ON REVIEW FROM COURT OF APPEALS CASE NOS. 2007-CA-001264-MR AND 2008-CA-002376-MR LOGAN CIRCUIT COURT NO. 00-CR-00126
COUNSEL FOR APPELLANT/CROSS-APPELLEE: - Jack Conway Attorney General, Todd Dryden Ferguson Assistant Attorney General Office of Criminal Appeals Office of the Attorney General
COUNSEL FOR APPELLEE/CROSS-APPELLANT: Kyle Anthony Burden
This case presents two questions. First, is a trial court without general subject-matter jurisdiction, or otherwise without power, to order restitution after entering a final judgment sentencing the defendant to imprisonment, even though the defendant consented to a restitution hearing being held after the sentencing date and otherwise failed to object? The answer is no.
Second, is a CR 59.05 motion to amend, alter, or vacate an order timely filed thirteen days after the challenged order is entered where there is no evidence about when the motion was mailed? The answer is no.
In 2005, Steadman was indicted in Logan County for theft by deception over $300 and being a second-degree persistent felony offender. He represented himself at trial, albeit with stand-by counsel. On May 4, 2007, he was convicted on both charges, and the jury recommended an eight-year sentence.
On May 16, 2007, the Commonwealth filed notice that it would seek restitution at the final sentencing, which was to be held the next day. At the sentencing hearing, the trial court stated that it would order restitution and, indeed, was required by law.to do so. After hearing argument from both sides disputing the proper amount of restitution, the trial court stated that a hearing with testimony would be necessary, to which Steadman's lawyer stated, "Yes, your honor." Neither Steadman nor his lawyer objected to this. In fact, Steadman's lawyer specifically asked that the hearing not be set on a Thursday.
By separate order handwritten on the docket sheet and entered by the clerk on May 17, the court set a restitution hearing for June 8. Also on May 17, the court signed its final judgment sentencing Steadman to imprisonment for eight years. The judgment, however, was not entered by the clerk until twelve days later, on May 29.
The day the final judgment was entered, Steadman's counsel tendered a notice of appeal. The notice, however, was not filed by the clerk until June 20.
In the interim, on June 8, the trial court held the restitution hearing. At the beginning of the hearing, Steadman's lawyer stated that her understanding was that it was a continuation of the previous hearing, presumably referring to the restitution discussion on the day of sentencing. At no time during the hearing did Steadman or his lawyer object to the court's jurisdiction or power to order restitution. And at the end of the hearing, the following exchange between Steadman's counsel and the court occurred:
Counsel: Will you be issuing a final order at this time on Mr. Steadman's case?
Court: Say that again?
Counsel: Will you be issuing a final judgment on this case at this time? I believe that was an outstanding issue.
Court: We are doing a final judgment—
Counsel: Yes, your honor.
Court: —with regard to the incarceration.
Counsel: Yes, your honor.
Court: And I will do a separate order on the restitution. I think the judgment on the, the final judgment of sentence and imprisonment has already been entered.
Counsel: Okay. People have told me differently. I just wanted to make sure we have that for appellate—
Court: That is already entered.
After that exchange, Steadman asked to raise issues related to his appeal. He complained that he "had no idea" that his lawyer had filed a notice of appeal (she stated that she told him she was going to), and that he had complaints about the record to be designated on appeal. Several minutes of ...