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Mitchell v. Commonwealth

Court of Appeals of Kentucky

December 22, 2017

SHANNQUAN MITCHELL APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE APRIL J. SHUNNARAH APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NOS. 16-CR-000401-002, 16-CR-000401-003

          BRIEFS FOR APPELLANT, SHANNQUAN MITCHELL: Joshua R. Hartman Louisville, Kentucky

          BRIEFS FOR APPELLANT, APRIL J. SHUNNARAH: Cassandra F. Kennedy Louisville, Kentucky

          BRIEFS FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky

          BEFORE: CLAYTON, J. LAMBERT AND THOMPSON, JUDGES.

          OPINION

          THOMPSON, JUDGE

         Shannquan Mitchell and April Shunnarah appeal from separate judgments of sentence and conviction incorporating orders of restitution entered after they pled guilty to facilitation of burglary, second degree, and facilitation of receiving stolen property over $500, both Class A misdemeanors, for a recommended sentence of twelve months on both charges. Because their appeals arise from the same facts and they present identical issues, this Court consolidated their appeals.

         Mitchell and Shunnarah present the following issues: (1) whether there was substantial evidence of the value of the items stolen; (2) whether their due process rights were violated because the restitution order required payment of restitution for items that were not claimed by the victim to be stolen prior to the restitution hearing; (3) whether the trial court erroneously added sales tax to the restitution amount; (4) whether the trial court erred when it ordered them to pay twelve percent post-judgment interest; and (5) whether the trial court erred when it imposed a $500 fine on each of them after they were found to be indigent. Although we conclude Mitchell and Shunnarah were afforded due process, we agree with their remaining contentions.

         On May 28, 2014, Mitchell and Shunnarah, along with Kenneth Aldridge, burglarized the home of Theresa Abney. As part of their agreements to enter guilty pleas, Mitchell and Shunnarah agreed to "pay any and all restitution owed" to Abney. The amount of restitution was to be set at a later hearing.

         Prior to the restitution hearing, the Commonwealth tendered an incident/investigative report which was admitted as an exhibit at the restitution hearing. The items identified in that report for which restitution was sought were televisions and ten items of jewelry with a total value of $3, 021.

         After the Commonwealth informed the court that Aldridge agreed the amount of restitution owed was $3, 021 and to be jointly and severally liable, the hearing proceeded. The sole witness was Abney.

         Abney testified that stolen televisions were recovered but one was damaged. The estimated repair value for the damaged television was $650 and the replacement value was $400. Abney testified that she obtained the value of the missing jewelry listed from researching their value on Amazon.com and that she determined the value by using the median prices for the items. The $250 difference between the repair cost and the replacement value of the damaged television was deducted from the restitution sought for a total of $2, 771.

         The Commonwealth then asked Abney if there were "other items that you have since recalled that you didn't actually include in that original list that you lost in the burglary?" Mitchell's counsel objected to questions concerning items not included on the list of items tendered by the Commonwealth on the basis that no notice was given that those items would be claimed. The trial court ruled that she could testify as to additional missing items and their value. Abney again based the value of the missing items on the medium prices available on Amazon and, when added to the prior amount, the total restitution sought was $3, 686.

         After direct and cross-examination of Abney was complete, Mitchell's counsel indicated he may need time to investigate regarding the items not on the list. The trial court ruled that additional time would be afforded but that Abney would be permitted to add any additional items found missing from the home. Fearing that Abney would add items and increase the amount of restitution, counsel declined the trial court's offer of additional time to investigate.

         Following arguments by counsel, the trial court ordered Mitchell and Shunnarah to pay $3, 686 in restitution plus $229 in sales tax. Additionally, the trial court assessed twelve percent interest on the total amount of restitution owed. The restitution order was incorporated into the final judgments of ...


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