RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1117-DG
DOROTHEA BRADLEY APPELLANT
ON DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DARRYL S. LAVERY, JUDGE
ACTION NO. 18-XX-000023
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, TAYLOR, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: This case is before us on discretionary review from the
Jefferson Circuit Court and involves whether restitution can properly be imposed
upon an uninsured driver to compensate another motorist for the loss associated
with having to pay her own automobile insurance deductible. The basis for
restitution ordered by the district court was that the uninsured driver pled guilty to
a failure to maintain motor vehicle insurance, and was therefore at-fault for the
resultant monetary damages; thus, the restitution was linked to the deductible the
victim motorist lost because the other driver was uninsured. However, the district
court committed reversable error by failing to conduct a proper hearing and to
thereafter make any findings regarding the uninsured driver being at-fault for the
underlying collision and being financially able to pay the restitution ordered.
On January 9, 2017, in Jefferson County, Dorothea Bradley was
involved in a vehicle collision with Shanetta Thompson. The police report for this
collision stated that Bradley failed to yield the right of way while exiting a parking
lot onto the roadway and struck the passenger side of Thompson’s car.
At the scene, Bradley was cited and charged with violating Kentucky
Revised Statutes (KRS) 186.170 (no registration) and KRS 304.39-080(5) (failure
of an owner to maintain required insurance or security, first offense). There are no
factual issues regarding Bradley’s violation of these statutes. On March 7, 2017,
the Commonwealth informed Bradley that it would seek restitution on behalf of
Thompson in the amount of $1,000 which represented the insurance deductible
incurred by Thompson owing to damage to her vehicle resulting from the accident.
On April 10, 2017, Bradley filed a motion to preclude the imposition
of restitution as a part of any sentence to be imposed upon her for the charged
offenses. Bradley’s motion sought to exclude the payment of restitution on the
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basis that any monetary damage resulting from the accident was not the direct
result of her criminal activity of having no insurance as required for the payment of
restitution under KRS 533.030(3).
Bradley’s motion was denied by the Jefferson District Court which
held that the applicable statutes were clear and unambiguous and that a person
convicted of having no insurance could be assessed restitution for damages
occurring as a result of an automobile accident. The district court noted that the
police report indicated that Bradley was at-fault for the accident. The district court
stated that if Bradley pled guilty to a violation of KRS 304.39-080, it would set a
date for a restitution hearing allowing Bradley reasonable time to prepare, thirty
days’ notice from the Commonwealth as to proposed witnesses and documents to
be introduced, and opportunity at the restitution hearing to present her own
evidence and offer rebuttal. The district court specifically stated that the restitution
hearing would be conducted, “in a manner consistent with” both Jones v.
Commonwealth, 382 S.W.3d 22 (Ky. 2011) and Dillard v. Commonwealth, 475
S.W.3d 594 (Ky. 2015). The district court also stated in its order that, “[a]t the
restitution hearing, the defendant shall have a reasonable opportunity, with the
assistance of counsel, to present evidence or other information to rebut the claim of
restitution and the amount thereof.”
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Bradley subsequently pled guilty to a violation of KRS 304.39-080(5),
first offense. In exchange for her plea, the expired registration charge was
dismissed. Her plea offer was accepted by the district court and Bradley was
sentenced to ninety days, conditionally discharged for two years on the condition
of no new offenses. There was no monetary fine imposed. When Bradley entered
her guilty plea, the Commonwealth again indicated that it would seek restitution in
the amount of $1,000 as part of Bradley’s conditionally discharged sentence.
At the subsequent hearing on restitution, the Commonwealth
submitted a certified copy of Thompson’s insurance policy and materials
documenting her $1,000 deductible. That amount, and Thompson’s incurring that
amount, were not contested. At the Commonwealth’s request, the district court
also took judicial notice of the official traffic report which noted that Bradley
failed to yield the right of way to oncoming traffic when exiting a parking lot into
traffic. The district court did not take further evidence of Bradley’s fault for the
accident or resolve this issue of fault. Rather, the district court simply determined
that it was the criminal act of failing to have insurance, not the accident, which
caused Thompson to suffer an economic injury and concluded Bradley was
obligated to pay restitution. For purposes of appeal, the district court did allow
Bradley to testify by proffer as to the issue of fault, and she testified that
Thompson was speeding when the accident occurred and had run a red light.
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The district court, in its written order, again concluded that Bradley
was obligated to pay restitution without making a factual finding that Bradley was
at fault in the accident and ordered her to pay Thompson the total amount of
$1,000 at the rate of $75.00 per month. Bradley appealed to the circuit court. The
circuit court ruled that the district court acted within its discretion when it imposed
restitution, finding that had Bradley carried liability insurance, Thompson would
not have incurred direct, out-of-pocket losses. It further ruled that there was no
denial of due process.
Bradley sought and was granted discretionary review. Subsequently,
another panel of this Court published the opinion in Dale v. Commonwealth, 604
S.W.3d 281 (Ky.App. 2019). Recognizing the importance of Dale to her appeal,
Bradley sought and was granted permission to cite the Dale opinion as additional
authority in this matter and the import of Dale will be addressed herein.
In her appeal, Bradley argues that the district court abused its
discretion in ordering restitution because: (1) her only conviction under KRS
304.39-080(5) was not a crime that resulted in property damage to Thompson’s
vehicle; (2) a criminal restitution hearing is an inappropriate forum to resolve civil
issues of causation, damages, and apportionment; (3) requiring restitution for an
offense under KRS 304.39-080(5) creates negligence per se in violation of the
right to a jury trial, usurps due process, and is contrary to existing precedent; (4)
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she was denied due process when the district court refused to allow her to contest
that she was at fault for the accident; and (5) the district court did not make a
factual finding regarding Bradley’s ability to pay.
Whether the district court properly ordered restitution for damages
incurred by Thompson as a direct result of a criminal act for which Bradley has
been convicted is properly reviewed under an abuse of discretion standard.
Commonwealth v. Morseman, 379 S.W.3d 144, 147 (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.” Goodyear Tire &
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). However, when asked
to “construe statutory provisions, we do so de novo.” Morseman, 379 S.W.3d at
148.
In analyzing Bradley’s first and third assignments of error, we agree
with Bradley’s contention that her conviction under KRS 304.39-080(5) was not a
crime, the commission of which directly resulted in damage to Thompson’s
vehicle. However, that does not end our inquiry. As explained herein, we
conclude that a motorist’s failure to have or maintain insurance coverage, in clear
violation of the laws of the Commonwealth and the explicit intention of our
Legislature, may directly cause financial “damage” to insured motorists (in the
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form of lost/paid insurance deductibles), when such uninsured motorists are found
to be at fault in, or otherwise be a cause of, the underlying motor vehicle accident.
There are two separate sources of statutory provisions relevant to this
determination. The first are to be found within Commonwealth’s Motor Vehicle
Reparations Act (MVRA).
KRS 304.39-010 states:
The toll of about 20,000,000 motor vehicle accidents
nationally and comparable experience in Kentucky upon
the interests of victims, the public, policyholders and
others require that improvements in the reparations
provided for herein be adopted to effect the following
purposes:
(1) To require owners, registrants and operators of
motor vehicles in the Commonwealth to
procure insurance covering basic reparation
benefits and legal liability arising out of
ownership, operation or use of such motor
vehicles[.]
Next, KRS 304.39-110(1) specifies the mandatory “basic” limits of
insurance coverage which every vehicle owner and operator must acquire prior to
operating a motor vehicle on our roads. Such requirements include a minimum of
$25,000 of coverage for damage to property.
KRS 304.39-080(5), to which Bradley voluntarily pled guilty,
provides that every owner or operator of a motor vehicle shall have and maintain
the insurance or security required by law “for payment of tort liabilities” and that a
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violation of such requirements can result in not only the revocation of a motor
vehicle’s registration, but also subject the uninsured motorist to “the penalties
in KRS 304.99-060.”
The MVRA’s language underscores our Legislature’s clear and
specific intent that all motor vehicles registered in our Commonwealth must be
insured not only for bodily injuries, but also for property damages.
The mandatory criminal penalties for Bradley’s violation are found in
KRS 304.99-060. Subsection (1)(a) states that the “owner” of an uninsured vehicle
shall, among other penalties, be fined between $500 and $1,000, or receive up to a
ninety-day jail sentence, or be both fined and jailed. KRS 304.99-060(1)(a)1.
Subsection (2)(a) similarly provides that a person who “operates” an uninsured
motor vehicle shall be fined between $500 and $1000, or receive up to a ninety-day
jail sentence, or be both fined and jailed. KRS 304.99-060(2)(a). Subsection (3)
provides that if an “operator” is also the “owner” of the uninsured vehicle, then
that person shall be subject to penalties under both sections. KRS 304.99-060(3).
In accordance with these statutes, Bradley could have been fined up to
$1,000 by the district court as the owner of an uninsured vehicle and fined up to an
additional $1,000 as the operator of the vehicle at the time of the accident. Other
than alleging an inability to pay, Bradley would be able to offer no objection to
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those statutory financial penalties if they had been imposed. However, no
monetary fine was levied. Instead, Bradley objects to paying $1,000 to Thompson.
Absent from the above statutes, and the MVRA in general, are any
provisions for the imposition of restitution. Restitution for criminal conduct is
addressed within KRS Chapters 532 and 533 of the Kentucky Penal Code.
Restitution is defined 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[.]” KRS
532.350(1)(a) (emphasis added). It is mandatory in Kentucky for a trial court to
consider the economic impact of crimes on the victims to order the defendant to
make restitution, in addition to any other penalty provided, for injuries to victims
including their “monetary damage[s]” or “direct out-of-pocket losses” which
resulted from the crime committed. KRS 533.030(3). Notably, that definition
includes only damages caused by a criminal act, not a negligent act.
KRS 532.032(1) addresses the general circumstances when restitution
in criminal cases must be paid. That statute provides:
Restitution to a named victim, if there is a named victim,
shall be ordered in a manner consistent, insofar as
possible, with the provisions of this section and KRS
439.563, 532.033, 533.020, and 533.030 in addition to
any other part of the penalty for any offense under this
chapter. The provisions of this section shall not be
subject to suspension or nonimposition.
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Subsection (3) of that same statute provides that “[i]f probation, shock probation,
conditional discharge, or other alternative sentence is granted, restitution shall be a
condition of the sentence.”
While KRS 533.030(3), 532.032(1) and (3) all use the mandatory
word “shall,” the imposition of restitution by our courts is limited to the extent that
to do so is consistent with the statutes referred to therein, including KRS
533.030(3) which specifically limits the restitution award to those damages
suffered “as a result of the crime.” It is this extent of the nexus or connection,
proximate or otherwise, between (a) the crime(s) committed, and (b) the
injuries/damages for which restitution is ordered, that concerns this inquiry.
In construing the MVRA and penal code together, we must first
recognize that the legislative policy of the MVRA is “to keep uninsured motorists
off Kentucky’s roads.” Nantz v. Lexington Lincoln Mercury Subaru, 947 S.W.2d
36, 38 (Ky. 1997). Our penal code states, “[a]ll provisions of this code shall be
liberally construed according to the fair import of their terms, to promote justice,
and to effect the objects of the law.” KRS 500.030. The courts of the
Commonwealth are to “liberally construe[]” the restitution statutes found within
our penal code “in favor of their remedial purpose.” Morseman, 379 S.W.3d at
148. In Morseman, our Supreme Court acknowledged that Kentucky’s restitution
statutes require “a causal connection between the criminal act and the ordered
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restitution.” Id. at 151. While there is an exception in those cases where the
defendant agrees to pay restitution pursuant to a plea agreement, that exception is
not applicable here because Bradley did not voluntarily agree to pay restitution as
part of her conditional guilty plea. Id. at 152. Therefore, the issue here is whether
there was a causal connection between the crime and the damage.
In Rentschler v. Lewis, 33 S.W.3d 518 (Ky. 2000), our Supreme Court
held that there was no causal connection between a car accident and the criminal
offense of operating a motor vehicle without a valid operator’s license. As the
Court explained:
The fact of consequence in this case is whether the
manner in which Lewis operated his vehicle was a
substantial factor in causing the accident. His status as a
licensed or unlicensed driver would not tend to prove or
disprove that fact. Therefore, the trial judge correctly
concluded that such evidence was irrelevant, thus
inadmissible.
Id. at 519. The Court did not specifically address in Rentschler whether restitution
was available to a person whose vehicle was damaged by a defendant operating a
vehicle in violation of KRS 304.39-080(5). However, its reasoning was later found
applicable in Dale, where that precise issue was addressed.
In Dale, 604 S.W.3d 281, the defendant entered a conditional guilty
plea to KRS 304.39-080 for failure to maintain insurance after he was involved in a
fatal motor vehicle accident. Prior to the court hearing evidence regarding
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restitution, the defendant filed for bankruptcy which stayed a related civil action
filed by the victim’s estate in circuit court. Noting that ordered restitution is not
dischargeable, the district court ordered Dale to pay the statutory maximum of
$100,000 to the deceased motorist’s estate. The categories of damages for which
restitution was ordered in Dale were (a) the value of a motorcycle, and (b) lost
earnings of the deceased. Dale, 604 S.W.3d at 284. That award was affirmed by
the circuit court and discretionary review granted by the Court of Appeals.
It is the character of the damages sustained by and awarded to the
victim in Dale which distinguishes it, as a matter of fact and law, from the one
item of damage (insurance deductible only) alleged herein.
Dale argued that the injuries for which restitution was ordered could
not be the direct result of his failure to maintain insurance. Id. at 287. The Court
of Appeals noted that Kentucky courts had not addressed the issue of “what types
of losses arise ‘as a direct result of the crime,’” as that phrase is used in KRS
533.030(3). Id. at 288. Looking to federal law and Rentschler, the Court
concluded that “Dale’s failure to maintain insurance did not directly cause the
financial loss incurred by Whitaker” and “does not prove whether his actions
caused the accident.” Id. Importantly, this Court emphasized that the
Commonwealth was required to prove more than that Dale did not maintain
insurance:
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[T]he Commonwealth failed to prove Dale’s failure to
maintain insurance directly caused Whitaker’s death or
damage to his motorcycle. Because Dale was not
charged with any crime in connection with the nature of
restitution sought, and because causation was not
addressed, the district court improperly imposed
restitution on Dale.
Id. at 288-89.
Such nexus between a statutory violation and the (allegedly) resultant
injuries has been explored before in our Commonwealth within other contexts.
Utilizing the standard of “substantial factor,” the Supreme Court has stated that
while it is unquestioned that violations of statutes constitute negligence per se,
such statement is coextensive with the requirement that the violation must be “a
substantial factor in causing the result.” Britton v. Wooten, 817 S.W.2d 443, 447
(Ky. 1991).
In the present matter, as in Dale, the only crime to which Bradley
entered a plea of guilty was the violation of KRS 304.39-080(5). Unlike in Dale,
here our driver was only ordered to pay restitution for the monetary value of the
deductible lost/suffered by the victim. It is agreed that structural damage to an
automobile, or physical injuries to a motorist, might not be said to be actually
caused by, or proximately caused by, the failure to have automobile insurance—
even though an uninsured automobile should not be operated on our roadways.
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However, in practice and reality, the loss of a deductible, by one
whose vehicle is struck by an uninsured motorist, is indeed a “direct” injury that is
readily known to any motorists in the Commonwealth who have had the all-too-
common experience of being hit by an uninsured driver. Such conclusion is in
conformity with our penal code at KRS 501.060(1) regarding causal relationships,
where it is stated that “[c]onduct is the cause of a result when it is an antecedent
without which the result in question would not have occurred.” Bradley’s conduct
in failing to have insurance was most definitely an antecedent, without which
Thompson would not have incurred the loss of her deductible. The financial injury
to motorists who follow the law, caused by those who do not, is both readily
foreseeable and a natural consequence of uninsured motorists’ derogation of the
MVRA.
If Bradley was at fault in the accident, but for Bradley’s failure to
have liability insurance, Thompson would have recovered her deductible in
conformity with our insurance statutes, regulations, and the general insurance
practices of our Commonwealth. As stated another way, by virtue of her criminal
failure to have liability insurance, if Bradley was at fault, Bradley directly caused
Thompson to lose her deductible and/or denied Thompson the ability to recover
her deductible.
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Having concluded that it was proper for the district court to recognize
the loss of a deductible as a compensable injury in restitution proceedings, we next
turn our inquiry to the issue of fault for the underlying accident, the conduct of the
restitution hearing, the sufficiency of the evidence presented, and district court’s
findings. This review encompasses Bradley’s second and fourth arguments.
In Jones, the Supreme Court described and set forth the requisites of
due process within restitution determinations. Two of the listed requirements
relevant to the present determination are:
• a reasonable opportunity for the defendant with
assistance of counsel to present evidence or other
information to rebut the claim of restitution and the
amount thereof; and
• 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, 382 S.W.3d at 32.
From the record presented, it is obvious that restitution was both
sought by the Commonwealth, and considered by the district court, based upon the
accident report (quoted by the district court in its opinion) which reported that
Bradley failed to yield right of way in entering the roadway from a parking lot.
That report was the only evidence of Bradley’s fault submitted into evidence.
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Police reports are generally considered hearsay. Pursuant to the Kentucky Rules of
Evidence (“KRE”) 803(8), a police report is not exempt from hearsay, unless it is
offered for an admissible purpose. Allen v. Gueltzow, 535 S.W.3d 333, 335
(Ky.App. 2017). KRE 803(8)(A) specifically excludes police reports from the
public records exception to the hearsay rule. Therefore, in all other contexts, a
police report could not be lawfully considered as evidence of fault for the accident.
However, in the context of restitution proceedings such reports may be considered
by the court. KRE 1101(d)(5) states that the Kentucky Rules of Evidence are not
applicable to “sentencing by a judge[.]”
Restitution falls within the court’s sentencing authority and, therefore,
does not require the strict application of the Kentucky Rules of Evidence. As
stated in Jones, “implicit in our statutory scheme requiring restitution, is an
adversary hearing, ordinarily conducted in conjunction with the final sentencing
hearing, at which the trial court will have broad discretion to make findings based
upon reliable information, but not bound by the rules of evidence or traditional
rules of pleading.” Jones, 382 S.W.3d at 31.
Certainly, the district court could have viewed the facts described in
the police report, and the conclusion drawn therein, as that of a disinterested third
party created in the performance of their duties as a responding officer. In many, if
not most, restitution circumstances, a court’s reliance on or reference to a police
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report within a determination that an uninsured driver was at fault in an accident
could be considered to be supported by substantial evidence. Substantial evidence
is that evidence, taken alone or in light of other proof, that a reasonable mind
would find sufficient to support a conclusion. Goncalves v. Commonwealth, 404
S.W.3d 180, 189 (Ky. 2013). Admitting the report into evidence, and reliance
upon the report by the district court, would fall in line with the Supreme Court’s
determination in Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002), where
the Court recognized the clear legislative intent that restitution be established
efficiently and fairly as part of the sentencing process in a summary proceeding
that “serves judicial economy and the traditional notions of fair play and
substantial justice.” The Court further observed that “[t]he trial court [in a criminal
case] has the statutory authority to establish restitution and is in the best position to
make the appropriate and well-informed decision in a fair and impartial
manner.” Id.
However, the district court did not properly allow for Bradley to
contest a finding of her negligence. Efficiency and speed aside, while KRS
Chapter 532 requires judges to impose restitution when appropriate, it does not
compel judges to do so, “without conducting a proper hearing with whatever
degree of formality is necessary in the particular circumstances to assure
compliance with constitutional due process.” Jones, 382 S.W.3d at 31.
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Furthermore, “[i]n the more complex claims, with factual issues that do not lend
themselves to being reliably resolved in a summary proceeding, 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.
Allowing Bradley to only offer rebuttal on the issue of fault by proffer
did not allow her “to present evidence or other information to rebut the claim of
restitution[,]” which in turn violated her rights of due process within the
proceedings. Id. at 32.
As to the last assignment of error, that the district court did not make a
necessary factual finding regarding her ability to pay ordered restitution, Bradley is
also correct. Bradley’s counsel preserved this issue at the restitution hearing. The
district court did not take evidence of Bradley’s alleged indigence and, again, made
no related findings of fact or conclusions of law. Since this matter was briefed,
this Court rendered the opinion in Compise v. Commonwealth, 597 S.W.3d 175
(Ky.App. 2020). In that decision we determined that the circuit court hearing a
motion for revocation should have made findings regarding defendant’s financial
situation and ability to pay restitution, stating:
While the issue of restitution is not directly before
us, the manner in which restitution was ordered in this
case gives us pause. There were several indications that
Compise was impoverished, such as that she was
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appointed the public defender and was repeatedly
released on her own recognizance so that she could work
because she could not afford to pay a bond.
...
Although the circuit court must have been aware that
Compise was impoverished given that it chose to omit
ordering her to pay a monthly supervision fee to
Probation and Parole in the order granting pretrial
diversion, the court apparently never considered whether
Compise had the ability to pay restitution when granting
pretrial diversion or issuing its ruling on the amount of
restitution due. Findings should have been made
regarding Compise’s financial situation, her ability to pay
restitution, and what, if any, monthly payments she could
afford. See Wallace v. Commonwealth, No. 2013-CA-
001031-MR, 2015 WL 603395, at *2-3 (Ky.App. Feb.
13, 2015) (unpublished) (explaining that findings must be
made as to whether a defendant is a “poor person” and
imposition of restitution is improper if the defendant
would not be required to pay court costs or public
defender fees); Neal v. Commonwealth, No. 2005-CA-
001255-MR, 2007 WL 867088, at *2 (Ky.App. Mar. 23,
2007) (unpublished) (discussing that counsel is
ineffective if counsel failed to inquire as to defendant’s
ability to meet restitution payments and defendant in fact
lacked such ability).
Id. at 181.
It was incumbent upon the district court to enter findings regarding
defendant’s financial situation and ability to pay prior to imposing restitution. The
court within those findings might also advise whether it had determined to order
restitution against Bradley in lieu of imposing a monetary fine for her admitted
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criminal conduct. This would appear to have been the court’s design, but such is
not reflected in the record.
Accordingly, we reverse and remand the Jefferson Circuit Court’s
opinion and order affirming the Jefferson District Court’s judgment as to
restitution and instruct the circuit court to vacate and remand the judgment for the
district court to conduct a full restitution hearing in conformance with Jones, 382
S.W.3d at 31-32, and to make factual findings regarding both Bradley’s fault for
the underlying motor vehicle accident and her ability to pay restitution.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Cicely J. Lambert Andy Beshear
Christopher B. Thurman Attorney General of Kentucky
Louisville, Kentucky (former)
David A. Sexton
Special Assistant Attorney General
Louisville, Kentucky
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