Adams v. Commonwealth

560 S.W.3d 879
CourtCourt of Appeals of Kentucky
DecidedSeptember 28, 2018
DocketNO. 2017-CA-001075-MR
StatusPublished
Cited by2 cases

This text of 560 S.W.3d 879 (Adams v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Commonwealth, 560 S.W.3d 879 (Ky. Ct. App. 2018).

Opinion

DIXON, JUDGE:

Trenton Adams appeals from an order of the Pulaski Circuit Court ordering him to pay restitution of $100,000 to Charlotte Bullock. We affirm.

Adams, while intoxicated, caused a head-on collision that seriously injured Bullock. On December 6, 2016, Adams pled guilty to amended charges of second-degree assault and wanton endangerment. At Bullock's request the Commonwealth agreed to pre-trial diversion on both charges. In its diversion order, the court imposed numerous conditions, including payment of an unspecified amount of restitution, and diverted Adams's fifteen-year sentence for a period of five years. During the sentencing hearing, the court inquired as to the amount of restitution. The Commonwealth advised that Bullock had medical expenses that would likely be covered by a settlement with Adams's motor vehicle insurance company, however, the case had not yet settled. The court stated it would not include a specific restitution figure in the diversion order but noted the Commonwealth could file a motion for restitution within ten days.

On March 23, 2017, the Commonwealth requested a hearing date to establish restitution, noting Bullock stated she had to repay Medicare $50,000. The restitution hearing was held April 21. Bullock, a retired school teacher, testified her medical bills totaled nearly $1,000,000, and Medicare sued her to recover $150,000. Bullock stated her out-of-pocket cost was $50,000, which she paid to settle the Medicare claim. Bullock entered a settlement agreement with Adams's insurance company for $300,000, and she also received $100,000 in underinsured motorist coverage from her own policy. On cross-examination, Bullock acknowledged signing a document releasing Adams from further liability when she accepted the settlement from his insurance company. On re-direct, Bullock testified that, before the collision, she had worked as a substitute teacher and tutor. Bullock estimated her income from those jobs had been between $5,000 and $10,000 per year, and she noted she did not think she could return to work due to her injuries.

The trial court issued a written order concluding the civil settlement and release of liability did not preclude the imposition of criminal restitution. The court, citing Bullock's testimony she incurred $1,000,000 in medical expenses, ordered Adams to pay $100,000 in restitution to Bullock. This appeal followed.

Adams raises five claims of error on appeal; however, he has failed to provide any references to the record to show where four of the alleged errors were preserved for appellate review.1 CR 2 76.12(4)(c)(v) requires:

[a]n "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

This rule ensures

that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the *882case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley , 391 S.W.3d 377, 380 (Ky. App. 2012).

The record in this case is minimal, and our review indicates Adams failed to properly preserve four of the errors alleged on appeal. Notably, Adams did not request palpable error review for three of these errors.3 "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth , 251 S.W.3d 309, 316 (Ky. 2008). Consequently, as Adams has not requested palpable error review, we decline to address these three issues.

Of Adams's two remaining issues, only one was preserved; he requests palpable error review for the other. In the sole issue preserved, Adams contends the release of liability in the civil case precluded an award of criminal restitution. We disagree.

In Commonwealth v. Bailey , 721 S.W.2d 706, 707 (Ky. 1986), the court explained that the purpose of restitution is not an "additional punishment exacted by the criminal justice system.... It is merely a system designed to restore property or the value thereof to the victim." KRS 532.032 and KRS 532.033 vest the trial court with the authority to establish and enforce an order of restitution. KRS 533.030(3) provides, in relevant part:

When imposing a sentence of probation or conditional discharge in a case where a victim of a crime has suffered ... actual medical expenses, direct out-of-pocket losses, or loss of earning as a direct result of the crime ... the 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, unless the damages exceed one hundred thousand dollars ($100,000)....

More specifically, KRS 533.030(3)(d) provides that an order of criminal restitution does not prevent a victim from seeking civil damages from a defendant; however, the statute states that "[a] civil verdict shall be reduced by the amount paid under the criminal restitution order." In Clayborn v. Commonwealth , 701 S.W.2d 413, 414 (Ky. App. 1985), this Court addressed the statute's application to restitution and the victim's receipt of Workers' Compensation benefits for the injuries sustained in a criminal assault. The Court explained:

The statute limits restitution to the victim's actual out-of-pocket expenses which are paid by the victim, the Department for Human Resources, the crime victim compensation board or other governmental entity. In this case, Motors Insurance Company paid the victim $22,000 for impaired earnings and medical expenses. If the victim's actual out-of-pocket losses exceeded $22,000 then he is entitled to restitution under KRS 533.030

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Cite This Page — Counsel Stack

Bluebook (online)
560 S.W.3d 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-commonwealth-kyctapp-2018.