Summary
In Gilbert, while the defendant’s sentencing order was incomplete by ordering restitution but not specifying the amount, the defendant had "agreed to pay an indefinite amount of restitution as a condition of her probation and consented to have that amount later determined.
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NO. 2011-CA-002107-MR
02-08-2013
TAMATHA GILBERT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 11-CR-00092
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Pursuant to a plea agreement, Tamatha Gilbert was probated and, as a condition of probation, she was required to pay restitution in an amount "to be determined." After a hearing, the circuit court imposed restitution of $4,500. Gilbert challenges whether the circuit court had jurisdiction to impose restitution pursuant to this subsequent order and the process used.
Gilbert pled guilty to one count of theft by unlawful taking over $500 and being a second degree persistent felony offender pursuant to a plea agreement recommending a sentence of seven years probated to five, conditioned on making full restitution pursuant to KRS 533.030(3). The basis for the theft charge was that Gilbert took steel beams and tubing from Universal Interiors, a building firm, and sold them to a recycling center. The quantity of steel taken was not stated in the indictment or in the plea agreement, and the amount of restitution was not established in the plea agreement.
Gilbert claims that it was only after entering into her plea agreement on August 2, 2011, that she learned the Commonwealth was going to attempt to impose restitution upon her in excess of the amount contemplated when she entered into the agreement.
On September 13, 2011, at Gilbert's sentencing hearing, Gilbert challenged the presentence investigation report (PSI) that restitution of $4,500 was due and requested an adversarial hearing. Because Gilbert was challenging the amount of the restitution, the court indicated that the order would state "to be determined" instead of a set restitution amount, and that the parties could either agree on an amount, or the court would later determine the correct amount. Gilbert did not object to the circuit court's decision, or request that a restitution hearing be held prior to sentencing or attempt to withdraw her plea agreement and proceed to trial.
Gilbert was sentenced in accordance with the terms of her plea agreement. In the judgment and sentence on the plea of guilty (sentencing order) and the order of probation, Gilbert was ordered to pay restitution in an amount "to be determined." Gilbert did not appeal from the sentencing order.
After the parties were unable to reach an agreement on the amount of restitution, a restitution hearing was held on October 18, 2011. Although Gilbert contested the amount of restitution sought at the hearing, she did not object to the notice or process used.
The court heard testimony as to the quantity and value of the steel taken from Bruce Beasley, the owner of Universal Interiors. The court found Beasley's testimony more credible as to the quantity of the steel and that its fair market value was $4,500. On October 21, 2011, in the order to amend judgment and order imposing sentence (restitution order), Gilbert was ordered to pay $4,500 in restitution.
Gilbert appeals from the restitution order. She claims that the circuit court lacked jurisdiction to amend its judgment to add restitution under Rollins v. Commonwealth, 294 S.W.3d 463 (Ky.App. 2009), and that the order was a nullity, as is the portion of her sentencing order imposing restitution in an amount to be determined. She also claims her notice and opportunity to be heard on restitution violated minimal due process requirements.
"When the lower court is alleged to be acting outside its jurisdiction, as alleged in the present case, the proper standard is de novo review because jurisdiction is generally only a question of law." Karem v. Bryant, 370 S.W.3d 867, 869 (Ky. 2012).
In Rollins, the final judgment provided that Rollins pay restitution in an amount to be determined, a restitution hearing was never held, and the Commonwealth filed a motion to establish the amount of damages almost seven years after Rollins completed his sentence. Rollins, 294 S.W.3d at 464. This Court determined that the circuit court had no authority to impose restitution and reasoned as follows:
Although the plea agreement in this case included language that Rollins would agree to pay restitution, this is not sufficient to constitute an order of restitution. Rather, the mention of restitution in the plea agreement, at best, indicated that a restitution claim would be forthcoming from the Commonwealth. However, the Commonwealth failed to file a verified petition (or any motion to set restitution) either before sentencing or within ninety days of sentencing. This failure on the part of the Commonwealth could not be salvaged some seven years later via a "motion to establish damages."Id. at 466.
At the time the Commonwealth filed its motion, the trial court no longer had jurisdiction over Rollins. See, e.g., Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979) (Noting that a trial court loses jurisdiction over the defendant's case ten days after the entry of final judgment). A court loses jurisdiction ten days after the entry of final judgment, and such jurisdiction can only be renewed or extended by statute or rule. Indeed, a trial court's authority to order a defendant into court for the purpose of restitution is strictly statutory. KRS 431.200; KRS 532.032, et seq. As there is no applicable statute which would have extended jurisdiction to the court in this circumstance, it was acting without jurisdiction. As KRS 431.200 is the only statute dealing with post-sentencing orders of
restitution, its mandates must be met in order for the trial court to have jurisdiction. Here, a verified petition was not made, nor was the petition made within ninety days after sentencing, nor was Rollins in custody at the time of the order. As none of these requirements were met, the court had no authority to impose restitution upon Rollins.
However, the Court in Rollins stated in a footnote that its result would not necessarily be applicable to a case involving probation:
We note that our result may have been different were we dealing with a case involving probation or an alternative sentence instead of imprisonment, as KRS 533.020 provides that a trial court can modify or enlarge the conditions of probation at any time prior to the expiration of the alternative sentence. Here, there was no such statutory language extending jurisdiction, and furthermore, Rollins had served out his sentence and was no longer in custody.Id. at 466 n. 5. We agree that KRS 533.020 gives a trial court, which imposed probation, ongoing jurisdiction to order restitution more than ten days after sentencing without following the process of KRS 431.200.
When a defendant's sentence is probated, the sentencing court must order full restitution as a condition of probation under KRS 533.030. Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002). "Conditions of probation shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions . . . at any time prior to the expiration or termination of the period of probation." KRS 533.020(1). Modifying a sentence to probation does not impact the finality of a judgment which includes such a sentence. KRS 533.020(5).
The court retains authority to modify the terms of probation to ensure that restitution is paid in full. Because probation is a privilege rather than a right, a probationer only has the right to remain on probation while the trial court is satisfied that the probationer is complying with the conditions of probation. Tirung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.App. 1986). Unlike Rollins, in which the court lost jurisdiction, a court imposing probation does not lose jurisdiction to modify a sentence to probation because there is statutory authority for ongoing jurisdiction so long as probation is still in effect.
Because there is an applicable statute extending jurisdiction during the term of probation, the circuit court had jurisdiction to alter the terms of Gilbert's probation to fix a restitution amount and did not have to act within ten days after the entry of final judgment or pursuant to KRS 431.200. Although Gilbert's sentencing order was incomplete under KRS 532.033, the court had jurisdiction to modify her probated sentence in its restitution order to comply with the requirements of KRS 533.030 that full restitution be ordered, and KRS 532.033(8) and KRS 533.020(4), that probation continue until restitution was paid in full.
The modification of Gilbert's probated sentence under KRS 533.020(1) to add the specific amount of restitution was proper. Gilbert agreed to pay an indefinite amount of restitution as a condition of her probation and consented to have that amount later determined. Under these circumstances, the restitution order is valid, so long as the restitution process satisfied due process requirements.
The due process needed for restitution to be ordered pursuant to KRS 532.032 requires that the defendant have a meaningful opportunity to be heard and that the award be based on reliable facts. Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010); Fields v. Commonwealth, 123 S.W.3d 914, 917-918 (Ky.App. 2003).
The imposition of restitution satisfied due process. Gilbert had appropriate notice that restitution would be sought and consented to restitution as part of her plea agreement. She had access to the PSI which provided the factual basis for the amount of restitution sought. She had time to prepare before a hearing was held on restitution before a neutral arbiter. Beasley's testimony stated the number and type of steel beams and tubing stolen and provided a valuation for the missing steel. Gilbert was able to cross-examine Beasley. She was also allowed to call witnesses. She testified as to the quantity and type of steel stolen and its valuation. After hearing the evidence, the circuit court made a credibility determination and imposed an amount of restitution based upon reliable facts. This process was more than sufficient.
Accordingly, we affirm the Hardin Circuit Court's restitution order imposing $4,500 restitution as a condition of probation.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky