Opinion
NO. 2012-CA-000317-MR
03-29-2013
DESHAWN MAURICE HOWARD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven Buck Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 10-CR-01525
OPINION
REVERSING IN PART
AND REMANDING
BEFORE: ACREE, CHIEF JUDGE: CAPERTON AND NICKELL, JUDGES. NICKELL, JUDGE: Deshawn Maurice Howard was found guilty of criminal trespass in the first degree following a jury trial in Fayette Circuit Court. He appeals only that part of the final judgment ordering him to pay $874.00 in restitution.
Kentucky Revised Statutes (KRS) 511.060, a Class A misdemeanor.
Howard was charged in connection with a break-in at the apartment of Judy Blair in Delzan Place, Lexington. While Blair was out, someone kicked open her front door and removed an iPhone, a Bose music speaker, an iPod, a work bag, cosmetics and a work appointment book. The door frame was cracked as a result of the forced entry. A window screen next to the door appeared to be cut. The police lifted a partial palm print and two fingerprints from the window pane inside the screen, and matched them to Howard's prints. Howard was charged with second-degree burglary.
KRS 511.030, a Class C felony.
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At final sentencing, the Commonwealth Attorney stated Howard owed restitution in the amount of $874.00. Defense counsel asked how restitution was appropriate when Howard was convicted of criminal trespass and not burglary. Because the trial prosecutor was not present, the Commonwealth Attorney could not explain how the specific amount was calculated. Defense counsel argued that Howard was not found guilty of stealing anything, and if the Commonwealth wanted restitution, it should have arrested someone else and obtained a conviction for theft.
The trial court stated the jury probably felt Howard, along with others, was involved in the commission of the crimes at Blair's apartment. The court noted some of her items were missing and there was damage to her property. The court ordered Howard to pay restitution in the amount of $874.00 for the damage done to Blair's apartment. This appeal followed.
Howard argues the imposition of restitution was erroneous because the trial court failed to hold an adversarial hearing. The Commonwealth agrees.
Restitution is defined as "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[.]" KRS 532.350(1)(a). Restitution is mandatory under KRS 532.032(1) which states as follows:
Restitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563, 532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition.
Recently, the Supreme Court of Kentucky held that when the issue of restitution has not been resolved by an agreement between the Commonwealth and the defendant, an adversarial hearing must be held to satisfy constitutional due process. Jones v. Commonwealth, 382 S.W.3d 22, 31-32 (Ky. 2011). The Court specified the following protections must be provided:
• reasonable notice to the defendant in advance of the sentencing hearing of the amount of restitution claimed and of the nature of the expenses for which restitution is claimed; and
• a hearing before a disinterested and impartial judge that includes a reasonable opportunity for the defendant, with assistance of counsel, to examine the evidence or other information presented in support of an order of restitution; and
• a reasonable opportunity for the defendant with assistance of counsel to present evidence or other information to rebut the claim of restitution and the amount thereof; and
• the burden shall be upon the Commonwealth to establish the validity of the claim for restitution and the amount of restitution by a preponderance of the evidence, and findings with regard to the imposition of restitution must be supported by substantial evidence.
Id.
Thus, in accordance with Howard's arguments, and with the concurrence of the Commonwealth, we reverse that portion of the final judgment ordering restitution, and remand for an adversarial hearing in accordance with the requirements set forth in Jones, and with direction that any restitution order must be limited to losses suffered by the victim in connection with the crime of which Howard was found guilty.
ALL CONCUR. BRIEF FOR APPELLANT: Steven Buck
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky