RENDERED: AUGUST 6, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1052-MR
JAMES RIDENOUR APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
v. HONORABLE DAN BALLOU, JUDGE
ACTION NO. 17-CR-00088
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
ACREE, JUDGE: James Ridenour appeals his final judgment and sentence on
plea of guilty, claiming he detrimentally relied on an ambiguous plea agreement
that resulted in the unjust imposition of a restitution obligation greater than
$10,000. He asks this Court to order the trial court to modify the restitution
awarded to no more than that amount. Finding no error, we affirm.
BACKGROUND
In 2017, Earl Brooks died and soon after car parts began to go missing
from the salvage yard he owned. Investigation of the crime led prosecutors to
Ridenour. The grand jury indicted him on the charge of theft by unlawful taking
over $10,000, a Class C felony. KRS1 514.030(2)(e).2 The charge was based on
evidence that the value of the stolen goods was $20,129.45 – evidence in the
discovery file the Commonwealth gave Ridenour before the plea agreement.
In 2019, while this charge remained pending, Ridenour engaged in
unrelated conduct leading to charges of burglary, first degree, theft by unlawful
taking under $500, and being a convicted felon in possession of a firearm.3 These
charges were referenced as part of the plea agreement Ridenour accepted in the
instant case on February 18, 2020.4 Ridenour agreed to plead guilty in the instant
1
Kentucky Revised Statutes.
2
The Legislature amended the statute in 2021; this crime is now defined by KRS 514.030(g).
See 2021 Ky. Laws ch. 66, § 8 (eff. Jun. 29, 2021).
3
As discussed infra, this related case, Commonwealth v. Ridenour, No. 19-CR-00062 (McCreary
County), is referenced in Ridenour’s plea agreement in the instant case. We take judicial notice
of these charges pursuant to Kentucky Rules of Evidence (KRE) 201(b)(2). The charge of
burglary, first degree, was amended before Ridenour’s plea in that case to burglary, second
degree.
4
Ridenour accepted and signed the plea agreement on February 18, 2020. The order on a plea of
guilty was entered on February 24, 2020.
-2-
case to the lesser offense of theft by unlawful taking less than $10,000, a Class D
felony, KRS 514.030(2)(d),5 according to these specific terms:
Five (5) years to serve. Restitution to be set at final
sentencing. No contact w/ complaining witness.
Concurrent to 19-CR-62.
(Record (R.) at 77). The Commonwealth recommended not only five years to
serve on the lesser charge, but also that the term run concurrently with the term of
imprisonment imposed in Commonwealth v. Ridenour, No. 19-CR-00062.6 The
Commonwealth wanted to include Ridenour’s agreement to pay the restitution
amount it determined of $20,129.45, but Ridenour said, “I do not believe there is a
factual basis to support this.” He agreed that restitution was to be determined at a
subsequent hearing at which he could present his own proof of the value of the
stolen goods.
The restitution hearing was conducted over two days. During the first
day, the Commonwealth presented testimony from James Lyons. Lyons helped
Brooks run the salvage yard for thirty years. He created an inventory of all
missing parts and calculated the replacement cost. Based on a 175-page exhibit
containing this information, Lyons testified that the fair market value of the stolen
5
The statute’s 2021 amendment resulted in converting this crime into two separate crimes – one
a felony and one a misdemeanor. See current statute KRS 514.030(2)(d) and (2)(e).
6
The plea agreement in Commonwealth v. Ridenour, No. 19-CR-00062, like the agreement in
the instant case, was signed on February 18, 2020. It includes a reciprocal condition that
“Sentence shall run concurrent to Indictment # 17-CR-00088, for a total effective sentence of
Five (5) years to serve.”
-3-
auto parts was $20,129.45. On the second day, defense counsel called Miranda
Perry, an alternative sentencing worker, who testified the replacement parts’ value
was $6,059.10. The court found the Commonwealth’s evidence more persuasive
and ordered restitution in the amount of $20,129.45.7
This appeal followed.
STANDARD OF REVIEW
Ridenour’s demand is that this Court “vacate the order setting
restitution and remand this case with instructions to order an amount of restitution
consistent with the plea agreement.” (Appellant’s Brief, p. 8). We review a 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.
1999). 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 n.11 (Ky. 2004) (citations omitted). We also keep in mind
that the trial court is always in the best position to judge the evidence of record and
the credibility of the witnesses before it.
7
The court set a payment schedule to begin 90 days after Ridenour’s release when he was to pay
$100 a month for three months, $150 a month for the next three months, $200 a month for the
next three months, and $250 a month until the amount was paid in full.
-4-
However, Ridenour asserts the proper standard of review is de novo
because it requires contract interpretation and a determination whether there is an
ambiguous term requiring the contract to be set aside. (Appellant’s Brief, p. 3).
We address this conflict in the analysis.
ANALYSIS
Ridenour says, “[I]t was implicit in the [plea] agreement that [his]
restitution would be more than $500, but less than $10,000 since his charge was
amended as part of his agreement.” (Appellant’s Brief, p. 7). He argues, therefore,
that the trial court’s order requiring him to pay $20,129.45 in restitution for the
crime of theft by unlawful taking under $10,000 violated due process.
Consequently, the review necessary to fully analyze Ridenour’s
appeal is to determine: (1) whether the plea agreement is enforceable as written;
and (2) whether the restitution hearing satisfied due process. Our analysis borrows
liberally from the case upon which Ridenour relies heavily, Commonwealth v.
Morseman, 379 S.W.3d 144 (Ky. 2012), and the authorities that case cites.
The plea agreement is enforceable.
Plea agreements are bargained-for exchanges and are governed by
basic contract law. Covington v. Commonwealth, 295 S.W.3d 814, 816 (Ky.
2009). The requirements associated with contracts are “offer and acceptance, full
and complete terms, and consideration.” Cantrell Supply, Inc. v. Liberty Mut. Ins.
-5-
Co., 94 S.W.3d 381, 384 (Ky. App. 2002) (citations omitted). Here, the plea
agreement contains all the requirements of a valid and enforceable contract:
(1) the Commonwealth’s offer to amend the charge
against Ridenour under KRS 514.030(1)(a) from a
Class C felony under subsection (2)(e) with
potential imprisonment up to ten (10) years, to a
Class D felony under subsection (2)(d) and to
recommend a five-year sentence to run concurrently
with his sentence in No. 19-CR-00062, with
“[r]estitution to be set at final sentencing” to allow
Ridenour to present evidence contradicting the
Commonwealth’s evidence of the value of the
stolen goods;
(2) Ridenour’s acceptance of the offer indicated by his
signatures on the Commonwealth’s offer on a plea
of guilty and the accompanying court order, as well
as an oral guilty plea;
(3) full and complete terms incorporated into the
Commonwealth’s offer on a plea of guilty and the
accompanying court order; and
(4) consideration in the form of mutual promises–the
Commonwealth’s agreement to decline pursuing
the Class C felony, and to run the recommended
five-year sentence concurrently with the sentence to
be agreed upon in No. 19-CR-00062.
See RAM Eng’g & Constr., Inc. v. Univ. of Louisville, 127 S.W.3d 579, 586 (Ky.
2003) (“‘[T]he courts in general require that before mutual promises will be
enforced, each as the consideration of the other, each party must promise to do
something which will yield a benefit or advantage to the other, or which will result
-6-
in a detriment or disadvantage to himself in exchange for the other promise.’”)
(quoting 7 WILLISTON ON CONTRACTS § 7:6, at 77-79 (4th ed. 1992)).
Accordingly, “[e]ach party should receive the benefit of his
bargain[,]” United States v. Wesley, 13 Fed. Appx. 257, 259 (6th Cir. 2001), and
“[the contract’s] terms must necessarily be interpreted in light of the parties’
reasonable expectations and understanding of what the agreement means[.]” 22
C.J.S. Criminal Procedure and Rights of Accused § 203 (2021) (citations omitted).
Thus, the question becomes what the parties’ reasonable expectations were, and
what they understood the agreement to mean.
Ridenour believes his expectation was reasonable that restitution was
capped at $10,000. We disagree.
Complete, not partial, restitution to the victim of Ridenour’s crime is
required by statute because Ridenour pleaded guilty to a Class D felony offense.
KRS 532.356(1)(b); see also KRS 533.030(3) (“Restitution shall be ordered in the
full amount of the damages . . . .”); KRS 439.563(6) (requiring “[p]ayment of
restitution in full . . . .”); and KRS 532.032(1) (“The provisions of this section
[requiring restitution] shall not be subject to suspension or nonimposition.”). It is
not reasonable to expect the Commonwealth to make an offer contrary to law that
requires full restitution.
-7-
Furthermore, “the Commonwealth will generally consult with and
secure the approval of the victim for any plea bargain it may desire to offer.”
Morseman, 379 S.W.3d at 150. Ridenour points to nothing in the record
suggesting the victim was willing to accept less. Absent evidence of such
willingness, it is not reasonable to expect it.
Did Ridenour receive the benefit of this bargain? We conclude the
answer is, without question, yes. The net effect of his plea agreement is that he
will serve no additional time in prison for violating KRS 514.030(1)(a) when he
stole auto parts from Earl Brooks’ salvage yard. It will be the same five years he
agreed to serve for his crimes addressed in Commonwealth v. Ridenour, No. 19-
CR-00062. By refusing to agree to the restitution the Commonwealth was
prepared to prove, he effectively afforded himself the opportunity to present his
own evidence of the stolen property values – and he did.
That leads the Court to the next question: was the restitution hearing
conducted in accordance with due process? We conclude it was.
Restitution was determined in accordance with due process.
Ridenour makes no claim of due process violations like those in Jones
v. Commonwealth where the defendant “was given no prior notice of the restitution
claim or the list of items, and was allowed no opportunity during the sentencing
hearing to contest the claimed losses or to otherwise ascertain or challenge the
-8-
validity of the amount claimed.” 382 S.W.3d 22, 29 (Ky. 2011). Ridenour knew
he was indicted originally for theft of property exceeding a value of $10,000 and
that the Commonwealth’s evidence placed that value at more than $20,000.
In determining restitution, “a lower standard of due process applies . .
. [and] to satisfy this standard, the defendant must have some meaningful
opportunity to be heard and the record must establish a factual predicate for the
restitution order.” Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010). In
this case, the trial court satisfied this standard of due process.
The restitution ordered does not conflict with Commonwealth v. Morseman.
Ridenour interprets Commonwealth v. Morseman, supra, as holding
that “a trial court may not order a criminal defendant to pay restitution to a victim
of a crime for which he was not convicted.” (Appellant’s Brief, p. 5 (citing
Morseman, 379 S.W.3d at 152)). But Ridenour interprets Morseman too narrowly.
The crime to which Ridenour pleaded guilty is defined at KRS
514.030(1)(a): “theft by unlawful taking or disposition when he unlawfully . . .
[took] or exercise[d] control over movable property of another with intent to
deprive him thereof[.]” His prison term for that crime was determined incidentally
by the Commonwealth’s agreement to amend the charges to a Class D, rather than
Class C, felony. Nothing in this record limited the extent of restitution for the
crime defined by KRS 514.030(1)(a) to any specific amount or any general amount
-9-
less than $10,000. Nothing in Morseman prohibits the trial court from ordering
restitution in an amount equal to what was taken. Otherwise, not only would the
victim not be made whole, Ridenour would be unjustly enriched.
When the Supreme Court of the United States addressed a similar
question,8 the focus was on “losses caused by the conduct underlying the offense of
conviction.” Hughey v. United States, 495 U.S. 411, 416, 110 S. Ct. 1979, 1982,
109 L. Ed. 2d 408 (1990) (emphasis added). Ridenour wants this Court to focus on
the particular “offense of conviction” and not his underlying conduct of stealing
the victim’s property. We agree with the Supreme Court of the United States that
“the loss caused by the conduct underlying the offense of conviction establishes the
outer limits of a restitution order.” Id. at 420, 110 S. Ct. at 1984 (emphasis added).
To be clear, Ridenour’s proposed evidentiary fact that the value of
goods was $10,000 or less was not established at trial by a judicial admission or
even by the Commonwealth’s failure to convince a jury it was more. The plea
agreement makes all the difference.
8
Hughey addresses the restitution provisions of the federal Victim and Witness Protection Act of
1982, 18 United States Code (U.S.C.) §§ 3579, et seq. in the context of due process. The
conviction there, as here, resulted from a guilty plea, followed by a restitution hearing.
However, the defendant in Hughey did not plead to a lesser charge under the applicable statute;
he pleaded guilty to one count of a six-count indictment for theft and credit card fraud. Hughey,
495 U.S. at 413, 110 S. Ct. at 1981. The applicable principle, as we read Hughey, is the Court’s
repeated focus on the criminal conduct underlying the conviction.
-10-
Both parties agreed to have the trial court determine restitution. That
agreement reflected both Ridenour’s disagreement with the Commonwealth’s
value, as well as the Commonwealth’s disagreement with Ridenour’s value.
Ridenour never negotiated a cap of $10,000. The Commonwealth’s agreement to
reduce the charge from a Class C to a Class D felony is not a judicial admission
that the Commonwealth could not prove the victim’s damages exceeded $10,000,
and Ridenour does not directly argue as much.9
Ridenour has given this Court no basis upon which to set aside the
plea agreement and none upon which to set aside the trial court’s order determining
restitution.
CONCLUSION
For the foregoing reasons, we affirm.
ALL CONCUR.
9
This Court said in Reece v. Dixie Warehouse and Cartage Company: the argument that some
statement or act is a judicial admission is a question of law reviewed de novo; judicial
admissions are not to be taken lightly and should be narrowly construed; to rise to the level of a
judicial admission the statement or act must be deliberate, unequivocal, and unexplained or
uncontradicted; and whether a statement or act is a judicial admission must be assessed in the
light of all the conditions and circumstances of the case. 188 S.W.3d 440, 448 (Ky. App. 2006)
(citations omitted).
-11-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
-12-