Opinion
NO. 2014-CA-001590-MR
01-22-2016
CURTIS MCGRUDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joshua M. Reho Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 13-CR-000870 OPINION
AFFIRMING BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. CLAYTON, JUDGE: This is an appeal from the imposition of restitution after a bench hearing brought by the Appellant, Curtis McGruder. Based upon the following, we affirm the decision of the trial court.
BACKGROUND SUMMARY
David Neison's 2012 Honda Accord was stolen from his garage on January 27, 2013. On February 1, 2013, Jeffersontown Police Officers arrested McGruder after they stopped him while driving the vehicle. After a search of the vehicle, it was released back to Neison. McGruder was indicted by the Jefferson County Grand Jury for Receiving Stolen Property (RSP) over $10,000, Possession of Synthetic Cannabinoid Agonists or Piperazines (PSCAP), and Persistent Felony Offender (PFO) II. Pamela Pham, who was also in the vehicle at the time of the stop, was also indicted on the first two charges.
On May 27, 2014, McGruder pled guilty to PSCAP and RSP over $10,000. The Commonwealth moved to dismiss the PFO II charge in exchange for McGruder's plea of guilty. It recommended a total sentence of five years to serve on the charges. The Commonwealth dismissed the charges in the indictment against Pamela Pham without prejudice.
As part of the plea agreement, McGruder agreed to "pay any and all restitution." The plea agreement did not provide a specific amount of restitution and, since McGruder requested the trial court sentence him the same day as his plea, the Commonwealth requested a separate sentencing date in order for it to tender a restitution order. The trial court sentenced McGruder, but retained jurisdiction for the purpose of determining and imposing restitution.
One day later, on May 28, 2014, the Commonwealth tendered its motion to enter restitution. In the motion, the Commonwealth sought restitution in the amount of $5,379.28. On August 29, 2014, the trial court conducted a hearing on the motion. At the hearing, Neison testified that the above amount represented the estimate he had received from Sam Swope Honda to repair his vehicle. Neison testified that there was "pry damage" on the vehicle where someone had attempted to open the doors and the trunk with an instrument.
McGruder agreed that he should pay the estimate of $250 for the "detail and reconditioning" and "smoke and marijuana odor removal" due to his own criminal acts. He argued that he did not, however, owe restitution for damages that were caused during the theft of the vehicle because he had neither been indicted on those charges nor convicted of them. The trial court held a hearing and made findings of fact. It ordered McGruder to pay the full estimate and stated that the restitution would be made a condition of parole, should it be granted. McGruder then filed this appeal.
STANDARD OF REVIEW
In determining whether a trial court erred in findings on restitution, an appellate court must review under an abuse of discretion standard. Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012). 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).
With this standard in mind, we review the merits of the appeal.
ANALYSIS
McGruder argues that he was only liable for restitution based upon his criminal acts. Since he was never charged with theft of the vehicle, he contends that his restitution for damages resulting from the actual theft itself cannot be imposed.
Kentucky Revised Statutes (KRS) 532.350(1) defines restitution 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." In Morseman, supra, the Kentucky Supreme Court discussed the statutes that are pertinent to the imposition of restitution. The Supreme Court stated:
...KRS 533.030 discusses when a trial court is required to order restitution and provides, in pertinent part:Id. at 148.
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, or its value substantially decreased as a result of the crime, or where the victim suffered actual medical expenses, direct out-of-pocket losses, or loss of earning as a direct result of the crime... the court shall order the defendant to make restitution in addition to any other penalty provided for the commission of the offense."
Morseman also ruled that "a trial court is authorized to order restitution for damages not suffered as a direct result of the criminal act(s) for which the defendant has been convicted when, as part of a plea agreement, the defendant freely and voluntarily agrees to the restitution condition." Id. at 152. In Morseman, the Kentucky Supreme Court held that the agreement to the restitution was freely and voluntarily given. In the present case, however, whether McGruder agreed to restitution based on acts he did not commit is less clear.
The specific amount requested as restitution in this case was not set forth in the plea agreement. The plea agreement did, however, set forth that McGruder agreed to pay "any and all restitution." The repair estimate was provided by the Commonwealth to defense counsel as part of its discovery on April 25, 2013. This was prior to the guilty plea McGruder entered. He was, therefore, aware of the amount of damage the victim asserted had been done to his car. The trial court did not abuse its discretion in imposing restitution.
McGruder also argues that the trial court erred in failing to apply the statutory provisions of KRS 431.200. He asserts that a defendant has the right to a jury "to try the facts and ascertain the amount and the value of the property, or assess the damage, as the case may be." KRS 431.200. McGruder did not preserve this error and we do not find that it is palpable.
In Jones v. Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011), the Kentucky Supreme Court held that due process under KRS 532.032 required that a defendant receive:
(1) Adequate notice of the amount and type of restitution being sought;
(2) A hearing before a judge with assistance of counsel;
(3) The opportunity to present evidence; and
(4) The demonstration by the Commonwealth of the validity of the claim as well as the value by a preponderance of the evidence.In this case, as set forth above, McGruder agreed to pay any and all restitution.
Thus, we find the trial court did not err in ordering McGruder pay the full amount of restitution.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua M. Reho
Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky