FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN EDWARDS, JUDGE
ACTION NO. 07-CR-000611
FOR APPELLANT: Andy Beshear Attorney General Frankfort,
Kentucky Jeanne Anderson Special Assistant Attorney General
FOR APPELLEE: Logan N. Sims Louisville, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES.
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.
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.
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
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.
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.
began paying restitution but, according to a March 2009
supervision report, he was not paying the full amount of $200
due each month.
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.
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."
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
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
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
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."
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.
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. 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.
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.
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
Commonwealth filed a motion to reconsider which the circuit
court denied after a hearing.
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 ...