Commonwealth of Kentucky v. Robert W. Brock

• Court: Court of Appeals of Kentucky
• Decided: January 16, 2026
• Docket: 2025-CA-0029
• Status: Published

Opinion

RENDERED: JANUARY 16, 2026; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0029-MR

APPELLANT COMMONWEALTH OF KENTUCKY

APPEAL FROM POWELL CIRCUIT COURT v. HONORABLE LISA HAYDEN WHISMAN, JUDGE ACTION NO. 23-CR-00039

ROBERT W. BROCK APPELLEE

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.

CETRULO, JUDGE: The Commonwealth appeals a Powell Circuit Court order

interpreting the newly amended Kentucky Revised Statute (“KRS”) 512.020. The

circuit court held that restitution may be deposited with the clerk of court to hold

until after trial (instead of being paid to the alleged victim prior to trial) in order to

proceed on a class B misdemeanor under KRS 512.020(2)(b). Limiting our review

to questions of statutory interpretation, and finding the unambiguous language of the statute allows for no such “escrow” scheme, we vacate the circuit court order

and remand for further proceedings.

FACTS & PROCEDURAL BACKGROUND

In January 2023, the Powell County grand jury indicted Robert W.

Brock (“Brock”) on one count of criminal mischief in the first-degree, a class D

felony, under KRS 512.020. The indictment stemmed from a criminal complaint

against Brock alleging that in November 2020, he used a pellet gun to shoot at his

sister and brother-in-law’s kitchen window resulting in property damage of

$1,675.59.1 Brock entered a not guilty plea at his arraignment in circuit court and

has steadfastly maintained his innocence throughout the case, declining the

Commonwealth’s offer to dismiss the case upon payment of restitution.

In August 2024, Brock filed a motion with the circuit court opting to

proceed under the recently amended KRS 512.020(2)(b),2 which maintained first-

degree criminal mischief class D felony status “unless” a defendant provided full

restitution or its equivalent prior to trial. Once completed, a defendant would be

subject to a class B misdemeanor for a first offense. KRS 512.020(2)(b).

1 This charge was initially brought in Powell District Court in November 2020 as a misdemeanor for criminal mischief in the second-degree under KRS 512.030. The matter was set for jury trial twice, but the case was dismissed without prejudice in October 2022. 2 See KRS 446.110 (“If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.”).

-2- Brock did not waive his right to a jury trial and made no concessions

regarding his innocence, indicating that his consent to prosecution under the

revised statute was premised on reducing his sentencing exposure should he be

convicted. The issue then arose over Brock’s assertion that he gave $1,500 to his

defense counsel to hold in escrow pending the jury’s verdict. Brock stated that

should he be convicted of the class B misdemeanor, the escrow funds would then

be released to the victims as restitution. However, he argued that should he be

acquitted of the class B misdemeanor, the escrow funds would then be returned to

him. The Commonwealth objected to this “escrow-refund scheme” and argued

that a plain reading of KRS 512.020(2)(b) required a defendant to make a victim

“whole” prior to being able to take advantage of the reduction from class D felony

to class B misdemeanor (and the related lessor penalty range).

The circuit court entered its written decision on December 3, 2024,

observing that the presumption of innocence prohibited penalizing a person for

asserting the right to trial and permitted Brock to proceed under KRS

512.020(2)(b) as amended. Regarding the question of statutory interpretation, the

court found that KRS 512.020 as amended contained ambiguities, and the rule of

lenity required the resolution of such in Brock’s favor. In conclusion, the circuit

court ordered the following:

IF Mr. Brock deposits the full amount of alleged restitution . . . with the clerk of court “prior to trial” as the

-3- statute states, and if he is convicted at trial – the punishment range would be a class B misdemeanor punishment range and the restitution amount would be forfeited to the alleged victim upon conviction.

The Commonwealth brought this interlocutory appeal pursuant to

KRS 22A.020(4).

STANDARD OF REVIEW

“Matters of statutory construction and interpretation are questions of

law, which this Court reviews de novo.” Dep’t of Revenue, Fin. & Admin. Cabinet

v. Hale, Inc., 707 S.W.3d 522, 525 (Ky. App. 2025) (citing Pennyrile Allied Cmty.

Servs., Inc. v. Rogers, 459 S.W.3d 339, 342 (Ky. 2015)).

ANALYSIS

On appeal, the Commonwealth argues the circuit court erred in

granting Brock’s motion, thereby allowing him to proceed to trial on a

misdemeanor when he had not qualified for that reduction (due to his

failure/refusal to pay restitution in full to the victims as required by KRS

512.020(2)(b)).

We begin our analysis by stating the “cardinal rule” of statutory

interpretation, which is “that the intention of the legislature should be ascertained

and given effect.” Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718 (Ky.

2012) (quoting MPM Fin. Grp., Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009)).

-4- See also KRS 446.080(1) (“All statutes of this state shall be liberally construed

with a view to promote their objects and carry out the intent of the legislature[.]”).

To discern legislative intent, we look first at the language of the

statute. Fell, 391 S.W.3d at 720 (quoting Shawnee Telecom Res., Inc., v. Brown,

354 S.W.3d 542, 551 (Ky. 2011)). See also Seeger v. Lanham, 542 S.W.3d 286,

291 (Ky. 2018) (“We must look first to the plain language of the statute and, if the

language is clear, our inquiry ends.”). “Resort to the canons of construction or

other extrinsic evidence of the legislature’s intent is appropriate ‘[o]nly if the

statute is ambiguous or otherwise frustrates a plain reading[.]’” Rushin v.

Commonwealth, 701 S.W.3d 293, 298 (Ky. 2024) (alterations in original) (quoting

Shawnee Telecom, 354 S.W.3d at 551). “We also presume that the General

Assembly did not intend an absurd statute or an unconstitutional one[.]” Fell, 391

S.W.3d at 718-19 (quoting Shawnee Telecom, 354 S.W.3d at 551).

When considering the plain language, we do not carve out from the

statute a single word, phrase, sentence, or subsection upon which to narrow the

focus of our analysis. See id. at 719 (citations omitted). Instead, “[t]he statute

must be read as a whole and in context with other parts of the law. All parts of the

statute must be given equal effect so that no part of the statute will become

meaningless or ineffectual.” Century Aluminum of Kentucky, GP v. Dep’t of

-5- Revenue, 664 S.W.3d 546, 558 (Ky. 2022) (alteration in original) (quoting Lewis v.

Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005)).

This appeal presents a matter of first impression. Turning to the

statute at issue, first-degree criminal mischief is defined in KRS 512.020(1), and at

the time of Brock’s 2023 indictment, required the Commonwealth to prove that a

defendant intentionally or wantonly damaged property of another resulting in a

monetary loss of $1,000 or more. KRS 512.020(1)(a) (2023). Additionally, at that

time, KRS 512.020(2) designated first-degree criminal mischief as a class D

felony. It did not contain language creating an option for a reduced penalty range.

KRS 512.020(2) (2023).

In 2024, the Kentucky General Assembly amended KRS 512.020(2),

adding subsection (b) to provide the following:

(2) Criminal mischief in the first degree is a Class D felony unless:

...

(b) For the first offense, if the defendant at any time prior to trial effects repair or replacement of the defaced, destroyed, or damaged property, makes complete restitution in the amount of the damage, or performs community service as required by the court, in which case it is a Class B misdemeanor. The court shall determine the number of hours of community service commensurate with the total amount of monetary damage caused by or incidental to the commission of the crime, of not less than sixty (60) hours[.]

-6- KRS 512.020(2)(b).

The Commonwealth contends that KRS 512.020(2)(b) presents no

ambiguity, and its plain language requires restitution to be paid in full to the

victim(s), as opposed to being held by the clerk of court, prior to trial for an

accused to avail himself of facing a reduced penalty range. Given that there is no

statutory ambiguity, the Commonwealth argues that the rule of lenity is

inapplicable.

An ambiguity arises “[w]hen the undefined words or terms in a statute

give rise to two mutually exclusive, yet reasonable constructions[.]” MPM Fin.

Grp., 289 S.W.3d at 198 (citing Young v. Hammond, 139 S.W.3d 895, 910 (Ky.

2004)). Brock argues that KRS 512.020(2)(b) is ambiguous as it does not specify

the essential questions of who and how to pay restitution; for instance, should the

defendant pay restitution directly to the victim, the Commonwealth, or the clerk of

court? Brock claims that an interpretation allowing the circuit court (by means of

the clerk of court) to hold the full restitution amount for disbursement to the

victim(s) only after a guilty verdict resolves this ambiguity. Otherwise, as Brock

maintains, the innocent could be treated more severely than the guilty, either by

refusing to pay and facing harsher penalties at trial or by sacrificing funds pretrial

with no recourse for recoupment upon acquittal. The unfairness of this Catch-22,

-7- Brock surmises, could not have been intended by the General Assembly as he

argues it constitutes a penalty on asserting the right to trial.

No doubt that there are valid concerns as to the potential “unfair”

consequences of the statute; however, on appeal, the Commonwealth’s argument is

limited, merely challenging the circuit court’s statutory interpretation, not the

constitutionality of the amended statute. Accordingly, the question before us is

one of statutory interpretation: Must an accused pay restitution in full to the victim

prior to trial to receive the mitigated benefit of KRS 512.020(2)(b)? Looking at the

plain language of the statute and reading all its parts as a whole, the answer is

“yes.”

Under KRS 512.020(2)(b), a defendant has three options “prior to

trial” to be subject to a class B misdemeanor: (1) “effect[] repair or replacement”;

(2) “make[] complete restitution”; or (3) “perform[] community service[.]” The

statute does not address what happens in the event of an acquittal. In comparison

to Brock’s argument, options (1) and (3) likewise have no recourse for a defendant

to recover his expended efforts. Could an acquitted defendant theoretically seek

reimbursement for repair, replacement, or sweat equity? Again, that is not the

question before us, and we decline to engage in such speculation. See, e.g.,

Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575, 577 (Ky. 1994)

(citing Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962)) (“We are

-8- not at liberty to add or subtract from the legislative enactment nor discover

meaning not reasonably ascertainable from the language used.”).

“It is well settled law that a court may not add language to the written

law to achieve a desired result.” Fox v. Grayson, 317 S.W.3d 1, 8 (Ky. 2010)

(citations omitted). The express wording of the statute stands in contrast with

Brock’s argument and cannot be escaped by only addressing possible

complications surrounding the phrase, “makes complete restitution.”

We must consider the General Assembly’s use of the words, “effects”

and “performs,” in the context of the statutory provision. When doing so, under

option (1), the victim’s damaged property would be repaired or replaced; and under

option (3), the defendant would have performed no less than 60 hours of

community service. The performances required for a class B misdemeanor are

satisfied, and the victim, either in an individual or collective-community sense, is

made whole.

To permit a defendant choosing option (2) to put the complete amount

of restitution on hold pending the outcome of trial suspends the required

performance and creates inconsistencies among the statutory options. Given

Brock’s concerns over disparate treatment, his endorsed approach ignores the fact

that it effectively carves out an exception for those defendants – innocent and/or

principled – with financial means to expend nothing upfront yet face the same

-9- consequences as those whose only feasible option may be community service.

“[W]hen ‘there is an apparent conflict between statutes or sections thereof, it is the

duty of the court to try to harmonize the interpretation of the law so as to give

effect to both sections or statutes if possible.’” Century Aluminum of Kentucky,

664 S.W.3d at 558 (quoting Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky.

1983)).

We hold that KRS 512.020(2)(b) is clear and unambiguous, and

therefore, need not resort to employing the rule of lenity or other canons of

statutory construction. Our decision is not to say that we do not appreciate Brock’s

predicament of wanting to seek vindication at trial yet reduce his penalty exposure

at the same time. This situation, however, is no different than that of weighing

acceptance of a plea offer, a context wherein hundreds of thousands of accused

individuals are faced with “the unpleasant alternatives of forgoing trial or facing

charges on which [they are] plainly subject to prosecution.” Porter v.

Commonwealth, 394 S.W.3d 382, 391-92 (Ky. 2011) (quoting Bordenkircher v.

Hayes, 434 U.S. 357, 365 (1978) (holding plea offer agreeing to not seek

indictment on more serious charges did not violate the Due Process Clause)).

We also understand the circuit court and parties’ frustrations in

applying a rather unusual criminal statute. Indeed, the amendments to KRS

512.020(2)(b) put the cart before the horse, so to speak, as an order of restitution

-10- and its logistics are matters typically undertaken in the sentencing phase. See, e.g.,

KRS 532.032-.033; KRS 533.030. That quandary, however, is not before us. See

Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (citations omitted) (“It is a

fundamental tenet of Kentucky jurisprudence that courts cannot decide matters that

have not yet ripened into concrete disputes. Courts are not permitted to render

advisory opinions.”).

CONCLUSION

Finding that KRS 512.020(2)(b) is clear and unambiguous, we

VACATE the Powell Circuit Court’s order and REMAND for further proceedings.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Russell Coleman John Gerhart Landon Attorney General of Kentucky Lexington, Kentucky

Ken W. Riggs Assistant Attorney General Frankfort, Kentucky

-11-