KYSC - Brown - Restitution

AnthonyBrown v. Comm., Kentucky Supreme Court, To-be-published (2/15/2018): 

Brown was charged with murder and convicted of second-degree manslaughter.  At trial, the court 1) awarded $7,571.51 in restitution to arguably non-victim entities who had not been named in the indictment and failed to give notice of the amount claimed or opportunity for a hearing and jury determination, 2) allowed evidence of a probation violation in the penalty phase, and 3) held that Brown’s prior drug conviction could be used to support his manslaughter conviction. 

On appeal, the Kentucky Supreme Court vacated and remanded the restitution award for a new hearing after notice to Brown regarding the victims and amounts claimed. The Court stated Brown will have an opportunity on remand to argue that a funeral home and a medical center are not “named victims” eligible under the statute. 

On remand he will also have an opportunity to demand a jury trial, which he should do in order to raise and preserve the other unresolved question raised in this appeal, whether he is guaranteed a jury trial on restitution by Section 7 of the Kentucky Constitution and CR 38.01.  

Susan Balliet represented Anthony Brown on appeal.

KYCOA - Bentley - Insurance company is not a victim for restitution purposes

Jonathan Bentley v. Commonwealth, 

Kentucky Court of Appeals, to be published (7/29/16).  

Bentley entered a conditional guilty plea to receiving stolen property.  He was ordered to pay restitution of $1,000 to the victims of the theft and $11,000 to the victims’ insurance provider.  The insurance company had paid the victims $12,000 under a homeowner’s policy, with $1,000 amounting to the victims’ deductible under the policy.  The Court of Appeals reversed the portion of the final judgment ordering restitution to the insurance provider because the insurance company was not a victim in this case as defined by KRS 533.030(3).  

The Court distinguished Bentley’s case from Commonwealth v. Morseman because, while the Morseman Court found it was proper for that defendant to pay restitution to an insurance company, it was only because that insurance company was the victim of the crime for which Morseman was convicted, insurance fraud.  The Court affirmed the portion of the judgment ordering Bentley to pay restitution of $1,000 to the victims because the victims had paid that amount out-of-pocket to cover their deductible.  

Matt Michalovic represented Mr. Bentley in Letcher Circuit Court.  

Steven Buck represented Mr. Bentley on appeal.

KYCOA - Hunt - Restitution and Fees

Kendrick Hunt v. Commonwealth, COA, 4/29/16, To Be Published, 

 The COA held that Hunt is not required to pay $500 in restitution to the Pennyrile Narcotics Task Force, because that agency was not a victim of his drug-dealing. However he must pay court costs of $155 and jail fees of $2,668 within 8 months of his release, 

At sentencing Hunt was nineteen with no money and no job, facing eight years in prison and with no job prospects. The only money ever in his commissary account consisted of gifts from his parents, which he informed the court had been spent prior to sentencing. 

The COA held there was no error in assessing court costs because despite his claim he had no money in his commissary account, the trial court “did not find him to be a poor person” and did find that Hunt would be able to earn money …after his release from prison,” and the trial court said it would “work with” Hunt and grant extensions. As for the $2,668 in jail fees, the trial court determined that Hunt would be able to work while incarcerated and upon release to reimburse the jail fees.

Susan Balliet handled the appeal.

KYSC - Cave - Restitution as Jury Question

Cave v. Commonwealth, 2013-SC-000542-MR, 2015 WL 1544451 rendered 4/2/15, NOT TO BE PUBLISHED, affirming.

Mr. Cave waived any right he may have had under the Kentucky Constitution to a jury determination of restitution. But while this is an unpublished opinion, the Court suggests in this case that there may very well be a right to a jury for questions regarding restitution –in a case where the issue has been raised and preserved for appeal:

Cave is correct that Section 7 of the Kentucky Constitution and CR 38.01 guarantee the right to trial by jury in civil cases. However, Cave ignores CR 38.04, which states that the failure to demand a jury trial waives that right. Cave never demanded a jury trial on the issue of restitution; therefore, he waived any right he may have had to one. Because Cave did not seek a jury trial on the issue of restitution, we are not addressing whether he would have been entitled to a jury trial had he done so.

Cave v. Commonwealth, 2015 WL 1544451, at *10 (Ky. Apr. 2, 2015).

Practice tip:  If and when the Commonwealth demands restitution, defense counsel should cite Section 7 of the Ky. Constitution and demand a jury determination of whether restitution should be imposed at all, and if so, in what amount. This will at least preserve the jury question for appeal. Feel free to contact me for briefing on the issue.

Contributed by Susan Balliet

KYSC – R.S. v. Comm -- Juvenile Trial Practice Procedures and Juvenile Restitution

R.S. v. Commonwealth, 423 S.W.3d 178 (Ky. 2014) - R.S. was charged with complicity to second degree criminal mischief for allegedly participating in the vandalism of a car.  Though the evidence showed his involvement was minor, he was ordered to pay full restitution to the victim.

The case was appealed to the Kentucky Supreme Court upheld the trial court’s verdict.  However, in doing so the Court made several significant changes to juvenile law. 

First, the court eliminated the requirement of a motion for directed verdict in a juvenile adjudication, holding that at the close of the Commonwealth’s evidence, defense counsel should instead move for dismissal under CR 41.02(2).  The significance of the difference is that upon making such a motion the juvenile court is required to “‘weigh and evaluate the evidence,’” rather than “indulge every inference in the [Commonwealth’s] favor’” as required with a directed verdict.

Second, the court found that in juvenile cases where the court seeks to order restitution, the court must hold a restitution hearing, and make findings on the record as to why restitution is in the “best interests” of the child.  Restitution must be reasonable, balancing the interests of making the victim whole with the child’s ability to pay.  Factors to be considered include the child’s age, earning ability, employment status, the ability of parents to pay, and the existence of any legal remedies available to the victim other than restitution.

R.S. was represented at various stages of the appellate process by several former and current members of the Juvenile Post Disposition Branch, including Gail Robinson, Dawn Fesmier, and John Wampler. John Wampler argued the case before the Kentucky Supreme Court

Contributed by John Wampler