Opinion
NO. 2012-CA-002018-MR
07-18-2014
LAWRENCE MCCROBIE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Roberts Horsman Assistant Public Defender 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NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 11-CR-00277
OPINION
AFFIRMING
BEFORE: CAPERTON, JONES, MOORE, JUDGES. JONES, JUDGE: Lawrence McCrobie appeals from a Hardin Circuit Court order directing him to pay restitution in the amount of $28,294.15. He argues that the trial court did not have jurisdiction to enter the restitution order, and that the restitution order failed to comply with the requirements of Kentucky Revised Statutes (KRS) 532.033(1) and (4).
McCrobie entered a plea of guilty to four counts of theft by unlawful taking over $500.00, for writing checks on behalf of the Elizabethtown Youth Soccer Association that were not for the benefit of that organization.
The Commonwealth's offer on a plea of guilty contained the following sentence recommendation:
Three (3) years on each count of Theft By Unlawful Taking Over $500, all to run consecutive, one with the other for a total of Twelve (12) years, with the Commonwealth recommending probation. Said probation is conditioned upon the defendant making full restitution, plus interest at the rate of 12% per annum, under KRS 533.030(3), with said interest to begin from date of theft; forfeiture of any and all seized items and/or assets; complete thirty-two (32) hours per week of employment, community service, or a combination of both and fine as set by the Hardin Circuit Court Judge.(Emphasis added). The final judgment, which was entered on May 8, 2012, provided that: "Defendant shall not be released from probation supervision until restitution has been paid in full and all other aspects of probation have been successfully completed." Following a hearing, the trial court entered an order on October 19, 2012, setting the restitution amount at $28,294.15. This appeal by McCrobie followed.
McCrobie argues that the trial court lacked jurisdiction to enter the restitution order 160 days after the entry of the final judgment. Because a challenge to jurisdiction is generally a question of law, our standard of review is de novo. Karem v. Bryant, 370 S.W.3d 867, 869 (Ky. 2012).
McCrobie contends that KRS 533.030(3) requires the trial court to order restitution at the time a judgment imposing a sentence of probation is entered:
When imposing a sentence of probation or conditional discharge in a case where a victim of a crime has suffered monetary damage as a result of the crime due to his property having been converted, stolen, or unlawfully obtained, . . . the court shall order the defendant to make restitution in addition to any other penalty provided for the commission of the offense.KRS 533.030(3).
He contends that this provision is in keeping with the rule that a circuit court loses jurisdiction over a defendant ten days after entry of the final judgment. Kentucky Rules of Civil Procedure (CR) 59.05; Silverburg v. Commonwealth, 587 S.W.2d. 241, 244 (Ky. 1979).
Alternatively, under KRS 431.200, a court may order restitution upon the filing of a verified petition made within ninety days of the date the sentence was pronounced. KRS 431.200. No such petition was filed in this case.
Under either scenario, McCrobie argues, the restitution order was entered long after the trial court had lost jurisdiction of his case.
McCrobie also acknowledges, however, that a panel of this Court recently held, in an unpublished opinion, that an order of restitution may be entered or modified after entry of judgment in cases in which probation is ordered, because the trial court maintains continuing jurisdiction over the probationer. Gilbert v. Commonwealth, 2013 WL 489808 (Ky. App. Feb. 8, 2013) (2011-CA-002107). Although a circuit court loses jurisdiction ten days after the entry of final judgment, such jurisdiction can be renewed or extended by statute or rule. Rollins v. Commonwealth, 294 S.W.3d 463, 466 (Ky. App. 2009). The Gilbert court held that KRS 533.020 provides statutory authority for such ongoing jurisdiction, without following the process of KRS 431.200, so long as probation is still in effect. "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). In Gilbert's case, the court concluded that
We recognize that unpublished opinions are non-binding on this panel. In accordance with CR 76.28(4)(c), we may consult such opinions for guidance when there is no published authority directly on point.
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.
Similarly, in McCrobie's case, he was made aware by the terms of his plea agreement and the terms of the final judgment, that he would be required to pay restitution. Because he was placed on probation, the trial court retained jurisdiction to enter the later order specifying the amount of restitution. We see no reason, nor has McCrobie provided any, to deviate from the reasoning of the Gilbert court.
Our conclusion is further supported by a recent opinion of the Kentucky Supreme Court, which states that "where a defendant effectively consents to the trial court's holding the restitution hearing after entry of the final judgment," as McCrobie did in this case, "or otherwise fails to object and raise the 'jurisdictional' question to the trial court[,]" the issue is waived and will not be addressed on appeal. Steadman v. Commonwealth, 411 S.W.3d 717, 725-26 (Ky. 2013).
McCrobie also argues that the restitution order did not comply with the terms of KRS 532.033 because it failed to specify that restitution should be paid to the court clerk, to specify the amount and frequency of each restitution payment or require the payment to be made in a lump sum. KRS 532.033(1), (4). This argument is unpreserved because it was never raised before the trial court, and consequently will only be reviewed for palpable error which affected McCrobie's "substantial rights" and resulted in "manifest injustice." Kentucky Rules of Criminal Procedure (RCr) 10.26.
The Commonwealth has noted that the final judgment did specify that an installment schedule for payment of the restitution was to be established by the probation officer. McCrobie did not bring an appeal from the final judgment challenging this arrangement. The record also contains a pro se motion for relief of fees, filed on March 14, 2013, in which McCrobie specifies that his restitution is set at $500 per month, to be paid within five years of conviction. Thus, the record shows that a schedule for method of payment was established, in accordance with the terms of the final judgment. McCrobie has failed to explain how this arrangement resulted in "manifest injustice."
As to the fact that the order failed to specify that restitution payments would be made through the circuit clerk, the Commonwealth points out that, although this method of payment would insure technical compliance with the terms of KRS 532.033(1), payment through the clerk would require McCrobie to pay an additional five percent service fee. KRS 533.030(3)(b). Under these circumstances, we cannot see that the failure of the court order to comply strictly with the statute in this regard affected McCrobie's substantial rights or resulted in manifest injustice.
The restitution order of the Hardin Circuit Court is therefore affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Roberts Horsman
Assistant Public Defender
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky