Opinion
NO. 2013-CA-000841-MR
08-22-2014
CURTIS T. PORTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Cicely Lambert Bruce P. Hackett Louisville, Kentucky BRIEF FOR APPELLEE: Thomas A. Van De Rostyne Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 11-CR-003512
OPINION
REMANDING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. MAZE, JUDGE: Appellant, Curtis Porter, appeals from an order of restitution following his Alford plea to the amended charges of Theft By Failure to Make Required Disposition of Property under $10,000, two counts of third-degree Terroristic Threatening, and one count of Menacing. The restitution order required Porter to pay his victim $15,590.17. Finding no error in the trial court's reliance upon certain evidence in the record, or in the trial court's calculation of the appropriate restitution amount, we conclude that the trial court did not abuse its discretion in ordering restitution. However, due to a clerical error affecting the total amount of restitution, we remand to the trial court for correction of that error.
Alford v. North Carolina, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Background
A Jefferson County grand jury indicted Porter on charges of Theft By Failure to Make Required Disposition of Property Over $10,000, first-degree Wanton Endangerment, Menacing, and two counts of third-degree Terroristic Threatening. These charges stemmed from the end of Porter's friendship with the prosecuting witness, Joseph Moore. During this friendship, Porter and Moore shared a mutual interest in firearms. Following a number of break-ins, Moore asked Porter, and Porter agreed, to store several of his firearms, a gun safe, and gun safe accessories at Porter's home. In the subsequent years, Porter and Moore lost contact with one another. Eventually, Porter sold all but one of the guns, as well as the gun safe and accessories, stored at his home. Porter later returned the remaining gun, an heirloom, to Moore. However, he failed to return the other firearms, leading to the charges against him.
Following several pretrial conferences, Porter entered into a plea agreement. In exchange for his Alford plea to the charges in the indictment, the Commonwealth agreed to amend the theft charge to Theft By Failure to Make Required Disposition of Property Under $10,000 and to dismiss one count of first- degree Wanton Endangerment. In addition to the charges and recommended sentences, the parties' agreement included the understanding that "[t]he issue of restitution is reserved until sentencing." Both Porter and his trial counsel signed the plea agreement.
The trial court held an evidentiary hearing on April 11, 2013, to determine an amount of restitution. At the hearing, Moore and Porter both testified to their respective versions of events including the initial exchange of the firearms. While Moore testified that Porter took and sold fifteen guns, the gun safe, and accessories, Porter testified that it was the gun safe, accessories, and only eight guns, seven of which he admitted to selling. Moore testified that he attempted to retrieve his guns from Porter twenty-three times over eight months. At least one of those instances resulted in Porter pointing a gun at Moore and threatening him. Both men testified that Porter returned the heirloom gun to Moore.
In addition to the number of guns Moore gave Porter, their testimonies also diverged regarding the value of the guns kept and sold by Porter, as well as the total value of the guns, gun safe, and accessories. In addition to his testimony that most, if not all, of the guns were collectible and difficult to find on the current market, Moore presented the court with an itemized list of fifteen guns which Porter did not return. This list was a September 2011 document from retailer "Guns From Us" which estimated the total value of the fifteen guns to be $11,240.17. Additionally, Moore stated that he did not obtain an estimate on the value of the gun safe, but that it originally cost $1,500. Another itemized list Moore provided the court stated that "Dealtime.com" valued the gun accessories at more than $2,200.00. To counter Moore's evidence, Porter presented the trial court with the "Gun Trader's Guide" which provided valuation of a number of the guns and an estimate from the Knob Creek Gun Range doing the same. These estimates ranged from $3,369.98 if all the firearms were used to $4,618.98 if all were new. Porter also refuted Moore's claim that all of the guns were collectible.
Following this testimony, before setting restitution and sentencing Porter, the trial court stated to Porter, "[I]t's your word against his ... [Moore]'s outlined and I think with some, it's in here, it's part of the record, what these things are worth by someone and I'm going with it. So the amount of restitution is $15,540 or 590, whatever that says, can't see it, but, .17, that's the amount that you are going to pay." The trial court sentenced Porter according to pretrial diversion, pursuant to the plea agreement, which entailed a two-year sentence diverted for a period of five years or until restitution was paid in full. The trial court signed the order, filling in the amount of restitution as $15,590.17. It is from this order that Porter now appeals.
Standard of Review
This appeal surrounds the trial court's order of restitution following the April 11, 2013 evidentiary hearing on that issue. We recognize, as past courts have, that at such a hearing, "the trial court will have broad discretion to make findings based upon reliable information...." Jones v. Commonwealth, 382 S.W.3d 22, 31 (Ky. 2011). "In the more complex claims ... the trial judge must exercise the broad discretion of that office to resolve the matter in a way that respects the constitutional rights of all the parties and that achieves substantial justice." Id.
We therefore review the trial court's ruling concerning restitution for an abuse of its discretion, which occurs when a court's judgment is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1995). More specifically, a court abuses the discretion afforded it when "(1) its decision rests on an error of law ... or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions." Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (internal citations and quotations omitted). We also keep in mind that the trial court was in the best position to judge the evidence of record and the credibility of the witnesses before it.
Analysis
Porter first alleges that both case law and Kentucky's statutory authority prevented the trial court from ordering restitution for a crime of which he was not convicted. He asserts that because his final plea was to theft of property worth less than $10,000, the trial court erred in requiring him to pay restitution above that amount. Porter also argues that the trial court abused its discretion because substantial evidence did not exist in the record to support its final restitution order. We address both arguments in turn.
I. Porter's Responsibility for Restitution in Excess of $10,000
Porter's first argument centers around his right to Due Process. He contends that the trial court's order requiring him to pay $15,590.17 in restitution for the crime of Theft by Failure to Make Required Disposition of Property Under $10,000 was a violation of his due process rights because it required him "to pay restitution for a crime for which he was not convicted." Porter contends that because there is no "causal connection" between the charge to which he pleaded guilty and the amount of restitution, we must reverse. We are not persuaded.
Porter principally relies upon Commonwealth v. Morseman, 379 S.W.3d 144 (Ky. 2012). Morseman involved a defendant who pleaded guilty to insurance fraud and agreed to pay a specific amount in restitution, more than $48,000, in exchange for the Commonwealth's agreement to dismiss a charge of arson. At a subsequent restitution hearing, the trial court permitted the agreed-upon amount of restitution under the plea agreement despite the fact that at least part of that amount constituted damages suffered as a result of the arson charge which was to be dismissed under the plea agreement.
Our Supreme Court held that a trial court generally may not order restitution for damages not suffered as a direct result of the criminal acts for which a defendant has been convicted. Morseman, 379 S.W.3d at 152. However, the Court established one key exception to this rule: "when, as part of a plea agreement, the defendant freely and voluntarily agrees to the restitution condition." Id. Under this exception, the Court in Morseman found that the trial court had not abused its discretion in permitting the plea agreement's restitution provision because the defendant had "freely and voluntarily agreed" to pay restitution. Id.
Morseman also discussed Kentucky Revised Statutes (KRS) 532.350(1)(a), which 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[.]" Under this definition, Porter suggests that Morseman requires us to strictly construe that definition to mean that the restitution paid must be for the specific criminal act for which he was convicted. In his own words, Porter asserts that Morseman and KRS 532.350(1)(a) require that the crime for which a person is convicted must "provide a causal nexus to the restitution order." At best, Porter misreads the Supreme Court's opinion in Morseman as supporting such an assertion.
The Morseman Court provided three examples of situations which, if KRS 532.350(a)(1) was strictly construed in the manner Porter urges, would require invalidation of a restitution order. These examples were:
(a) The Commonwealth charges a defendant with five misdemeanor counts of theft by deception for issuing bad checks. The defendant agrees to plead guilty on one theft count but to make restitution for all five checks.Morseman, supra, at 151. The Court then pointed out the "absurd" and impractical result of reading KRS 532.350 so strictly as to prohibit such agreements. In flatly refusing to strictly construe the statute's definition of restitution in the way the defendant in Morseman urged, and in the manner Porter now urges us to read it, the Court recognized that "[t]hese types of agreements occur every day, and are an efficient manner of disposing of charges while providing equitable relief to victims." Id. Therefore, contrary to Porter's assertion, the Supreme Court in Morseman did not find that a strict construction of the restitution statute is required. Rather, Morseman expressly endorsed a more liberal and pragmatic reading of KRS 532.350 capable of addressing the situation which confronted the parties in this case. We are wise to follow this reasoning.
(b) A grand jury indicts a general contractor with three felony counts of theft by failure to make required disposition for not paying a subcontractor from funds paid by the property owner. The general contractor
pleads guilty to a single count but agrees to reimburse all three victims.
(c) The Commonwealth charges a defendant with breaking and entering and fleeing or evading police. The Commonwealth agrees to dismiss the breaking and entering charge in exchange for (1) a guilty plea on the fleeing or evading charge, and (2) restitution for the victim's broken door or window.
In light of Morseman and other Kentucky law regarding the establishment of restitution, the restitution order in the present case is valid; and we see no abuse of discretion in the amount listed in that order. The Commonwealth offered, and Porter accepted, a plea agreement under which he pleaded guilty to a lesser crime and agreed to pay restitution to the victim in exchange for the Commonwealth's dismissal or amendment of the other charges. The latter fact, that Porter agreed to pay restitution, is of great consequence under Morseman and it brings this case within the exception to the general rule that restitution may only be ordered for injury suffered as a direct result of the criminal acts for which the defendant has been convicted.
The fact that Porter did not agree to a specific amount of restitution does not alter our analysis. Morseman does not require agreement to a specific amount. Rather, it suffices that, when Porter agreed to pay whatever restitution amount the trial court determined at sentencing, he was well aware of both of the value and the number of stolen firearms Moore and the Commonwealth would assert. Furthermore, as the Court said in Morseman, a deal such as this one "occur[s] every day," and we believe that the trial court's approval of it constituted nothing more than a discretionary balancing of interests, a mere "disposing of charges while providing equitable relief to victims." 379 S.W.3d at 151.
II. Evidence Supporting Trial Court's Order of Restitution
Porter next challenges the valuation of the property which the trial court adopted in its restitution order. He contends that substantial evidence did not exist in the record to support the $15,590.17 order. We disagree.
At an adversarial hearing on restitution, "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." Jones, supra, at 32. "Substantial evidence" is defined as "evidence of substance ... which induces "conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). With this standard in mind, we look to the evidence of record in this case.
A. Conflicting Testimony
Moore testified at length regarding the property he entrusted to Porter. He testified and provided documentation of the estimated value of the firearms, gun safe, and accessories. This estimate, in addition to Moore's testimony, is part of the record. Like Moore, Porter provided estimated values for the seven firearms he admitted to selling without Moore's permission. Porter makes much of the fact that there was conflicting testimony regarding the value of the firearms and, much to the Commonwealth's disdain, the number of firearms actually stolen. This emphasis is misplaced.
Contrary to Porter's assertions on appeal, that there was conflicting evidence regarding the number and value of the guns stolen does not mean that substantial evidence does not exist to support an award of restitution. This Court has held, "testimony of the owner of the stolen property is competent evidence as to the value. . . ." Meyer v. Commonwealth, 393 S.W.3d 46, 55 (quoting Commonwealth v. Reed, 57 S.W.3d 269, 270 (Ky. 2001). Additionally, a trial court, as the trier of fact, possesses broad discretion to resolve the conflicting testimony and to draw from one or both bodies of evidence in making its decision on restitution. See Potts v. Commonwealth, 172 S.W.3d 345, 349 (Ky. 2005); Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994).
From the restitution order, it is clear that the trial court accepted Moore's testimony that Porter stole fifteen, not seven, firearms, and that they were worth a total of $11,240.17. In addition, while we could not possibly be expected to deduce the trial court's decision-making processes, the court seemingly accepted Moore's estimate of the gun safe's value, $1,500, based upon its original cost. The remainder indicates that the trial court valued the gun accessories at $2,850. Porter cites this difference as evidence that the trial court unjustifiably included the value of the gun safe twice.
Porter bases this on one of the itemized lists Moore submitted. This list includes values of accessories as well as the gun safe. For the accessories, Moore totals their value at more than $2,200. For the gun safe, he writes that it was worth "$1,495 to $7,000." Next to this, the figure $2,800 is written and circled.
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Importantly, it was unclear from the testimony whether the $2,800 to which Moore testified included the accessories and the gun safe. Porter's counsel even noted this uncertainty during the hearing, confirming with Moore, "The estimate you gave me is not including the safe, or maybe it was including the safe, it's $2,800 for the accessories?" Moore responded in the affirmative and neither defense counsel, nor the Commonwealth, nor the trial court attempted to clarify the matter. Moore also stated that many, if not all, of the firearms, as well as the gun safe, had gained value since he obtained an estimate of their value eighteen months prior.
Taken together, this testimony and documentation constituted substantial evidence upon which the trial court was entitled to rely for its restitution order. That the trial court chose Moore's, and not Porter's, valuation of the stolen property does not render the evidence unsubstantial; nor does it constitute an abuse of discretion. On the contrary, the trial court correctly observed that it was Moore's word against Porter's; and the trial court was well within its discretion to choose one over the other. Though some figures may have been imprecisely attributed in the record, evidence of substance existed in the record to justify the trial court's restitution amount.
B. Total Amount of Restitution
Porter points out that no combination of numbers listed in the exhibits adds up to the ordered amount of restitution. For this reason, Porter contends that the restitution is invalid on its face. The Commonwealth asserts that the trial court's statement from the bench and the numbers listed in the exhibits demonstrate that the $50 difference was merely a clerical error which the trial court can correct. After reviewing the record, we agree with the Commonwealth.
Kentucky Rules of Criminal Procedure 10.10 permits a trial court to correct "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party." Such clerical errors have been held to include "mathematical error when calculating a judgment." Machniak v. Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011).
When it ordered restitution from the bench, the trial court stated, "So the amount of restitution is $15,540 or 590, whatever that says, can't see it, but, .17, that's the amount that you are going to pay." Moore's estimation of the value of the stolen firearms, $11,240.17, when added to $2,800 in accessories and the $1,500 gun safe, totals $15,540.17, not 15,590.17. From this, we deduce that the trial court clearly intended to order the amount it was reading, $15,540.17, but it incorrectly recorded the total as $15,590.17. As there was substantial evidence to support the underlying restitution order, the court's order of $15,590.17 was merely clerical error and should be corrected by the trial court upon remand.
Conclusion
For the foregoing reasons, we find that there was substantial evidence for the restitution order and, therefore, the trial court did not abuse its discretion in ordering Porter to pay restitution under the terms of his plea of guilty. However, the trial court's clerical error on the restitution order requires correction to reflect the intended amount of $15,540.17. Hence, while we find no substantive legal error in the trial court's order, we remand for correction of the amount of restitution.
ALL CONCUR. BRIEF FOR APPELLANT: Cicely Lambert
Bruce P. Hackett
Louisville, Kentucky
BRIEF FOR APPELLEE: Thomas A. Van De Rostyne
Louisville, Kentucky