Opinion
NO. 2016-CA-000184-MR
06-09-2017
BOBBY FLATT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Bobby Flatt, pro se Russell Springs, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 11-CR-00234 OPINION
AFFIRMING
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BEFORE: DIXON, JOHNSON AND MAZE, JUDGES. DIXON, JUDGE: Bobby Flatt appeals from an Order of the Bullitt Circuit Court that denied his motion to reconsider his motion to declare himself a pauper and set aside his obligation to pay restitution filed pursuant to Kentucky Rule of Civil Procedure (CR) 60.02(f) and Kentucky Rule of Criminal Procedure (RCr) 10.26. We affirm.
In August, 2011, Bobby Flatt was indicted for theft by unlawful taking-auto (Kentucky Revised Statute (KRS) 514.030), first-degree fleeing or evading police (KRS 520.095), driving under the influence, first offense (KRS 189A.010), and for being a first-degree persistent felony offender (KRS 532.080). On February 21, 2012, Flatt pleaded guilty to the offenses of theft by unlawful taking-auto, first-degree fleeing or evading police, and driving under the influence, first offense, with the persistent felony offense charge being dismissed pursuant to an agreement with the Commonwealth for a recommendation of sentence of seven years' imprisonment. Also as part of the agreement, the Commonwealth recommended that, in the event of early release, Flatt would pay $1500 in restitution to the owner of the stolen automobile at a rate of $100 per month. On February 28, 2012, the circuit court entered an Order sentencing Flatt according to the Commonwealth's recommendation.
On October 7, 2015, Flatt filed his combined CR 60.02 and RCr 10.26 motion requesting the circuit court declare him a pauper in accordance with KRS 453.190 and set aside his obligation to pay restitution. On November 5, 2015, the circuit court denied the motion. Thereafter, Flatt filed Motion to Reconsider and to Make Additional Findings of Fact pursuant to CR 59.05 and CR 52.02. On January 19, 2016, the circuit court denied the motion to reconsider and this appeal followed.
Our standard of review in a denial of a CR 60.02 motion is abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," the circuit court should be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Under RCr 10.26, an unpreserved error may only be corrected on appeal if the error is both "palpable" and "affects the substantial rights of a party" to such a degree that it can be determined "manifest injustice resulted from the error." Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014). For error to be palpable, "it must be easily perceptible, plain, obvious and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). The rule's requirement of manifest injustice requires "showing ... [a] probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Stated differently, a palpable error is where "the defect in the proceeding was shocking or jurisprudentially intolerable." Id. at 4. Ultimately, "[m]anifest injustice is found if the error seriously affected the fairness, integrity, or public reputation of the proceeding." Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (quoting McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012)).
Flatt claims the circuit court erred by failing to have a hearing on his financial situation and denying his motion without making a finding on whether he was a pauper and whether he was unable to pay the restitution in the foreseeable future, relying on KRS 23A.205 and the unpublished case of Wallace v. Commonwealth, 2013-CA-001031, 2015 WL 603395 (Ky. App. 2015). First, KRS 23A.205 does not apply because it deals with the imposition of court costs, not restitution. Second, as the circuit court noted in its order denying Flatt's motion, Wallace is distinguishable because it did not involve an order to pay restitution pursuant to a guilty plea wherein the defendant specifically agreed to the amount and payment of restitution. During the guilty plea hearing, the circuit court read each of the Commonwealth's recommendations to Flatt including the recommendation that upon early release, Flatt would be obligated to pay $1500 in restitution at the rate of $100 per month, and he acknowledged that he understood that recommendation. Thus, Flatt voluntarily accepted the obligation to pay the restitution amount. In addition, prison records indicate that Flatt was released on parole in October 2016. Since he is no longer incarcerated, Flatt has the ability to obtain employment and cannot object to complying with his plea agreement to pay the restitution. Therefore, the circuit court did not abuse its discretion in denying his motion under CR 60.02. Flatt also has not shown that the circuit court committed a plain error or that he has suffered manifest injustice as required for relief under CR 10.26.
For the foregoing reasons, the order of the Bullitt Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Bobby Flatt, pro se
Russell Springs, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky