Opinion
NO. 2009-CA-000791-MR
06-27-2014
MICHAEL CUMMINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Amy Robinson Staples Assistant Public Advocate Frankfort, Kentucky REPLY BRIEF FOR APPELLANT: Timothy G. Arnold Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED ON REMAND FROM THE SUPREME COURT OF KENTUCKY
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 04-CR-00094
OPINION
REVERSING AND REMANDING
BEFORE: LAMBERT, MOORE, AND TAYLOR, JUDGES. LAMBERT, JUDGE: Michael Cummins has appealed from an order of the Franklin Circuit Court denying his motion to alter, amend, or vacate an earlier order finding him liable to assault victim Joshua Hulker for restitution in the amount of $40,727.79. On December 10, 2010, this Court rendered an opinion reversing the circuit court's order, holding that the circuit court did not have jurisdiction to enter the order imposing that amount of restitution and remanding with directions that the order clarifying be vacated and that the record reflect that Cummins had satisfied his restitution to Mr. Hulker. The Commonwealth filed a motion for discretionary review with the Supreme Court of Kentucky. On December 11, 2013, the Supreme Court granted discretionary review, vacated this Court's decision, and remanded the case to this Court for further consideration in light of its opinion in Commonwealth v. Steadman, 411 S.W.3d 717 (Ky. 2013). We again reverse the order on appeal.
The procedural history of this case is rather convoluted, as it concerns two separate indictments. In addition, our ability to discern the events that transpired at the circuit court level is somewhat hampered by an incomplete record. With this in mind, we shall attempt to set forth the events as they appear in the record and supplemental record before us.
In May 2004, Cummins was indicted along with two co-defendants by the Franklin County grand jury (No. 04-CR-00080-002). He and co-defendant Larry Cook, Jr., were indicted on a charge of first-degree burglary for entering the home of Lloyd Gaines in November 2002 and causing him physical injury. A third co-defendant, Steve Cox, was charged with complicity to first-degree burglary. In June 2004, Cummins and co-defendant Brandon Landrum were indicted on a separate charge of second-degree assault related to an attack on Joshua Hulker (No. 04-CR-00094-001). It appears from discussion in the video record that the assault charge went to trial before Judge Graham, the original presiding judge, but the trial ended in a hung jury.
The burglary and assault charges, together, ultimately became the basis for the Commonwealth's offer on a plea of guilty. The supplemental record contains the written offer, which was signed on April 20, 2006, and filed in the record on April 27, 2006. It reads as follows:
1. Charges:
Indictment No. 04-CR-00080-002
Burglary in the First Degree Penalty: 10-20 years
Class B Felony
KRS 511.020
UOR 22021
Indictment No. 04-CR-00094-001
Assault in the Second Degree Penalty: 5-10 years
Class C Felony
KRS 508.020
UOR 13160
2. Amended Charges: Amend Indictment No. 04-CR-00080-002 to KRS 511.030, Burglary in the 2nd Degree, Class C Felony, UOR 22022, Penalty 5-10 years. Amend Indictment No. 04-CR-00094-001 to KRS 508.030 Assault-Fourth Degree, Class A Misdemeanor, UOR 00430, 12 months.
3. Facts of the Case: In Indictment No. 04-CR-00080-002, the defendant forcibly entered a residence in Franklin [C]ounty Kentucky with the intent to commit a crime. In Indictment No. 04-CR-00094-001, the defendant assaulted Joshua Hulker with a stick or club.
4. Recommendations on a Plea of Guilty (Plea Agreement):
The Defendant shall be sentenced to five (5) years incarceration in the state corrections system on
Indictment No. 04-CR-00080-002 and 12 months incarceration on Indictment No. 04-CR-00094-001, the sentences to run concurrently for a total sentence of Five (5) years.
The Commonwealth shall take no position on probation so long as he be jointly and severally liable, along with his co-defendants to make restitution to the victim in Indictment No. 04-CR-00080-002, Lloyd D. Gaines, Jr., to cover the costs of medical expenses and loss of personal property taken in the amount of $6,877.23 and for any future medical expenses incurred as a result of the offense. Further, that he be jointly and severally liable, along with his co-defendant to make restitution to the victim in Indictment No. 04-CR-00094-001, Joshua Hulker, to cover the costs of medical expenses in the amount of $1,600.00 representing unreimbursed expenses disallowed by the Crime Victims Compensation Board. [Emphasis added.]
5. Reason for amended charges: Evidentiary considerations and saves the Commonwealth the expense of a trial.
6. Offered this the 20th day of March, 2006.
The circuit court (now with Judge Crittenden presiding) held a guilty plea hearing on April 21, 2006. At that time, the court and the parties discussed the Commonwealth's offer and its agreement to take no position on probation if Cummins agreed to pay restitution to the respective victims. In the course of this discussion, the court mentioned the amount of restitution owed in each case pursuant to the offer. Specifically related to the assault case, the circuit court stated that terms of the offer included the requirement that Cummins be jointly and severally liable to Mr. Hulker in the amount of $1,600.00. The court then asked Cummins if that was what had been communicated to him, and Cummins answered that it was. Cummins also indicated that he understood the meaning of joint and several liability. The circuit court accepted Cummins' plea and entered an order to this effect on April 27, 2006. In the order, the circuit court included a recitation of the Commonwealth's recommended sentence, but did not include the $1,600.00 amount. Rather, the order stated that he would "be jointly and severally liable, along with his co-defendant to make restitution to the victim in Indictment No. 04-CR-00094-001, Joshua Hulker, to cover the costs of medical expenses disallowed by the Crime Victims Compensation Board."
The circuit court held a sentencing hearing on June 23, 2006. During the hearing, Cummins requested probation and stated that he had agreed to pay restitution if the court probated his sentence. The Commonwealth, as it did in the offer, indicated that it would not object to probation if timely restitution payments were made. It also reported to the court that Mr. Hulker was unable to attend the hearing because he had been admitted to the hospital for follow-up surgery related to the injuries he received during the assault. The Commonwealth requested that the court ensure strong and continuing oversight of restitution, noting that the victim did not have any funds to pay for his medical expenses and needed a source of funds to pay for these. Upon questioning by the court, Cummins' attorney indicated that he had agreed to pay restitution if the court probated his sentence. At the conclusion of the hearing, the circuit court sentenced Cummins in accordance with the plea agreement (five years for the burglary charge and twelve months for the assault charge to run concurrently for five years) and probated the five-year sentence for a total of five years or until restitution was completed. It indicated that the liability for restitution was joint and several and that Cummins and his co-defendant would be liable to Mr. Hulker for medical expenses disallowed by the Crime Victims Compensation Board. At the hearing, the court stated, "So whatever they disallow, he's going to be on the hook for."
The judgment in No. 04-CR-00094-001 was entered on June 29, 2006. The judgment properly stated that Cummins' twelve-month prison term on the assault conviction was probated, but inaccurately ordered him to pay restitution in the amount of $6,877.23, which was the amount due on the burglary conviction. The order of probation was entered in both the assault and the burglary cases on the same day, and this order similarly ordered Cummins to make restitution to Lloyd Gains in the amount of $6,877.23, but did not mention any restitution payable to Mr. Hulker.
The record does not include the judgment in the burglary case, No. 04-CR-00080-002.
On July 21, 2006, the circuit court (now with Judge McNamara presiding) entered a sua sponte order correcting a "clerical error" in the order of probation: "[A]s a condition of probation the Defendant be jointly and severally liable, along with his co-defendant to make restitution to the victim in Indictment No. 04-CR-00094-001, Joshua Hulker, to cover the costs of medical expenses disallowed by the Crime Victims Compensation Board."
Two subsequent orders entered in 2006 and 2007, respectively, directed Cummins to have no contact with Mr. Hulker or any member of his family and addressed Mr. Hulker's immediate need for funds in excess of $1,000.00 to pay for surgery to correct injuries to his jaw.
The Commonwealth filed a motion on July 25, 2006, requesting that the court add this as a condition to Cummins' probation.
The circuit court held a hearing on February 9, 2007, related to the second matter. The Commonwealth indicated that the motion related to a condition of probation that Cummins pay restitution to Mr. Hulker, which was included in the July 21, 2006, sua sponte order. However, the amount was not established. The Commonwealth stated that Cummins had not paid any restitution into the court on behalf of Mr. Hulker, who needed $1,500.00 in funds to obtain surgery on his jaw. The Commonwealth asked the court to impose this obligation on Cummins. Cummins, through his counsel, requested an evidentiary hearing so that the court could determine if he or his co-defendant was responsible for these injuries. He noted that the case had been tried previously and had resulted in a hung jury. Cummins had hit Mr. Hulker in head with a stick, while the co-defendant hit him in the jaw. He understood that the bill needed to be paid, but believed that the hearing could be scheduled and held quickly. The court did not believe that an evidentiary hearing was necessary; both defendants hit the victim on the head and it was not going to divide up damages based on how and where each defendant hit Mr. Hulker. It stated that Cummins was fully responsible for restitution and that no hearing was needed. Cummins raised the issue of his inability to pay, stating that he drew social security benefits. The Commonwealth agreed that Cummins was entitled to a hearing on his ability to pay, but produced copies of his employment records. The court instructed parties to get a hearing date at end of motion hour. It was noted that Cummins had been paying $50.00 per month in restitution in the burglary case and that he thought his payments had been going to both restitution obligations. The court informed Cummins that it expected $1,600.00 to be paid quickly, or he would go to jail. The court concluded by stating that it would listen to any explanation at the evidentiary hearing. The record does not contain a recording of the evidentiary hearing, if one was ever held.
In the order entered March 30, 2007, the circuit court noted that Cummins had already paid $550.00 in restitution and ordered him to pay an additional $300.00 by Friday, March 23, 2007. The court went on to order that
commencing with the month of April 2007, the defendant shall pay to the clerk the sum of $50.00 per month which shall be first applied to the defendant's restitution obligation in Case No. 04-CR-00080-002 and then, upon satisfaction of that restitution obligation to defendants [sic] restitution obligation in the above captioned matter.
More than a year later, on April 21, 2008, the Commonwealth filed a motion to correct a clerical error in Cummins' restitution record, requesting that the court set the amount of restitution due at $40,727.79, which represented the outstanding medical expenses Mr. Hulker had incurred due to the assault. The motion set forth that in accordance with the plea agreement, both Cummins and his co-defendant were to pay restitution for medical expenses as a condition of their probation. The Commonwealth then stated that Mr. Hulker was continuing to receive medical treatment, including surgical care, for the injuries he sustained, and that he could not pay for these expenses. The Commonwealth reminded the court of the 2007 proceedings related to Mr. Hulker's need to obtain funds to pay for a surgical procedure, when the court ordered Cummins and his co-defendant to pay a certain sum of money and apportioned the payment of future funds between the two cases. The Commonwealth stated that "[u]pon entry of the order on March 30, 2007[,] and payment of the funds specified in [the order] the clerk [indicated] that the restitution requirement had been satisfied by these defendants." However, the Commonwealth contended that the restitution the defendants had paid pursuant to the March 30, 2007, order was a partial payment toward an immediate medical expense Mr. Hulker had incurred and that an additional $40,727.79 remained outstanding.
The circuit court (now with Judge Wingate presiding) held a hearing on the motion on April 25, 2008, during which the Commonwealth stated that at some point, the clerk had made a notation in the record that all restitution had been paid. However, the Commonwealth stated that the payment in 2007 was simply to permit Mr. Hulker to have surgery, but did not absolve the defendants from paying the remainder of the restitution. The Commonwealth stated that it filed the motion to clarify what the current amount of restitution totaled. Both Cummins and his co-defendant objected to the Commonwealth's motion. They argued that they had agreed to pay $1,600.00 in restitution, not in excess of $40,000.00, and that the error raised by the Commonwealth's motion was not a clerical error. Specifically, counsel for Cummins' co-defendant argued:
We object to this motion. And what's going on here is it's a motion to make a correction as a clerical error. The agreement was the two defendants pay $1,600.00 in restitution approximately. We're not talking about $41,000.00. That's not a clerical error. A brief history of the case is in '04, this incident was alleged to have happened. In '05, we took it to a jury trial. It was a hung jury, but it was strongly contested. We were going to try it again. The Commonwealth came back and offered something that our clients were willing to live with. But at that time this was still early on, there was discussion about all the restitution, for medical bills and whatnot. And both of our clients, my client was I think 18 at the time, I'm not sure about Mr. Cummins, maybe 18, 19, didn't have the resources, weren't going to agree to it, and we just said we would take it to trial again if that was what it was going to be. It ended up, at least with the records I've got, March of '06, I've got an offer from the Commonwealth that says the defendants are jointly and severally liable for $1,600.00. That was after the jury trial. The case still piddles along. Finally in September of '07, all this is cleared up, there's an order of probation and conditional discharge entered by this court, it says that at least for my client, I would assume it holds true for Mr. Cummins, I could be wrong, but for Mr. Landrum, that my client was to pay the sum of $850.00 and that was it. That's exactly right, Your Honor, and that was what the deal was, our discussion with Mr. Bolton said, well, if they can come and pay a large portion of this, we'll take that amount. And my client came, paid $500.00, plus what he had left of his bond, and satisfied restitution that day. And that was the reason, and there's case law, everyone I would assume knows that plea agreements are subject to contract law. The Commonwealth drafts an offer, we accepted. We do what we're supposed to do. And that's it. And since then it's my understanding, and I could be wrong, myCounsel for Cummins then stated, "Judge, Mr. Fox has expressed my sentiments exactly. I take the same position with Mr. Cummins in this case. It's a little different, Mr. Cummins had a couple of other indictments. He still is on probation, but as far as the restitution goes in this case, exact same issue."
client's even been discharged from probation. ... But you can't say, well, it's a clerical error, so instead of $850.00, you are jointly and severally liable for $41,000.00. That's ridiculous.
On May 5, 2008, the circuit court entered an order ruling on the Commonwealth's motion as follows:
ORDER CLARIFYING
This matter is before the Court upon the Commonwealth's motion for the Court to correct a clerical error in the Defendant's restitution record. The Court, having considered the record, having heard the arguments of counsel, and being otherwise sufficiently advised, issues the following Opinion and Order:
Defendant Brandon W. Landrum
(1) On August 6, 2004, Defendant Landrum was arraigned on one charge of Assault in the Second Degree, a Class C Felony. That case was styled 04-CR-00094(2).
(2) On March 23, 2006, Defendant Landrum entered a plea of guilty to an amended charge of Assault in the Fourth Degree, a Class A Misdemeanor. On that date, Defendant Landrum was sentenced to imprisonment for twelve (12) months, suspended for twelve (12) months on the condition that he pay the victim, Joshua Hulker, the amount of $850 in restitution along with certain other conditions for release.
(3) Defendant's Landrum's posted bond in the amount of $500 was applied to his restitution requirement and since
that time Defendant Landrum has fulfilled his obligatory payments and completed the remainder of his probationary terms and is no longer on probation.
(4) As such, Defendant Landrum does not owe the Victim, Mr. Hulker, any further restitution.
Defendant Michael S. Cummins
(5) On May 12, 2004, the Defendant, Cummins, was indicted by the Franklin County Grand Jury of: (a) Burglary in the First Degree, a Class B Felony; and (b) Complicity to Burglary in the First Degree, a Class B Felony committed on November 6th, 2002. That case was styled 04-CR-00080(2).
(6) On August 6, 2004, Defendant Cummins was arraigned on one charge of Assault in the Second Degree, a Class C Felony. That case was styled 04-CR-00094(1).
(7) On April 21, 2006, Defendant Cummins plead [sic] guilty to Burglary in the Second Degree, a Class C Felony under Indictment No. 04-CR-00080(2) and to Assault in the Fourth Degree, a Class A Misdemeanor under Indictment No. 04-CR-00094(1).
(8) The Defendant was sentenced on April 23, 2006. For the offense of Burglary in the Second Degree (Indictment No. 04-CR-00080(2)), Cummins was sentenced to a term of imprisonment of five (5) years to be probated for a term of five (5) years. For the offense of Assault in the Second [sic] Degree (Indictment No. 04-CR-00094(1)), Cummins was sentenced to a term of imprisonment for one (1) year to be probated for a term of five (5) years. Both sentences and probation terms were to run concurrently for a total of five (5) years imprisonment, probated for five (5) years.
(9) In addition to standard probation conditions such as drug testing and court costs, Defendant Cummins was ordered to pay restitution to the victims of his crime.
(10) For the crime of Burglary in the Second Degree (Indictment No. 04-CR-00080(1)), Cummins was ordered to pay Mr. Lloyd D. Gaines, Jr. $6,877.23 to cover the cost of medical expenses and loss of personal property taken during the commission of the crime. Defendant Cummins is jointly and severally liable for the restitution amounts. Defendant Cummins' co-defendants have not resolved their cases, and as such, Mr. Gaines is currently responsible for the full restitution amount. Court records indicate that Defendant Cummins currently owes Mr. Gaines $6,097.09 in restitution.
(11) For the crime of Assault in the Second [sic] Degree (Indictment No. 04-CR-00094(1)), Defendant Cummins was ordered to pay Mr. Joshua Hulker any cost for medical treatment related to his injuries.
(12) This Court's Division 1, June 29, 2006 Order of Probation omitted the probationary condition of restitution payment to Mr. Hulker. As a result, this Court entered its Order Correcting Order of Probation, Sua Sponte on July 21, 2006. That Order clarified that "as a condition of probation, the Defendant be jointly and severally liable, along with his co-defendant to make restitution to the victim in Indictment No. 04-CR-00094-001, Joshua Hulker, to cover the costs of medical expenses disallowed by the Crime Victims Compensation Board.
(13) Defendant Cummins was ordered to pay restitution for the two victims at a rate of $500 [sic] per month. Defendant Cummins failed to make the scheduled payments and Mr. Hulker only received $550 from Defendant Cummins.
(14) The Commonwealth moved on December 1, 2006 for revocation of Defendant Cummins' probation as a result of his failure to make proper restitution payments as ordered by this Court. The Court denied the motion for revocation, but ordered that the Defendant pay Mr. Hulker $300 immediately in order to facilitate payment for a surgery necessitated by his violence. At that time, the Court also ordered that restitution be commenced
immediately and that Defendant Cummins make $50 monthly payments. The Court also ordered that the restitution amount should be paid to Mr. Gaines first, and after his balance was paid, to Mr. Hulker.
(15) Following the show cause hearing, Mr. Hulker received $300 from Defendant Cummins. Defendant Cummins' last restitution payment in the amount of $100 was made in January, 2008. No further payments have been made. This motion was brought before the Court following Mr. Hulker's [sic] non-compliance.
(16) This Court makes the following findings as related to the conditions of Defendant Cummins' probation:
(a) Defendant Cummins is liable for restitution in the amount of $6,097.09 to Mr. Lloyd Gaines, Jr.
(b) Defendant Cummins is liable to Mr. Joshua Hulker for the cost of medical expenses related to his injuries sustained during the commission of his crime.
(c) Defendant Cummins' obligation to Mr. Hulker is reduced by $850 (paid by Defendant Landrum in completion of his obligation) and $25,000 (paid by the Crime Victims' Compensation Board).
(d) As of today's date, Defendant Cummins is liable for restitution in the amount of $40,727.79 to Mr. Hulker.
This Court takes notice that its previous order of $50 payments per month towards Defendant Cummins' restitution obligation will extend the obligation for an indefinite period of time and will not be effective in making his victims whole again. As such, this Court orders that Defendant Cummins shall make $500 payments per month beginning June 1, 2008 and shall continue until such time that his obligations are met. The Franklin Circuit Clerk shall distribute $250 to each Mr. Gaines and Mr. Hulker until such time as Mr. Gaines'
restitution is paid in full and then Mr. Hulker shall receive $500 payments monthly.
In addition, this Court extends Defendant Cummins' probation an additional five (5) years from this date. Should Mr. Hulker incur future medical expenses, the Commonwealth is to bring the bills to the Court's attention and the restitution amounts shall be adjusted accordingly.
Cummins' retained counsel filed a motion to alter, amend, or vacate the above order, requesting an opportunity to be heard on the amount of restitution he was legally obligated to pay and the amount of his monthly payment. Shortly thereafter, Cummins' counsel withdrew, and Cummins filed an affidavit of indigence and request for appointment of counsel. The circuit court appointed counsel to represent Cummins and allowed her time to file a memorandum. In the memorandum, Cummins argued that his due process rights were violated by the entry of the May 5, 2008, order as he was not given notice of the order or the opportunity to be heard; that his contract with the Commonwealth was violated in that the amount of restitution due was set out as $1,600.00 in the plea agreement and it did not contemplate the payment of future medical expenses; and that the circuit court lost jurisdiction to amend its judgment ten days after its entry. Specifically, Cummins argued that a trial court loses jurisdiction to amend a judgment ten days after its entry pursuant to Kentucky Rules of Civil Procedure (CR) 59.02 and that any "clarification" would have had to be made within one year to justify relief under CR 60.02.
This motion was argued before the court on August 20, 2008, when another new attorney made an appearance for Cummins, along with his appointed counsel. Cummins' new counsel addressed the language in the plea agreement concerning the $1,600.00 in restitution. He also discussed the motion to revoke the Commonwealth had filed on August 11, after which the court took Cummins into custody. This motion is not in the record, but we note that the Commonwealth stated that the basis for the motion was Cummins' failure to make payments pursuant to the court's May 5, 2008, order. The hearing on this motion was apparently scheduled for later that month, but it is not included in the videotaped record. In addition, Cummins argued that the period of conditional discharge expired two years after the entry of the judgment on June 29, 2006, meaning that the Commonwealth was too late in moving to revoke. Furthermore, Cummins noted that the plea agreement had been subject to confusion, but argued that he had complied with restitution pursuant to the terms of the plea agreement.
In its oral response, the Commonwealth argued that Cummins had never made any objection to the judgment as it was entered until that day. He did not raise any issue with the judgment during his sentencing hearing, when he appeared with his attorney and the court asked about errors or changes to be made in the presentence investigation report and judgment. The terms of the sentencing order required Cummins to make restitution for amounts not covered by the Crime Victims Compensation Board. The Commonwealth also pointed out that it had presented evidence to the court of additional expenses that were directly caused by the assault, which the court reviewed and approved. The court indicated that it did not know exactly how much Cummins was responsible for paying, but it released Cummins from custody that day. Several months later, the Commonwealth filed a written response to Cummins' motion. The response contains a lengthy recitation of facts, many of which are not otherwise contained in the certified record, including the videotaped record, or supported by any affidavit or other documentary evidence.
On April 6, 2009, the circuit court denied Cummins' motion and affirmed the May 5, 2008, order. This appeal now follows.
In our original opinion, we only addressed one of Cummins' three arguments, in which he asserted that the circuit court lacked jurisdiction to enter the May 5, 2008, order clarifying, as that order was entered nearly two years after the judgment became final. The Commonwealth argued that the circuit court had continuing jurisdiction to modify the terms of Cummins' probation pursuant to KRS 533.020. We reviewed this issue de novo because it represented a question of law. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999). In our review, we considered the situations in which a court may properly act post-conviction, including to correct a clerical error in a judgment, and reviewed the holdings in Cardwell v. Commonwealth, 12 S.W.3d 672 (Ky. 2000), and Viers v. Commonwealth, 52 S.W.3d 527 (Ky. 2001). We ultimately held:
Turning to the present case, we hold that the circuit court's entry of the order clarifying represented a correction of a judicial error as in Viers, not a clerical one. We disagree with the Commonwealth's assertion that the clerical error arose from the clerk's mistake in noting that Cummins had completed his restitution payments. On the contrary, the order clarifying created an additional penalty not addressed when the guilty plea and sentencing hearings were held. The Commonwealth's written offer and the discussion at the guilty plea hearing clearly reflect that Cummins accepted the plea based on the requirement that he pay restitution to Joshua Hulker in the amount of $1,600.00, the specific amount disallowed by the Crime Victims Compensation Board. Despite what the Commonwealth argued below and in its brief, there is nothing in the record to reflect that Cummins owed any additional restitution once he had satisfied the payment of that amount. Unsupported statements by the Commonwealth in its motion to clarify as to what allegedly took place earlier certainly do not constitute proof that any additional amounts were due. While this result may appear harsh to victim Joshua Hulker, the Commonwealth opted to make the offer as it did. Therefore, the order requiring Cummins to pay an additional $40,727.79 in restitution to Joshua Hulker constitutes reversible error, as it did not reflect the circuit court's original judgment.Cummins v. Commonwealth, 2010 WL 5018213 at *7 (2009-CA-000791-MR) (Ky. App. Dec. 10, 2010).
The Commonwealth goes on to argue that the circuit court is statutorily authorized to modify or enlarge the conditions of probation, citing KRS 533.020. While that is true, the circuit court was not permitted to increase the amount of restitution due by almost $40,000.00. As Cummins points out, KRS 533.030(3) requires that restitution be determined upon the imposition of the sentence of probation, removing the amount from a condition of probation that is subject to modification or enlargement.
We note that the circuit court previously entered an order amending the order of probation to properly reflect the correct victim and restitution details. That action did constitute the correction of a clerical error. [Footnote 2 in original.]
We shall now reconsider our holding in light of the Supreme Court's holding in Steadman, supra. In Steadman, the Supreme Court addressed the question of particular-case jurisdiction in deciding whether a defendant could seek review of the circuit court's order of restitution entered after the entry of a final judgment sentencing him to imprisonment. The Supreme Court set forth the applicable procedural facts as follows: At the sentencing hearing on May 17, the trial court indicated that it would be ordering restitution and that a hearing would be necessary to determine the proper amount. The hearing was scheduled for June 8. However, the trial court signed the final judgment on May 17 (it was entered by the clerk on May 29), and Steadman's attorney filed a notice of appeal on May 17 (it was not filed by the clerk until June 20). Neither Steadman nor his attorney objected to the trial court's ability to order restitution at the June 8 restitution hearing, after which the court entered a restitution order on June 13. A handwritten notice of appeal tendered by Steadman was filed on June 20. While the appeal was pending (the second appeal was dismissed as duplicative), Steadman filed a CR 60.02 motion to vacate the restitution order, arguing that it was based on perjured testimony and that his due process rights had been violated. A few months later, Steadman filed another CR 60.02 motion to vacate his conviction and the restitution order, citing the Commonwealth's failure to turn over exculpatory material. The circuit court denied both motions, and Steadman sought reconsideration thirteen days later. After that motion was denied, Steadman filed a notice of appeal. This Court consolidated the direct and post-conviction appeals, and ultimately affirmed the conviction and sentence, but vacated the restitution order, holding that the circuit court did not have jurisdiction because it entered the restitution order more than ten days after the final judgment had been entered. This Court dismissed the CR 60.02 appeal, holding that the notice of appeal was untimely because the motion for reconsideration had been untimely filed. Steadman, 411 S.W.3d at 718-21.
On discretionary review, the Supreme Court considered the Commonwealth's argument regarding whether the circuit court retained jurisdiction over restitution, an issue that was raised for the first time on appeal. The Steadman Court spent much of the opinion deciding whether the defendant could raise this issue for the first time on appeal as an issue of subject matter jurisdiction. The Court ultimately determined that this was a question of particular-case jurisdiction rather than subject matter jurisdiction and concluded that "the trial court had lost jurisdiction of this case, but not subject-matter jurisdiction, when it entered the restitution order more than ten days after entering the final judgment imposing the sentence." Id. at 724. In deciding this issue, the Supreme Court explored the language of Kentucky's restitution statutes, including KRS 431.200 and KRS 532.032, in conjunction with the ten-day case jurisdiction rule, and stated that in that case, "restitution was raised as part of the criminal sentence, and as such was subject to all the time limits that affect the sentence." Id. at 725. However, the Court went on to state that particular-case jurisdiction is subject to waiver. Id. at 724. The Court held that the defendant had waived his ability to raise a particular-case jurisdiction argument because he failed to object and "never gave the trial court an opportunity to resolve these issues." Id. at 726. The Court also expressed that its conclusion was "limited to facts like those presented in this case: where a defendant effectively consents to the trial court's holding the restitution hearing after entry of the final judgment or otherwise fails to object and raise the 'jurisdictional' question to the trial court." Id. at 725.
The Supreme Court also considered Steadman's separate question in his own motion for discretionary review regarding whether his CR 60.02 appeal was properly dismissed. The Supreme Court's resolution of this issue does not have any impact on the above-styled appeal, and we shall not address that portion of the opinion.
--------
Turning to the above-styled appeal, we first note that while the situations are slightly different, this difference has no impact on the application of the Supreme Court's holding in Steadman. Here, Cummins objected to the entry of the May 5, 2008, clarifying order that imposed restitution in excess of $40,000.00, not directly to the court's ability to hold a restitution order. However, both cases address the issue of restitution and whether a defendant has "effectively consent[ed]" to a trial court's retaining particular-case jurisdiction to rule on restitution more than ten days after a final judgment has been entered. We must hold that Cummins did not effectively consent to continuing jurisdiction by the circuit court in this case. Both Cummins and his co-defendant vehemently denied owing any additional restitution to Mr. Hulker, citing the terms of their respective plea agreements with the Commonwealth, and presented multiple reasons for their arguments. While Cummins certainly presented alternative arguments that his due process rights were violated due to the circuit court's failure to hold a restitution hearing and that the Commonwealth breached its contract with him pursuant to the terms of the plea agreement, Cummins, unlike Steadman, raised the ten-day jurisdictional rule and argued that this prevented the circuit court from amending the judgment in the May 5, 2008, order clarifying. Furthermore, the record reveals that much confusion existed once the judgments in Cummins' two cases had been entered, including mistakes in the judgments, the designation of restitution payments, the clerk's designation, and the number of different judges and attorneys involved in the case. Therefore, we hold that Cummins did not waive particular-case jurisdiction and that the circuit court lost the ability to enter the order clarifying and find Cummins liable for $40,727.79 in restitution to Mr. Hulker.
As we recognized in our original opinion, this result may appear harsh to the victim, Mr. Hulker, but the Commonwealth opted to make the offer as it did. And we also recognize that the Commonwealth apparently had some issues with the proof in the case as the trial resulted in a hung jury, which most likely resulted in the plea agreement that Cummins accepted.
Based upon our holding that the circuit court committed reversible error by ordering Cummins to pay additional restitution, we need not address the remaining arguments.
For the foregoing reasons, the Franklin Circuit Court's May 5, 2008, order clarifying and April 6, 2009, order denying the motion to alter, amend, or vacate are hereby reversed, and this matter is remanded with directions that the order clarifying be vacated and that the record reflect that Cummins has satisfied his restitution to Joshua Hulker.
ALL CONCUR. BRIEF FOR APPELLANT: Amy Robinson Staples
Assistant Public Advocate
Frankfort, Kentucky
REPLY BRIEF FOR APPELLANT: Timothy G. Arnold
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky