APPEALS FROM SHELBY CIRCUIT COURT HONORABLE CHARLES R. HICKMAN, JUDGE ACTION NOS. 08-CR-00144, 08-CR-00153, 08-CR-00212, & 09-CR-00166
The opinion of the court was delivered by: Lambert, Judge:
RENDERED: MARCH 15, 2013; 10:00 A.M.
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES.
Jody Wills appeals from the December 27, 2011, order
of the Shelby Circuit Court revoking her probation.*fn1
After careful review, we vacate the trial court's order and
remand for proceedings consistent with this opinion.
The underlying facts of this case are not in dispute. From September 1999 through March 2005, Wills was employed as an office manager for attorney Mark Dean (hereinafter Dean), a sole practitioner in Shelbyville, Kentucky. At that time, a large part of Dean's practice was devoted to real estate closings, and Dean maintained multiple escrow accounts. In 2001, Wills and Dean began an extra-marital affair that lasted four years. Wills was married with children, but Dean was not married. In March or April 2005, Wills ended the affair with Dean and subsequently discontinued her employment with Dean.
In 2009, lending institutions began to question irregularities with Dean's escrow accounts. An investigation revealed that there was approximately $600,000.00 missing from Dean's escrow accounts for the periods of 1999 through 2005. On November 4, 2009, Wills was indicted on multiple counts of theft by unlawful taking, theft by deception, failure to make required disposition of property, tampering with physical evidence, and fraudulent use of a credit card.
On December 23, 2009, Wills pled guilty to nine counts of theft by deception over $300.00 and failure to make a required disposition of property in Case No. 08-CR-00144; tampering with physical evidence and fraudulent use of a credit card in Case No. 09-CR-00153; nineteen counts of theft by unlawful taking over $300.00 in Case No. 09-CR-00166; and eleven counts of theft by unlawful taking over $300.00 for Case No. 09-CR-00212. In all four plea agreements, Wills agreed to pay restitution pursuant to statute.
In February 2010, Wills' sentencing and restitution hearing was conducted before Hon. Stephen Mershon, Special Judge. The Commonwealth Attorney and counsel for Wills discussed the amount of restitution and eventually arrived at a sum of $720,000.00, which presumably was the amount of money originally taken, plus interest that had accrued due to Dean obtaining a loan to replace client escrow funds. Judge Mershon sentenced Wills to a ten-year sentence with five years probated and set conditions for Wills' probation that included nine months in the Shelby County Detention Center with work release and regular, timely restitution payments.
On February 23, 2010, Judge Mershon entered a separate judgment and sentence in each of the four cases. Restitution in the amount of $720,000.00 at the rate of 12% interest was only mentioned in Case No. 09-CR-00166. The other judgments do not mention restitution. Each of the four sentencing orders waived all court costs, as Wills was found to be a poor person pursuant to Kentucky Revised Statutes (KRS) 453.190(2).
In July 2009, Wills obtained employment as an office manager with Shelbyville Physical Therapy and Spine Care Center, and she maintains that position to date. On April 8, 2010, Dean moved the circuit court to enter a civil judgment in regard to the money that Wills had been charged with taking. A judgment was awarded to Dean for $720,000.00 at a monthly rate of $16,016.00 at 5% interest.*fn2 This judgment further allowed Dean to garnish Wills' wages. On June 16, 2010, Dean issued an order of wage garnishment to Shelbyville Physical Therapy based on the civil judgment entered on April 8, 2010. Dean claimed that Wills owed him $960,960.00 at 12% interest with probable court costs of $6,000.00. In the affidavit and answer of her employer, Wills' non-exempt bi-weekly wage was reported to be $202.71. Wills' employer began to withhold $202.71 from Wills' bi-weekly paycheck until October 18, 2011. That amount was forwarded to Dean until he released the order of wage garnishment on October 3, 2011.
After Dean released his garnishment, the Commonwealth filed a motion to revoke Wills' probation on October 20, 2011. The circuit court denied the motion to revoke; however, Judge Mershon then entered an order requiring Wills to pay $600.00 per week towards her restitution obligation. The court arrived at this weekly restitution amount by ...