Opinion
NO. 2014-CA-001371-MR
04-10-2015
CURTIS L. BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Curtis Brown, Pro Se Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 91-CR-001640
OPINION
AFFIRMING
BEFORE: CLAYTON, D. LAMBERT, AND J. LAMBERT, JUDGES. J. LAMBERT, JUDGE: Curtis Brown, proceeding pro se, has appealed from the July 11, 2014, order of the Jefferson Circuit Court denying his motion to overturn an order of the Parole Board requiring him to pay restitution as a condition of his parole. Finding no error, we affirm.
In 1991, Brown was indicted and charged with six counts of theft by deception over $100.00 (false impression) pursuant to Kentucky Revised Statutes (KRS) 514.040(1)(a) and four counts of second-degree criminal possession of a forged instrument pursuant to KRS 516.060. On May 28, 1992, the circuit court entered a judgment pursuant to a guilty plea finding him guilty of the theft by deception charges, dismissing the possession of a forged instrument charges, and sentencing him to concurrent ten-year sentences on the six counts. Brown's sentence was probated for five years, subject to several conditions, including the payment of restitution. The restitution document established that Brown owed $9,146.19, as well as a fee of $182.92, for a total of $9,329.11, payable in monthly installments of $156.00 beginning July 1, 1992. Brown's probation was revoked by order entered September 28, 1993, and he was sentenced to ten-years' imprisonment to run consecutively with a sentence he was serving in Indictment No. 92-CR-001868. A handwritten note in the record indicates that Brown's restitution balance was $4,119.45 as of March 12, 2007.
Brown was subsequently paroled by the Parole Board. On November 27, 2012, Brown filed a pro se motion requesting that the circuit court rescind the Parole Board's order of restitution. The court denied the motion by order entered December 6, 2012. Brown filed an appeal from this order, which was dismissed on August 7, 2013, due to his failure to file a brief.
In its brief, the Commonwealth states that Brown had been paroled on October 4, 2011.
On December 18, 2013, Brown again sought review of the restitution order by filing a pro se motion to appoint the Public Defender's Office to represent him in that matter. By order entered July 11, 2014, the circuit court denied Brown's motion. After setting forth the background of the case, the court stated in relevant part as follows:
He then sought the appointment of the public defender's office to represent him on the matter of the alleged unauthorized restitution. The Court appointed the public defender's office and set the matter for a hearing on restitution. Given that Mr. Brown is on parole, the public defender assigned to the case asked to be excused as no liberty interest was at stake. The motion was granted and at a subsequent hearing on July 1, 2014, Mr. Brown represented himself.This appeal now follows.
At the hearing, Mr. Brown argued that the Parole Board does not have the authority to require him to pay restitution as a condition of his parole. The Commonwealth argued that the Court lacks jurisdiction over this matter and in the alternative, the Parole Board may order restitution as a condition of parole.
The Court agrees with the Commonwealth that it lacks jurisdiction to overturn an order of the Parole Board. Parole in the state of Kentucky is a "matter of legislative grace" to which an inmate has no entitlement. Belcher v. Kentucky Parole Board, 917 S.W.2d 584 (Ky. App. 1996). As such, terms and conditions may be applied to the privilege of parole. KRS 532.032(4) clearly requires restitution be made a condition of parole for any person sentenced to incarceration and paroled. See also Parker v. Commonwealth, 331 S.W.3d 634 (Ky. App. 2011), wherein a parolee was required to pay restitution when ordered by the parole board even when the court order of restitution was held to be void. Therefore, this Court cannot provide the relief Mr. Brown is seeking. Restitution as a condition of his parole is not improper.
On appeal, Brown continues to argue that the Parole Board could not make restitution a condition of his parole because it had been a condition of his probation, which had been revoked, and there had not been a separate order of restitution. The Commonwealth contends that the circuit court properly denied Brown's motion.
First, we disagree with Brown that there was no order of restitution. On the contrary, the circuit court clearly ordered Brown to pay a specific amount of restitution as a condition of his probation, and the requirement that Brown pay restitution was included with the final judgment probating his sentence.
Second, we disagree with Brown's argument that the Parole Board did not have the authority to make restitution a condition of his parole. KRS 532.032(4) provides that "[i]f a person is sentenced to incarceration and paroled, restitution shall be made a condition of parole." Because this statute was in effect when Brown was paroled in 2011, it is applicable to him. In Parker v. Commonwealth, 331 S.W.3d 634, 636 (Ky. App. 2011), this Court held: "[T]he parole board had authority under [KRS] 532.032(4), to make restitution a condition of parole. . . . A parolee is required to pay restitution when ordered by the parole board even when a court entered an order requiring restitution is later void." In the present case, the circuit court ordered restitution in entering the final judgment probating his sentence, and the Parole Board had the authority to order restitution when it granted Brown parole.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Curtis Brown, Pro Se
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky