costs for the new courthouse were $11,582,749.96. Mitchell testified that if the old courthouse had been rebuilt on the same site according to 2010 standards, the cost would have been $3,254,888. He noted, however, that a building with the same square footage as the old courthouse would not be in compliance with current standards set by the Administrative Office of the Courts (AOC).
The trial court subtracted the total insurance proceeds from the estimated cost of rebuilding the old courthouse and set restitution at $881,568.88. This appeal follows.
Restitution is "any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act[.]" Kentucky Revised Statute[s] (KRS) 532.350(1)(a). A judge sets the amount by appropriate order. KRS 532.033. The trial court has broad discretion in determining restitution. Jones v. Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011). The trial court must exercise its discretion within the framework of constitutional due process: (1) there must be reasonable notice to the defendant; (2) the defendant is entitled to a hearing in which he may be represented by counsel; (3) the defendant must be given the opportunity to present evidence to rebut the claim of restitution; (4) the burden of proof is on the Commonwealth; and (5) the findings of the court must be supported by substantial evidence. Id. Our review is limited to whether the trial court abused its discretion. Fields v. Commonwealth, 123 S.W.3d 914, 917 (Ky. App. 2003).
Ellis argues that it was improper for the court to base the restitution amount on the cost of replacement because the county had been made whole by the insurance proceeds. Ellis makes this claim by arguing that the county's loss was the value placed on the old courthouse by the insurance company: $1,271,200. We disagree.
This case is highly similar to an Eleventh Circuit case, U.S. v. Shugart, 176 F.3d 1373 (11th Cir. 1999). In Shugart, the defendants had been convicted of arson after burning down a church. Like Ellis, they argued that it was error for the restitution amount to be based on the cost of rebuilding. However, the court held:
In our view, the district court in this case did not abuse its discretion in ordering restitution in an amount necessary to rebuild the Church. A church is not a fungible commodity. . . . A congregation rarely sells its church so that its members can relocate to a new city or a new neighborhood. A church is unique, and is valued by its members, precisely because of its location, its design,Id. at 1375.
and the memories it evokes. None of these characteristics can be recreated by purchasing an alternate structure in another city or neighborhood, even if such a structure were available. In sum, actual cash value is not, in our view, an appropriate measure of value in this case. We conclude that the district court properly determined that the only effective way to return to the victims the fair equivalent of what they lost is to rebuild a church comparable in size and design on the same lot where the original church stood. That is the only result that even comes close to returning to the victims what they had before February 22, 1997.
We are persuaded that a courthouse evokes similar sentiments as does a church in the words of the Eleventh Circuit. It is clearly unique and serves the entire community. Community history, associations, and memory are centered on a courthouse, which is often the focal point of a rural area such as Carlisle County. A replacement cannot be easily attained. Additionally, in this case, there was testimony that the citizens of Carlisle County spent three years without a courthouse.
We also note an unpublished Kentucky case dealing with the issue of restitution in which our Court held that it was appropriate to use the cost of replacement for a door damaged in the course of a burglary. K.B. v. Commonwealth, 2012 WL 28679 (Ky. App. Jan. 6, 2012). The Court held that even though the old door had been completely depreciated, the cost for replacement was within the trial court's discretion. Id. at *2.
Ellis contends that there was no factual basis for the amount of restitution set by the court. However, there was lengthy testimony by a project manager who is experienced with building courthouses throughout Kentucky. He assured the court that the insurance proceeds were inadequate for what the cost of rebuilding the old courthouse would have been. In spite of the fact that a courthouse in the "old footprint" would not have met the current standards set by the AOC, the trial court did not use the actual cost of replacement -- which was nearly twelve million dollars. Therefore, using the difference between the insurance proceeds and the cost of a hypothetically rebuilt old courthouse to set restitution clearly was not an abuse of discretion. If anything, it was an exercise of judicial leniency and restraint.
We affirm the Carlisle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Roberts Horsman
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky