RENDERED: APRIL 15, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1132-MR
DEVIN THOMPSON APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 20-CR-00225
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: This appeal arises out of the Hardin Circuit Court’s
order directing Devin Thompson to pay restitution jointly and severally with two
other defendants following his guilty plea. Thompson requests us to reverse the
trial court’s order because he claims that the trial court abused its discretion and
deprived him of due process when it ordered him to jointly and severally pay the
total amount of restitution. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, James Reed and Trista Crooks stole $47,000.00
from Reed’s stepmother. In January 2020, police arrested the pair for the theft.
After her arrest, Crooks told police that they had given part of the money to
Thompson to hold for them.
Police contacted Thompson with this information, and he returned
$19,300.00. Several weeks later, officers learned that Thompson had not turned
over all the money he had received from Reed and Crooks. They contacted
Thompson again, and he admitted that he had kept some of the money and spent
part of it on a car.
Thompson returned a further $641.00 and turned over the car he had
purchased with the stolen money. Because Thompson had not returned all the
money at the first opportunity, the Commonwealth charged him with one count of
receiving stolen property over $10,000.00. Thompson pleaded guilty to an
amended charge of receiving stolen property under $10,000.00 on June 4, 2020.
The Commonwealth’s offer form stated that it recommended a
sentence for Thompson, Reed, and Crooks of five years, probated for five years.
The offer form also stated that Thompson agreed to pay restitution in an amount to
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be determined, that proceeds from the confiscated vehicle would be applied toward
the restitution amount owed, and that Thompson agreed restitution would be paid
to the victim jointly and severally. Thompson’s signature appeared at the bottom
of the page. On July 15, 2020, the trial judge accepted the Commonwealth’s
recommendation and sentenced Thompson to five years, probated for five years.
The trial court held a restitution hearing on August 18, 2020. At that
hearing, defense counsel argued that Thompson was not involved in the theft of the
money and should be liable only for the amounts that Reed and Crooks gave
Thompson to hold and not the entire amount. The prosecutor claimed that it was
part of the plea agreement that the Commonwealth requested restitution to be joint
and several for all three defendants for the entire amount stolen – or $47,000.00 –
less the amounts already returned. At the end of the hearing, defense counsel
asked for permission to file a brief on the issue of restitution.
The defense filed its brief on August 25, 2020, and the trial court
issued its order on August 27, 2020. The order stated that Thompson would be
held jointly and severally liable with Reed and Crooks for the remaining unpaid
portion of the $47,000.00. This appeal followed.
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ANALYSIS
a. Standard of Review
When a defendant challenges the amount of restitution he or she is
ordered to pay in a criminal matter on appeal, we must determine whether the trial
court abused its discretion. Fields v. Commonwealth, 123 S.W.3d 914, 917 (Ky.
App. 2003). The test for abuse of discretion is whether the trial court’s decision
was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). As the trial court is
the fact-finder charged with determining the amount of restitution, our review of
the trial court’s findings of fact is “governed by the rule that such findings shall not
be set aside unless clearly erroneous.” Donovan v. Commonwealth, 376 S.W.3d
628, 631 (Ky. App. 2012) (citing Kentucky Rule of Civil Procedure (CR) 59.01)).
We will only deem a factual finding clearly erroneous if it is unsupported by
substantial evidence. Id. (citing Owens-Corning Fiberglas Corp. v. Golightly, 976
S.W.2d 409, 414 (Ky. 1998)).
b. Discussion
Kentucky Revised Statutes (KRS) 533.030(3) provides for victim
restitution in criminal cases. In relevant part, the statute states:
When imposing a sentence of probation . . . in a case
where a victim of a crime has suffered monetary damage
as a result of the crime due to his or her property having
been converted, stolen, or unlawfully obtained, . . . the
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court shall order the defendant to make restitution in
addition to any other penalty provided for the
commission of the offense. . . . Restitution shall be
ordered in the full amount of the damages . . . . Where
there is more than one (1) defendant or more than one (1)
victim, restitution may be apportioned.
(Emphasis added.)
As a preliminary matter, “[b]ecause restitution provisions are remedial
in nature, they ‘should be liberally construed in favor of their remedial purpose.’”
Commonwealth v. Morseman, 379 S.W.3d 144, 148 (Ky. 2012) (quoting
Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 794 (Ky. 2008)).
Additionally, the Kentucky Supreme Court has discussed “the essential elements of
due process that must be observed in establishing an order for restitution under
KRS 532.032.” Jones v. Commonwealth, 382 S.W.3d 22, 31 (Ky. 2011). “[T]he
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.” Id. at 32. Additionally:
constitutional due process requires an adversarial hearing
that includes the following protections:
• reasonable notice to the defendant in advance
of the sentencing hearing of the amount of
restitution claimed and of the nature of the
expenses for which restitution is claimed; and
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• a hearing before a disinterested and impartial
judge that includes a reasonable opportunity for
the defendant, with assistance of counsel, to
examine the evidence or other information
presented in support of an order of restitution;
and
• 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[.]
Id.
Additionally, in Morseman, the Kentucky Supreme Court held that the
applicable restitution statutes do not bar a plea agreement for restitution that
extends to crimes beyond those that the defendant was convicted of by way of his
plea agreement. 379 S.W.3d at 151. Thus, under Morseman, a trial court may
order a criminal defendant to pay restitution to a victim of a crime for which he
was not convicted if the defendant freely and voluntarily agrees to make restitution
for other crimes as part of the plea agreement. Id. at 152 (citing and adopting
Maryland’s rule as codified in Silver v. Maryland, 420 Md. 415, 428-29, 23 A.3d
867, 874-75 (2011)).
Thus, in this case, Thompson’s plea agreement could include an
agreement that Thompson would pay restitution for the total amount of the stolen
money, less the amounts already returned, even though he pled guilty to receiving
stolen property under $10,000.00. However, Thompson claims that he did not
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freely and voluntarily agree to make such restitution. Specifically, he claims that
he was unaware of the final amount of restitution claimed by the Commonwealth.
As discussed in Morseman, plea bargains “are governed by basic
contract law.” 379 S.W.3d at 149 (citation omitted). Moreover, Morseman
requires that “[the contract’s] terms must necessarily be interpreted in light of the
parties’ reasonable expectations and understanding of what the agreement
means[.]” Id. at 150 (quoting 22 C.J.S. Criminal Law § 490 (2006)).
In this case, the record reflects that Thompson returned a certain
portion of the stolen funds to the victim and that all the defendants understood that
the outstanding remaining balance of the stolen funds was $26,559.00. Further, at
the end of the hearing, the trial court allowed defense counsel to brief the issue of
the amount of restitution before the trial court made its decision. In the brief,
defense counsel did not argue that Thompson was unaware of the total amount of
the stolen funds remaining to be returned to the victim or had not received
reasonable notice of the amount of restitution claimed. Rather, Thompson argued
that he disagreed with the amount that the Commonwealth was requesting him to
pay in restitution. The record reflects that the Commonwealth produced sufficient
proof of the validity of the amount of restitution requested for the victim and that
Thompson was aware of that number. While Thompson may have preferred a
different amount, such fact does not factor into the analysis.
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In a similar vein, Thompson next asserts that his plea agreement was
invalid under Morseman because it did not specify an exact dollar amount for his
restitution. While the specific plea agreement at issue in Morseman did contain an
exact dollar amount, the Kentucky Supreme Court did not hold that a plea
agreement must specify a restitution dollar amount to include restitution for “other
crimes” or indicate that its holding should be limited to the facts contained in the
opinion.
In addition, we note that the Morseman Court adopted Maryland’s
restitution rule “as the law of Kentucky.” Morseman, 379 S.W.3d at 152. The
Maryland case our Supreme Court relied upon rejected the notion that a plea
agreement encompassing restitution for other crimes must set forth a restitution
dollar amount to be enforceable. See Silver, 420 Md. 415, 430, 23 A.3d at 875-76
n.19 (noting that a restitution agreement including other crimes was enforceable
even though “the exact sum may not be contained in the plea recital.”).
Thus, we conclude that Thompson’s plea agreement was enforceable
despite the fact it did not include a specific dollar amount for restitution. Our
Supreme Court has not imposed such a requirement, and we do not see any reason
to do so now.
Thompson further contends that the trial court abused its discretion in
finding him jointly and severally liable with the two other defendants for the full
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amount of restitution. While trial courts certainly have the option of apportioning
liability, “[a]pportionment among defendants is not mandatory.” R.S. v.
Commonwealth, 423 S.W.3d 178, 189 (Ky. 2014) (emphasis in original). When
there are multiple defendants, a trial court has discretion as to whether it should
apportion restitution. See KRS 533.030(3) (“[w]here there is more than one (1)
defendant or more than one (1) victim, restitution may be apportioned.”); R.S., 423
S.W.3d at 189. Indeed, “ordering a defendant to pay full restitution despite the
court’s awareness of others’ involvement does not frustrate the purpose of
restitution because the purpose is to restore to the victim what was lost as a result
of the criminal activity.” R.S., 423 S.W.3d at 188. Based on the plain wording of
KRS 533.030(3) and the fact that joint and several liability is consistent with the
legislative intent of ensuring victims are fully restored, the trial court did not abuse
its discretion in holding Thompson jointly and severally liable for the full amount
with the two other defendants.
In this case, Thompson agreed as part of his receipt of probation to
provide restitution to the victim on a joint and several basis. The trial court held an
adversarial hearing where evidence was presented concerning the amount owed.
The court heard arguments from both sides before determining the amount owed to
the victim in restitution. We do not find any violation of Thompson’s due process
rights or an abuse of the trial court’s discretion.
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CONCLUSION
For the foregoing reasons, we affirm the Hardin Circuit Court’s order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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