Opinion
NO. 2017-CA-000497-MR
03-16-2018
JEREMY PIPER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 14-CR-00020 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Jeremy Piper appeals the Butler Circuit Court's order stating that he can purge himself of contempt by paying the previously-ordered-restitution amount of $262.50 per month. After a careful review of the record, we affirm because Piper was properly held in contempt and the remedy for the contempt was appropriate.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jeremy Piper was indicted on two counts of theft by unlawful taking over $500.00. The Commonwealth provided him an offer on a plea of guilty, in which it offered to recommend that Piper's sentences be served concurrently with each other, for a total of one year of imprisonment, in exchange for Piper's guilty pleas to both counts. The offer on a plea of guilty further provided that the offer was conditioned on Piper paying "full restitution to all victims for the total amount of losses incurred by the victims as a result of this crime. Amount of restitution shall be determined by the court and entered into [the] court record with an order of restitution. Payments of restitution shall be directed by the court as set forth in [the] restitution order." Piper accepted the Commonwealth's offer on a plea of guilty.
Piper moved to enter a guilty plea in accord with the plea agreement. The circuit court accepted Piper's guilty plea and entered an order sentencing him to: (1) one year of imprisonment for each of the two counts of theft by unlawful taking, $500.00 or more but under $10,000.00, to be served concurrently for a total of one year in custody; (2) restitution in the amount to be subsequently determined in the restitution order; and (3) payments to Butler County to reimburse it for his costs of incarceration, including all medical costs expended on Piper's behalf by the County.
The restitution order that was subsequently entered provided that Piper "shall pay restitution in the amount of $11,708.59 to Warren Rural Electric Co-op." It also stated that "the Butler County Circuit Clerk shall assess an additional fee of 5% to the total amount of restitution ordered herein." The restitution order specified that "[t]he amount of each payment shall be $262.50; of which, $250.00 shall be applied toward restitution owed to the victim and $12.50 shall be applied toward the 5% fee assessed by the clerk. . . ." It required Piper to "make the first payment not more than sixty (60) days after release from custody. Defendant shall notify his attorney of his release within 10 days." The restitution order also stated that Piper
shall make payments in the same amount on or before the 1st of each month until all restitution is paid in full. . . . Failure to comply with this order will result in a finding of contempt. . . . Failure by the Defendant to make payments as set forth above shall result in an increase of the total amount of restitution owed to $18,251.61.
Piper moved for shock probation. However, he later moved through counsel to rescind his motion for shock probation. The motion to rescind stated that defense counsel was attaching to the motion "a copy of the facsimile received from Defendant requesting this motion." The facsimile to which the motion referred was a letter from Piper to his attorney stating that he is "droping [sic] my motion and seveing [sic] out my one[-]year sentence, that is what I am wanting to do. I have enough time in rite [sic] now to have severd [sic] it out and that does away with my restitution as well." The letter continues, with Piper explaining that he "went to Louisville for shock and made it, on the condition [that] I drop my motion in Butler Co[unty] and seve [sic] that one year out." The circuit court ultimately granted Piper's motion to rescind his motion for shock probation.
In his opening brief on appeal, Piper mistakenly refers to "a motion to rescind shock probation" and "rescinding shock probation." However, it does not appear that Piper was ever granted shock probation in the case before us. Rather, he moved to rescind his motion for shock probation in this case and, according to the documents he filed in the circuit court, he was granted shock probation in a different case that is not presently before us.
On page 2 of Piper's opening brief on appeal, he mistakenly states that the circuit court "granted his motion to rescind restitution." This is incorrect. Instead, the circuit court granted his motion to rescind his motion for shock probation.
More than one year later, the Commonwealth moved to hold Piper in contempt of the court's restitution order. The motion stated that the restitution order had been entered April 14, 2015, yet as of August 18, 2016 (i.e., sixteen months later), Piper had "made only three payments of $255 each, with no payments since September 2015." Additionally, the motion noted that Piper had been ordered to pay $262.50 each month. Therefore, even the three payments he made were less than required for those three months.
In his response to the motion to hold him in contempt, Piper alleged that the trial court no longer had jurisdiction over him because he had served out his prison sentence that was imposed by the sentencing order. He further argued that because he had served out his sentence, any more jail time that the court might impose would result in a greater sentence than the one imposed in the original judgment.
The circuit court granted the Commonwealth's motion to hold Piper in contempt. The court reasoned that the plea agreement between the parties stated:
Pay full restitution to all victims for the total amount of losses incurred by the victims as a result of this crime. Amount of restitution shall be determined by the court and entered into court record with an order of restitution. Payments of restitution shall be directed by the court as set forth in restitution order.The court noted that its sentencing order required Piper
to pay restitution in an amount to be determined. . . . At the Restitution Hearing the parties reached an agreement concerning the amount and terms of restitution and stated them on the record. A Restitution Order was entered on April 14, 2015. This Order required the Defendant to pay $262.50 monthly until the total of $11,708.59 plus 5% clerk's fee was paid in full. These payments were to begin no later than sixty days from release from custody. The Order also stated that failure by the Defendant to make these payments would result in an increase in the total amount owed to $18,251.61. The Order states that failure to comply with the conditions would result in a finding of contempt and that the Defendant shall not be removed from probation or pre-trial diversion supervision until all restitution is paid in full.
The circuit court also noted that Piper "was released from custody on April 29, 2015, after serving his full sentence in county/regional jails. The Defendant made monthly payments of $255.00 in July, August and September of 2015. He has made no payments since."
In its analysis, the circuit court found Commonwealth v. O'Bryan, 97 S.W.3d 454, 456-57 (Ky. App. 2003), involved facts similar to Piper's case. The circuit court noted that in O'Bryan, this Court held that KRS 532.032(1) "requires the trial court to order payment of restitution to the named victim even if imprisonment is also ordered." O'Bryan, 97 S.W.3d at 457. The circuit court further quoted KRS 532.358, which we will discuss infra, before holding that Piper was required to pay restitution pursuant to both statutory and case law. Piper was then found to be in contempt. The court ordered that a hearing would be held subsequently to determine Piper's punishment.
Kentucky Revised Statute. --------
Following the contempt hearing, the circuit court entered an order stating that Piper "can purge himself of contempt by paying Two Hundred Sixty-Two Dollars & Fifty Cents ($262.50) per month, beginning January 15, 2017, and the 15th day of each month thereafter until paid in full." Piper now appeals, contending that the circuit court erred in holding him in contempt.
II. ANALYSIS
"We review the trial court's exercise of its contempt powers for abuse of discretion, but we apply the clear error standard to the underlying findings of fact." Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011) (citations omitted).
Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court. Contempts
are either civil or criminal. Civil contempt consists of the failure of one to do something under order of court, generally for the benefit of a party litigant. Examples are the willful failure to pay child support as ordered, or to testify as ordered. While one may be sentenced to jail for civil contempt, it is said that the contemptuous one carries the keys to the jail in his pocket, because he is entitled to immediate release upon his obedience to the court's order.Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) (internal quotation marks and citations omitted).
Criminal contempt is conduct which amounts to an obstruction of justice, and which tends to bring the court into disrepute. It is not the fact of punishment but rather its character and purpose, that often serve to distinguish civil from criminal contempt. If the court's purpose is to punish, the sanction is criminal contempt.
In the present case, Piper "carries the keys to the jail in his pocket," Burge, 947 S.W.2d at 808, because he can purge himself of the contempt simply by obeying the court's order directing him to pay restitution. Therefore, Piper's contempt is a civil contempt.
In a civil contempt proceeding, the initial burden is on the party seeking sanctions to show by clear and convincing evidence that the alleged contemnor has violated a valid court order. If the party is seeking compensation, it must also prove the amount. Once the moving party makes out a prima facie case, a presumption of contempt arises, and the burden of production shifts to the alleged contemnor to show, clearly and convincingly, that he or she was unable to comply with the court's order or was, for some other reason, justified in not complying. This burden is a heavy one and is not satisfied by mere assertions of
inability. The alleged contemnor must offer evidence tending to show clearly that he or she made all reasonable efforts to comply. If the alleged contemnor makes a sufficient showing, then the presumption of contempt dissolves and the trial court must make its determination from the totality of the evidence, with the ultimate burden of persuasion on the movant.Ivy, 353 S.W.3d at 332 (citations omitted).
In the present case, the Commonwealth produced a ledger that listed the three restitution payments Piper had made to the Butler County Circuit Clerk, as well as the three payments that the circuit clerk made in turn to Piper's victim. The ledger reveals that Piper owed $11,708.59 plus $585.42 (for the 5% clerk's fee), and that he made payments of $255.00 in each of July 2015, August 2015, and September 2015, but he had made no payments since then. The Commonwealth had moved to hold him in contempt in August 2016, eleven months after his last payment. Thus, the Commonwealth established a prima facie case of contempt by proving by clear and convincing evidence that Piper violated the court's valid restitution order and by establishing the amount Piper owed.
The burden then shifted to Piper to show by clear and convincing evidence that he was unable to comply with the restitution order, or he was justified in not complying. See Ivy, 353 S.W.3d at 332 (citation omitted). He must offer evidence "tending to show clearly that he . . . made all reasonable efforts to comply." Id. (Citation omitted). Piper contended that the circuit court no longer had jurisdiction over him because he had served out his sentence.
During the contempt hearing, the defense acknowledged that Piper had served his prison sentence in a county jail. KRS 532.358 provides:
Any prisoner who has completed his sentence in a county or regional jail or under condition of home incarceration shall, from the day incarceration ceases and within the time and amount designated by the sentencing court, pay restitution to his victim and reimbursement for his incarceration to the state or local government and his or her home incarceration fees, in addition to any other monetary and community service sanctions imposed by the sentencing court. The sentencing court may use its contempt sanctions to enforce its orders.
The circuit court's sentencing order stated that Piper was ordered to serve one year of imprisonment, pay restitution in accord with the restitution order, and reimburse the county for his costs of incarceration. Therefore, when Piper completed his prison sentence, he completed only one part of the total sentence he was given by the circuit court. Consequently, pursuant to KRS 532.358 and the circuit court's sentencing and restitution orders, Piper was required to pay restitution upon his release from imprisonment.
Moreover, Piper's allegation that he thought he no longer had to pay restitution because he had "served out" his prison sentence is disingenuous. Piper made three payments toward his total amount of restitution owed after he was released from prison, but then he stopped making payments. If he thought he did not have to pay restitution after his release from prison, he would not have made the three partial payments that he made. Because he did not continue to make payments as required, Piper did not show that he made all reasonable efforts to comply with the circuit court's orders. Consequently, the circuit court properly held him in contempt pursuant to KRS 532.358.
We now turn to the question of whether the remedy the court fashioned for Piper's contempt was proper.
Having found a party in contempt, the court's next task is to fashion a remedy. Where . . . the contempt proceeding is civil, the sanction may serve either to coerce the contemnor to comply with a court order, to compensate a party for losses caused by the contempt, or both. Coercive sanctions, such as daily fines or incarceration, are punishments imposed until the contempt is purged by compliance with an order. For the punishment to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert the punishment or at any time bring it to an end. The contemnor bears the burden of proving his or her inability to meet the purge condition, but in imposing that burden the court should be mindful of the contemnor's overriding interest in not being required to perform an impossible act.Ivy, 353 S.W.3d at 334-35 (citations omitted).
During the contempt hearing, the court asked Piper if he could pay the monthly restitution amount of $262.50, and Piper informed the court that he could. The court also asked him when each month he would be able to pay that amount, and Piper responded that he could pay it by the 15th day of the month. The court then entered its order stating that Piper could purge himself of the contempt by paying $262.50 per month, "beginning January 15, 2017, and the 15th day of each month thereafter until paid in full." Therefore, the punishment imposed for the contempt retained its civil character because at the time the sanction was imposed, Piper acknowledged his ability to comply with the requirements for purging the contempt, and the purpose for the sanction was to coerce Piper to comply with the court's restitution order. Consequently, the remedy for Piper's contempt was proper.
Accordingly, the order of the Butler Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky