Bentley v. Commonwealth

497 S.W.3d 253, 2016 Ky. App. LEXIS 133, 2016 WL 4056411
CourtCourt of Appeals of Kentucky
DecidedJuly 29, 2016
DocketNO. 2015-CA-000806-MR
StatusPublished
Cited by2 cases

This text of 497 S.W.3d 253 (Bentley 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
Bentley v. Commonwealth, 497 S.W.3d 253, 2016 Ky. App. LEXIS 133, 2016 WL 4056411 (Ky. Ct. App. 2016).

Opinion

OPINION

J. LAMBERT, JUDGE:

Jonathan Bentley appeals from the Letcher Circuit Court’s judgment and sentence entered pursuant to a conditional guilty plea, ordering him to pay restitution to the victims and to the victims’ insurance pi’ovider. After careful review, we affirm in part and reverse in part.

Bentley was charged with complicity to receiving stolen property valued at $10,000.00 or more. As part of his plea agreement, Bentley was sentenced to five-years’ imprisonment, which was probated for five years, and was ordered by the trial court to pay restitution of $1,000.00 to the victims of his crime and $11,000.00 to Kentucky Farm Bureau Insurance Company (Kentucky Farm Bureau), the victims’ insurer.

The record indicates that on November 5, 2012, Bentley, along with two other defendants, knowingly had in his possession stolen firearms belonging to Travis and Hillary Meade. Most of the stolen property was recovered, and Kentucky Farm Bureau paid the Meades $12,000.00 under a homeowner’s policy, with $1,000.00 amounting to the Meades’ deductible under the policy. The plea offered by the Commonwealth indicated that Bentley would pay the Meades restitution based on the $1,000.00 deductible and Kentucky Farm Bureau restitution amounting to the $11,000.00 it paid under the policy. As stated above, Bentley accepted the plea conditioned on the right to appeal the portion of the judgment ordering him to pay restitution to Kentucky Farm Bureau, and the trial court entered its judgment and sentence on April 14, 2015. This appeal now follows.

On appeal, Bentley’s only argument is that the trial court erred when it ordered him to pay restitution to an insurance company as part of his plea agreement. In support of this, Bentley argues that the trial court improperly relied on Commonwealth v. Morseman, 379 S.W.3d 144 (Ky.[255]*2552012), in determining that restitution to Kentucky Farm Bureau was proper. Bentley contends that under Kentucky Revised Statutes (KRS) 532.032(1), 533.030(3), and 431.200, restitution is to be limited to a victim’s out-of-pocket expenses, and Kentucky Farm Bureau could pursue reimbursement through civil litigation against him.

We review a trial court’s findings with regard to restitution for an abuse of discretion. See Morseman, supra, at 148. The test for abuse of discretion is “whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Bentley argues that the trial court should only have ordered him to pay restitution to the Meades and not to Kentucky Farm Bureau, because Kentucky Farm Bureau is not the victim of his crime and would have a subrogation claim against any money the Meades received. In support of this, Bentley argues that the trial court overlooked the Attorney General’s opinion in Ky. OAG 94-57 (1994), in its judgment ordering restitution. Therein, Attorney General Chris Gorman addressed the question of whether a trial court could order a person convicted of a crime to pay restitution to an insurer who has previously compensated a crime victim. Citing Clayborn v. Commonwealth, 701 S.W.2d 413, 415 (Ky.App.1985), AG Gorman noted that KRS 533.030(3) limits restitution to the victim’s actual out-of-pocket expenses. AG Gorman further noted that in Clayborn, this Court reasoned that to the extent that a victim has been compensated for a loss by insurance, there is no statutory authority to impose restitution as a condition of probation. The Opinion further stated:

Insurers do not fall within the category of victims or aggrieved persons. The insurer does not make its payment or settlement by virtue of being directly threatened or injured by the criminal defendant. Thus, an insurance payment or settlement is not a direct loss or injury as a result of criminal activity; It is an indirect “loss” resulting from a contractual arrangement between the victim and the insurer. A review of the statutes and case law indicates that the legislature did not intend for. KRS 431.200 or KRS 533.030 to provide any direct relief to insurers. Consequently, trial courts are not authorized to order restitution or reparation directly to an insurer as part of a criminal proceeding. As noted, the victim and the victim’s insurer retain the right to proceed against the defendant in a civil action. Further, any restitution or reparation of property to the victim under KRS 431.200 would be subject to any subro-gation agreement between the victim and the insurer. However, both of those matters would be independent of the criminal proceeding.

Bentley acknowledges that Opinions of the Attorney General are not binding on courts, but are instead considered to be highly persuasive and are accorded great weight. See Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky.App.2001).

The Commonwealth argues that the trial court did not abuse its discretion by ordering Bentley to pay restitution to Kentucky Farm Bureau. In support of its argument, the Commonwealth argues that an insurance company is a victim under KRS 533.030. Further, the Commonwealth argues that restitution provisions are remedial in nature and should be construed liberally because of their remedial purpose, citing Morseman, 379 S.W.3d at 148. The. Commonwealth does not address in its brief to this Court whether or not the AG’s opinion in Ky. OAG 94-57 (1994), applies [256]*256and concedes that there is conflicting law with regard to whether an entity such as an insurance company is a victim. Instead, the Commonwealth cites to Blevins v. Commonwealth, 435 S.W.3d 637, 640 (Ky.App.2014), and cases from other jurisdictions as persuasive authority for this Court to conclude that an insurance company can be a victim.

We agree with the Commonwealth that the law is somewhat confusing on the particular issue of whether an insurance company is a victim under KRS 533.030(3). That statute provides:

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Cite This Page — Counsel Stack

Bluebook (online)
497 S.W.3d 253, 2016 Ky. App. LEXIS 133, 2016 WL 4056411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bentley-v-commonwealth-kyctapp-2016.