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Barnes v. Commonwealth

Court of Appeals of Kentucky

April 5, 2019

LORENZO BARNES APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 11-CR-00711-1

          BRIEFS FOR APPELLANT: Miranda J. Hellman Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky

          BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES.

          OPINION

          NICKELL, JUDGE

         Lorenzo Barnes challenges an order entered by the Fayette Circuit Court on March 7, 2018. That order granted in part and denied in part, his motion for return of $6, 719 in cash and a 1999 Chevrolet Tahoe seized from him during his arrest on a drug charge. Without the Commonwealth ever seeking forfeiture of the property-a fact admitted by the Commonwealth-and without a forfeiture hearing ever being convened, the trial court granted the Commonwealth's request to retain the property for application to a restitution order entered in a separate Fayette Circuit Court criminal case by another Division. Our review of the record, briefs and law mandates reversal for entry of an order returning the subject property to Barnes.

         FACTS AND PROCEDURAL BACKGROUND

         Barnes was arrested by Kentucky State Police on April 21, 2011, on what would become Fayette Circuit Court Case No. 11-CR-00711-1-a case assigned to Division Eight. A jury convicted Barnes of first-degree trafficking in a controlled substance, tampering with physical evidence, and being a second-degree persistent felony offender (PFO II), for which Barnes was sentenced to serve twenty years on August 29, 2012.[1] The Commonwealth never pursued a forfeiture proceeding for the seized property, but still retains the property.

         While free on bond and awaiting trial on the first indictment, Barnes was arrested and indicted on what would become Fayette Circuit Court Case No. 12-CR-00486-a case assigned to Division Nine. Barnes entered a conditional guilty plea to second-degree assault under extreme emotional disturbance- amended from second-degree assault-and being a PFO II. The Commonwealth recommended a sentence of one year enhanced to seven years by virtue of Barnes' PFO II status, with restitution "to be determined." Ultimately, a second charge of fourth-degree assault was dismissed, the Commonwealth's recommended sentence was imposed, and Barnes was ordered to pay $8, 429.62 in restitution "through the Fayette Circuit Court Clerk's Office."

         Barnes appealed the second conviction, [2] challenging the running of sentences in Case Nos. 11-CR-00711-1 and 12-CR-00486 consecutively, and restitution being ordered paid to the clerk's office. A separate panel of this Court affirmed consecutive sentencing but reversed and remanded the restitution order for further findings. On remand, Division Nine supposedly ordered Barnes to pay $8, 429.62 in restitution in monthly $50 increments, but no such order appears in the certified record of this appeal.

         This appeal pertains to two separate indictments but is brought only in Case No. 11-CR-00711-1. Little documentation of Case No. 12-CR-00486 is in the appellate record certified to this Court. Importantly, we have no order of restitution from any case. We also have no hearings from Case No. 12-CR-00486 at which restitution may have been discussed, but we do have a verbal account of a hearing on April 26, 2016, in Case No. 12-CR-00486 at which Barnes supposedly acknowledged owing restitution to an assault victim for medical bills. In a footnote, Barnes' brief states:

[t]he restitution order was entered on May 10, 2018, after the hearing on Mr. Barnes [sic] motion to return his property, which included the terms of which Mr. Barnes was to make payments, $50.00 per month until the restitution amount was satisfied.

(Emphasis added). No order entered on May 10, 2018, in Case No. 12-CR-00486 is in the record of Case No. 11-CR-00711-1. The designation of record filed on Barnes' behalf does not mention documents or recordings from the Division Nine case. The Commonwealth did not file a separate designation of record.

         While neither party introduced an order of restitution, the record does contain two electronically signed orders in Case No. 12-CR-00486-1. Both were submitted by Barnes as exhibits to his reply in support of a supplement to his motion for release and ...


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