Opinion
NO. 2019-CA-000396-MR
05-29-2020
ALFRED CROSS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 16-CR-00487 OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES. CALDWELL, JUDGE: Appellant, Alfred Cross, was indicted by the McCracken County grand jury on charges of complicity to theft by deception of $10,000 or more. In 2016, he and a co-defendant opened a checking account at Community Financial Services Bank (CFSB) and he caused a check, which was ultimately not honored, to be deposited in the account. Between the time of deposit and the notification of the lack of sufficient funds to negotiate the check, Cross and his co-defendant wrote checks on the CFSB account in the amount of $25,520.15.
The Commonwealth offered to amend the charge to one count of theft by deception over $500 and recommended a sentence of eighteen (18) months' imprisonment if Cross agreed to pay restitution to CFSB. Cross accepted, entering a plea of guilty while maintaining his innocence, but acknowledging that the Commonwealth had sufficient evidence to support the charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
The trial court accepted the plea agreement and entered final judgment with a sentence of imprisonment reflecting the substance of the agreement, ordering that 5% restitution interest be added to the $25,520.15 in restitution and that monthly payments of $300 commence within sixty (60) days of Cross completing his sentence. An appendix was affixed to the judgment titled, "Restitution." It listed the amount of restitution as $22,760.70. Cross now appeals, alleging that the trial court erred in ordering him to pay restitution, despite the fact he entered into a plea agreement agreeing to be subject to restitution.
This issue was not preserved as this was a plea agreement. Cross asks that we review this issue for manifest injustice under RCr 10.26. "RCr 10.26 review differs from review of preserved errors in that the critical determination for this Court in a 'palpable error' case is whether the defendant suffered 'manifest injustice.'" Young v. Commonwealth, 25 S.W.3d 66, 74 (Ky. 2000). We find that as Cross received what he bargained for, there was no manifest injustice and affirm the trial court.
Kentucky Rules of Criminal Procedure. --------
Cross voluntarily entered into the plea agreement. He could have rejected the offer if he believed he would be unable to pay restitution upon his release, but at the time of the bargain, he apparently believed the offer was fair and he would be able to perform per the agreement. To find otherwise is to find that Cross did not enter into the plea agreement in good faith.
In Commonwealth v. Morseman, the Appellee was charged with arson and entered into a plea agreement, agreeing to pay a stipulated amount of restitution to the insurance company which covered the fire loss. Before entry of judgment, an itemization of the amount paid out by the insurance company was provided to the Appellee and he balked at paying portions which he argued were not directly related to his criminal acts. The Kentucky Supreme Court found that as the Appellee had agreed to the amount of restitution, he should be held to his bargain.
Before a plea agreement, a defendant is in a position to evaluate the evidence against him and discuss with counsel the options available to him. Here, a grand jury found probable cause to indict Appellee for arson, he was given an opportunity to cross-examine the investigating officer at a suppression hearing, and he made a reasoned,
deliberate choice to enter into the plea agreement with the Commonwealth. In short, he was given "'a meaningful choice between the probable outcome at trial and the more certain outcome offered by the plea agreement.'" Commonwealth v. Elza, 284 S.W.3d 118, 122 (Ky. 2009) (quoting Vaughn v. Commonwealth, 258 S.W.3d 435, 439 (Ky. App. 2008)). Appellee freely and voluntarily entered into the plea agreement and must be bound by the terms he agreed to, including the restitution provision.379 S.W.3d 144, 152 (Ky. 2012).
When restitution has been bargained for as part of a deal to avoid trial and provide certainty of punishment, due process considerations are not implicated as when restitution is ordered by the trial court without an agreement. Cross cites Jones v. Commonwealth, 382 S.W.3d 22 (Ky. 2011), and argues that the decision in that case mandates reversal in this case. However, in that matter there was no agreement as to restitution between Jones and the prosecution. Rather, Jones entered a guilty plea and received a sentence recommendation, but the matter of restitution was not bargained between the accused and the prosecution; it was wholly imposed by the trial court. Thus, that case is not applicable to this circumstance.
Similarly, Cross cites Fields v. Commonwealth, 123 S.W.3d 914 (Ky. App. 2003), wherein the Appellant agreed to plead guilty and pay restitution, but the amount of restitution was not agreed upon, and he objected at sentencing when the Commonwealth sought much more in restitution for his theft of items from his employer than he had anticipated. The difference here, of course, is that Cross agreed to pay restitution and agreed to pay a particular amount in restitution.
Lastly, Cross alleges that as there is a different amount listed in a document entitled "Restitution" found by the trial court than is listed on the judgment, the entire restitution amount has no "factual predicate" and should be stricken from the judgment. First, this issue was waived as there was no objection to the document entitled "Restitution" which lists an amount of restitution $200 more than what was ordered. Second, the error, if any, was to Cross's benefit as the judgment recites the lesser amount, so any error could not be properly considered manifest injustice.
For all of the foregoing reasons, the trial court's judgment is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky