Opinion
NO. 2017-CA-001361-MR
05-03-2019
WILLIAM RANDALL PHILLIPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven Jared Buck Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 16-CR-00247 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: William Randall Phillips appeals from a judgment of the Letcher Circuit Court convicting him of third-degree criminal mischief, imposing a $250 fine and requiring him to pay $1,500 in restitution. We conclude that the trial court was not authorized to impose the fine on Phillips due to his status as an indigent. We further conclude that the trial court abused its discretion by imposing restitution more than the maximum amount available for third-degree criminal mischief. Hence, we reverse and remand for additional findings and entry of a new judgment consistent with this opinion.
The relevant facts of this action are not in dispute. On July 27, 2016, Eric Addington swore out a criminal complaint charging Phillips with first-degree criminal mischief. Addington alleged that Phillips had damaged his rental house prior to being evicted. Thereafter, on October 6, 2016, a Letcher County grand jury returned an indictment charging Phillips with one count of first-degree criminal mischief. At his arraignment, the trial court appointed counsel for Phillips based upon his affidavit of indigency.
The matter proceeded to a jury trial in May 2017. The jury found Phillips guilty on the lesser-included charge of third-degree criminal mischief, a class B misdemeanor. The jury did not impose any jail time but recommended a fine of $250. In its sentencing order, dated July 13, 2017, the trial court imposed the $250 fine and also ordered Phillips to pay restitution in the amount of $1,500. This appeal followed.
Phillips first argues that the trial court erred by imposing the $250 fine despite his status as an indigent. He concedes that he failed to raise this alleged error but requests this Court review the issue pursuant to the palpable error standard of RCr 10.26. Although this issue is unpreserved, Phillips raises a "sentencing issue" which cannot be waived by failure to object. Roberts v. Commonwealth, 410 S.W.3d 606, 611 (Ky. 2013). Thus, we review this issue for clear error. Id.
Kentucky Rules of Criminal Procedure.
Subsection (4) of KRS 534.040 provides that "[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31." At the time of his trial and sentencing, Phillips was receiving the services of a public defender. Furthermore, the trial court granted Phillips the right to appeal in forma pauperis. Therefore, we may assume the trial court found him to be an indigent person. Roberts, 410 S.W.3d at 611. Consequently, the trial court's imposition of the $250 fine was clearly erroneous and must be set aside.
Kentucky Revised Statutes. --------
Phillips next argues the trial court erred by ordering him to pay restitution without holding an adversarial hearing. We agree with Phillips that due process generally requires an adversarial proceeding to determine the amount of restitution when not agreed upon or clearly established at trial. Jones v. Commonwealth, 382 S.W.3d 22, 31 (Ky. 2011). In this case, Phillips' counsel requested a restitution hearing. However, the Commonwealth suggested that the parties submit the issue of restitution to the court based upon the evidence presented at trial and written pleadings. Phillips' counsel did not object and later filed a pleading stating his position on restitution. Although that pleading did request an additional hearing on restitution, we must conclude that Phillips already had waived an adversarial hearing on this issue.
Phillips further argues that the amount of restitution ordered was not supported by the evidence presented at trial and was inconsistent with the verdict. KRS 533.030(3) authorizes a trial court to require a defendant to pay restitution to a victim who "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, . . . ." We review a trial court's findings with regard to restitution for an abuse of discretion. Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2013). 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).
In the current case, the trial court relied on Addington's trial testimony that he had spent over $1,500 to repair the damage that Phillips caused. However, the jury declined to convict Phillips of first-degree criminal mischief, which requires evidence of damage exceeding $1,000. KRS 512.020. Rather, the jury found Phillips guilty only of third-degree criminal mischief, which requires proof of damages less than $500. KRS 512.040. Phillips argues that the jury implicitly rejected Addington's testimony concerning damages, and consequently, the trial court's assessment of $1,500 in restitution was inconsistent with the jury's verdict.
The Commonwealth responds that restitution need only be supported by a preponderance of the evidence. Jones v. Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011). But except in cases of a plea agreement, a trial court may not order a criminal defendant to pay restitution to a victim of a crime for which he was not convicted. Morseman, 379 S.W.3d at 152. The jury in this case expressly rejected the charges of first and second degree criminal mischief, implicitly concluding that Phillips did not cause most of the damage claimed by Addington. Given this express finding, we must conclude that the trial court was not authorized to impose restitution in the amount of $500 or more. Therefore, this matter must be remanded for additional findings and a new restitution order of less than $500.
Accordingly, we reverse the judgment of the Letcher Circuit Court with the respect to the imposition of the fine and the amount of restitution. This matter is remanded for additional findings and entry of a new judgment without the imposition of the $250 misdemeanor fine and for a new restitution order of less than $500.
ALL CONCUR. BRIEF FOR APPELLANT: Steven Jared Buck
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky