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Commonwealth v. Adams

Court of Appeals of Kentucky

November 30, 2018

COMMONWEALTH OF KENTUCKY APPELLANT
v.
KWAME T. ADAMS APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN EDWARDS, JUDGE ACTION NO. 07-CR-000611

          BRIEFS FOR APPELLANT: Andy Beshear Attorney General Frankfort, Kentucky Jeanne Anderson Special Assistant Attorney General Louisville, Kentucky.

          BRIEF FOR APPELLEE: Logan N. Sims Louisville, Kentucky.

          BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES.

          OPINION

          THOMPSON, JUDGE:

         The Commonwealth appeals from the Jefferson Circuit Court's order remanding the Commonwealth's motion to revoke probation for failing to pay restitution on the basis that Kwame T. Adams satisfied his sentence by completing his five-year term of probation.

         The Commonwealth argues that pursuant to the terms of Adams's plea agreement, he agreed to pay $218, 000 in restitution. While it admits that the judgment did not include a requirement that Adams pay restitution, it argues that Adams's probation was properly extended while the circuit court had jurisdiction pursuant to Kentucky Revised Statutes (KRS) 533.020(4) on the condition that his probation continue until his restitution was paid. The Commonwealth also argues that Adams waived any right to challenge his extended probation where he agreed to the extension so that his probation would not be revoked.

         In 2007, Adams was indicted for criminal syndication, engaging in organized crime; theft by deception over $300; and fifty-five counts of criminal possession of a forged instrument, in the second degree. Pursuant to a plea agreement Adams signed on July 17, 2007, Adams pled guilty to these charges. It was explicitly stated in the plea agreement "[d]efendant agrees to joint and several responsibility for approximately $219, 000 in restitution due area banks."

         On October 1, 2007, Adams's judgment of conviction and sentence was entered. He was sentenced to ten years for criminal syndication, five years for theft by deception and five years for the fifty-five counts of criminal possession of a forged instrument in the second decree, with all counts to run concurrently for a total of ten years. Adams was placed on probation for five years subject to his compliance with enumerated conditions. None of the conditions involved paying restitution. The judgment concluded that upon completion of his probation, Adams would be discharged.

         On October 24, 2007, the Commonwealth filed a restitution schedule (the 2007 restitution schedule). This was not an order and not signed by a judge. This form indicated Adams was to have five years of probation and his restitution ordered was $143, 360.32 plus 12% per annum interest. He was to pay $200 monthly until paid, with the first payment due on December 14, 2007, paid through the Jefferson Circuit Court Clerk to fourteen recipients.

         Adams began paying restitution but, according to a March 2009 supervision report, he was not paying the full amount of $200 due each month.

         In March 2010, the Commonwealth moved to revoke Adams's probation based upon a supervision report that Adams failed to pay court ordered fees, failed to report and absconded from probation supervision.

         In an order entered on November 8, 2010 (the 2010 order), the circuit court ordered Adams remain on probation, ordered him to comply with previously ordered conditions of probation, ordered him to serve 120 days and ordered "[t]he defendant's probation shall be extended until all restitution is paid."

         On November 17, 2010, the Commonwealth filed another restitution schedule (the 2010 restitution schedule) stating that Adams had restitution ordered of $1, 146.76 and 5% per annum interest at a rate of $50.00 monthly to the Kentucky State Treasurer through the Jefferson Circuit Court Clerk, apparently for probation supervision fees. The circuit court never signed, adopted or ordered Adams to comply with this restitution schedule.

         In September 2012, the Commonwealth moved to have Adams's probation revoked based on a supervision report, which stated that Adams was sentenced to pay restitution in the amount of $156, 223.07 and had violated his probation by being $143, 886.07 in arrears on his restitution, having only paid $12, 335.00 toward his restitution since being placed on probation in 2007.[1]

         At the November 29, 2012 hearing held on this motion, Adams explained he was finishing a program to become a commercial truck driver and could not pay his restitution and tuition and requested that his obligation be suspended for ninety days, by which time he anticipated he would have completed the program and begin working. The Commonwealth stated that under these circumstances, it would not seek revocation but requested the circuit court make it an explicit condition that Adams remain on probation until his restitution obligation was paid. The circuit court instructed Adams in accordance with this request and Adams stated that he understood.

         In its written order, issued the same day (the 2012 order), the circuit court ordered that the Commonwealth's motion to revoke probation be remanded and it was further ordered that "[Adams's] restitution in the amount of $200 per month shall be suspended for the next 90 days. [Adams] shall resume paying restitution after the 90 days and shall remain on probation until all restitution is paid in full."

         In March 2013, the Commonwealth moved to have Adams's probation revoked based on a supervision report stating that Adams had a new felony arrest in Kansas and had left the state without permission. Its motion was repeatedly continued to await the outcome of his Kansas charge. On July 15, 2015, the circuit court ordered Adams remain on probation.

         In March 2016, the Commonwealth filed a motion to revoke Adams's probation based on a supervision report stating that Adams failed to make restitution as directed based on the 2010 order that he pay restitution in the amount of $1, 146.76 at a monthly rate of $50 and owed a balance of $746.26.[2] In January 2017, the Commonwealth filed another motion to revoke Adam's probation based on a supervision report stating that Adams had a balance of $141, 013.26 on his restitution.

         At the hearing held on February 14, 2017, Adams, relying on Rollins v. Commonwealth, 294 S.W.3d 463 (Ky.App. 2009), moved that the motion be remanded and his probation be terminated as his judgment had not contained the requirement that he pay restitution and he had served out his probation.

         On February 16, 2017, an order remanding was entered. The body of the order states in full as follows:

This matter came before this Court on February 14, 2017 on the Commonwealth's Motion to Revoke probation due to failure to pay restitution. The Defendant through counsel objected to that motion and asked that the Court remand the Commonwealth's Motion, arguing that the Court lacked jurisdiction due to the Defendant's probationary period having expired. Upon careful review of the record in this matter, the court must agree with the Defendant. The Judgment of Conviction in this matter was entered on September 27, 2007 and expressly states that the period of the Defendant's probation shall be 5 years. The Judgment does not mention restitution nor is there any language authorizing an extension of the probationary period. Accordingly, the Court must GRANT the Defendant's Motion to Remand the Commonwealth's Motion and the record shall reflect that the Defendant has now satisfied service of his sentence in this matter and that this matter be remanded from the Court's docket.

         The Commonwealth filed a motion to reconsider which the circuit court denied after a hearing.

         Three statutes are applicable to our inquiry as to whether Adams could properly be ordered to pay restitution in the 2010 and 2012 orders continuing him on probation, and whether they were sufficient to continue his probation beyond his ...


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