Mitchell v. Commonwealth

538 S.W.3d 326
CourtCourt of Appeals of Kentucky
DecidedDecember 22, 2017
DocketNO. 2016-CA-001319-MR; NO. 2016-CA-001320-MR
StatusPublished
Cited by6 cases

This text of 538 S.W.3d 326 (Mitchell 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
Mitchell v. Commonwealth, 538 S.W.3d 326 (Ky. Ct. App. 2017).

Opinion

THOMPSON, JUDGE:

Shannquan Mitchell and April Shunnarah appeal from separate judgments of sentence and conviction incorporating orders of restitution entered after they pled guilty to facilitation of burglary, second degree, and facilitation of receiving stolen property over $500, both Class A misdemeanors, for a recommended sentence of twelve months on both charges. Because their appeals arise from the same facts and they present identical issues, this Court consolidated their appeals.

Mitchell and Shunnarah present the following issues: (1) whether there was substantial evidence of the value of the items stolen; (2) whether their due process rights were violated because the restitution order required payment of restitution for items that were not claimed by the victim to be stolen prior to the restitution hearing; (3) whether the trial court erroneously added sales tax to the restitution amount; (4) whether the trial court erred when it ordered them to pay twelve percent post-judgment interest; and (5) whether the trial court erred when it imposed a $500 fine on each of them after they were found to be indigent. Although we conclude Mitchell and Shunnarah were afforded due process, we agree with their remaining contentions.

On May 28, 2014, Mitchell and Shunnarah, along with Kenneth Aldridge, burglarized the home of Theresa Abney. As part of their agreements to enter guilty pleas, Mitchell and Shunnarah agreed to "pay any and all restitution owed" to Abney. The amount of restitution was to be set at a later hearing.

*328Prior to the restitution hearing, the Commonwealth tendered an incident/investigative report which was admitted as an exhibit at the restitution hearing. The items identified in that report for which restitution was sought were televisions and ten items of jewelry with a total value of $3,021.

After the Commonwealth informed the court that Aldridge agreed the amount of restitution owed was $3,021 and to be jointly and severally liable, the hearing proceeded. The sole witness was Abney.

Abney testified that stolen televisions were recovered but one was damaged. The estimated repair value for the damaged television was $650 and the replacement value was $400. Abney testified that she obtained the value of the missing jewelry listed from researching their value on Amazon.com and that she determined the value by using the median prices for the items. The $250 difference between the repair cost and the replacement value of the damaged television was deducted from the restitution sought for a total of $2,771.

The Commonwealth then asked Abney if there were "other items that you have since recalled that you didn't actually include in that original list that you lost in the burglary?" Mitchell's counsel objected to questions concerning items not included on the list of items tendered by the Commonwealth on the basis that no notice was given that those items would be claimed. The trial court ruled that she could testify as to additional missing items and their value. Abney again based the value of the missing items on the medium prices available on Amazon and, when added to the prior amount, the total restitution sought was $3,686.

After direct and cross-examination of Abney was complete, Mitchell's counsel indicated he may need time to investigate regarding the items not on the list. The trial court ruled that additional time would be afforded but that Abney would be permitted to add any additional items found missing from the home. Fearing that Abney would add items and increase the amount of restitution, counsel declined the trial court's offer of additional time to investigate.

Following arguments by counsel, the trial court ordered Mitchell and Shunnarah to pay $3,686 in restitution plus $229 in sales tax. Additionally, the trial court assessed twelve percent interest on the total amount of restitution owed. The restitution order was incorporated into the final judgments of sentences and convictions in which Mitchell and Shunnarah were each ordered to pay a $500 fine.

Mitchell and Shunnarah do not challenge the enforceability of their plea agreements or that they owe restitution. They challenge the amount of restitution.

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[.]" Kentucky Revised Statutes (KRS) 532.350(1)(a). When the amount of restitution has not been agreed upon by the Commonwealth and the defendant, the trial court is required to conduct an adversarial hearing that satisfies due process. Jones v. Commonwealth , 382 S.W.3d 22 (Ky. 2011). In Jones , the Court set forth the protection that must be afforded to a defendant:

• 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
• a hearing before a disinterested and impartial judge that includes a reasonable *329opportunity 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; 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.

Id. at 32.

Because KRS 532.033(3) places the duty on the trial court to set the amount of restitution, the trial court is the fact-finder in the matter. Donovan v. Commonwealth. , 376 S.W.3d 628, 631 (Ky. App. 2012). As the Court noted in Donovan :

[A]ppellate 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. A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.

Id. (citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
538 S.W.3d 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-commonwealth-kyctapp-2017.