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Brown v. Commonwealth

Supreme Court of Kentucky

February 15, 2018



          COUNSEL FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Daryl Havey Assistant Attorney General.



         A circuit court jury convicted Anthony Brown of second-degree manslaughter for the shooting death of Demario Bennett and of being a first-degree persistent felony offender (PFO). Following these convictions, the trial court entered judgment imposing upon Brown a twenty-year prison sentence and an obligation to pay $7, 571.51 in criminal restitution. Brown now appeals from this judgment as a matter of right.[1]

         Brown first argues on appeal that the trial court erred when it imposed the criminal restitution. We agree with Brown and vacate that portion of the judgment and remand the case to the trial court with instructions to comply with the procedural due process requirements for imposing restitution as outlined in Jones v. Commonwealth.[2]

         As to Brown's remaining two issues on appeal, we affirm the judgment of conviction and sentence. In so doing, we hold that evidence of probation violations, like evidence of parole violations, can be admissible evidence in the penalty phase of a criminal trial. And we adopt the Court of Appeals' reading of KRS 532.080(8), as espoused in Boone v. Commonwealth[3], to hold that the trial court did not err when it allowed the use of Brown's prior conviction for drug possession as a qualifier for PFO enhancement.

         I. ANALYSIS.

         A. The Criminal Restitution Award Must Be Vacated and Remanded for a New Hearing.

         Brown argues that the trial court erred when it imposed upon him restitution to be paid. The trial court ordered him to pay criminal restitution, $7000 to a funeral home and $571.51 to a medical center, presumably for services rendered to or on behalf of the victim. This is only an inference because the words appearing in the final judgment are all that we know from the record concerning restitution. The Commonwealth suggests that the most likely basis might be found in the presentence investigation report, which is mentioned at sentencing. But from this record, we cannot determine a factual basis for the restitution order.

         Brown argues that he had a right to notice, a hearing, and even a separate jury trial before the trial court ordered him to pay criminal restitution. Because this issue is unpreserved by a post-judgment motion to vacate or amend the judgment and because Brown claims a procedural rather than substantive due process sentencing deficiency, we review this issue under the palpable error standard.[4]

         KRS 532.032 governs criminal restitution imposed at sentencing, while KRS 431.200, an older statute, governs another sort of post-sentencing restitution proceeding that contemplates the possibility of empaneling a jury to decide disputed restitution. The Court of Appeals in Fields v. Commonwealth distinguished these two statutes: "[U]nder [KRS 532.032] restitution must now be considered during sentencing in all appropriate cases, and therefore the General Assembly contemplated ordinary sentencing procedures as the foundation for restitutionary sentences, not the jury procedure referred to in KRS 431.2.00."[5] This Court, in Wiley v. Commonwealth, cited approvingly to the discussion of criminal restitution in Fields, stating that when a trial court imposes restitution at sentencing, "the defendant must have some meaningful opportunity to be heard and the record must establish a factual predicate for the restitution order."[6] Lastly, this court in Jones v. Commonwealth stated, "There is no doubt that restitution is a proper component of a judgment imposing a final sentence."[7]

         Taking these rules together, ' Kentucky law now imposes no requirement of a separate jury trial to determine criminal restitution. But Kentucky does require some type of minimal due process, and an appellate court will reverse as palpable error a trial court's restitution order when minimal due process is not given.[8] This Court in Jones identified four procedural due process requirements when deciding upon criminal restitution if "the issue of restitution...has not been resolved by an agreement between the Commonwealth and the defendant...."[9] The record in this case does not support a regard for minimal due process. And this is palpable error. So we vacate the restitution provisions in the judgment and remand the case to the trial court to conduct a proper hearing in conformity with Jones.

         Vacating the restitution award renders moot Brown's arguments that the funeral home and the medical center do not constitute named victims eligible for restitution under KRS 532.032(1) and that the amount of restitution violates the Eighth Amendment of the United States Constitution. We will not address those arguments, which may be presented to the trial court on rehearing.

         B. The Trial Court Did Not Err by Admitting Evidence of Cut-Off Ankle Monitor.

         Brown argues that the trial court erred when allowing, during the penalty phase of the trial, evidence that Brown cut off his ankle monitor while on probation.

         In April of 2014, a jury convicted Brown of Possession of a Handgun by a Convicted Felon, for which the trial court granted shock probation. After violating his probation, the trial court ordered Brown to wear an ankle monitor on April 9, 2015, and Brown removed the ankle monitor that same day, which is also the same day that Brown shot and killed Bennett. During the penalty phase of the trial, the Commonwealth sought to introduce that fact, to which Brown made a timely objection. The issue is preserved for our review.

         Evidentiary rulings by the trial court we review for abuse of discretion.[10]"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, ...

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