FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 11-CR-00711-1
FOR APPELLANT: Miranda J. Hellman Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES.
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.
AND PROCEDURAL BACKGROUND
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. The Commonwealth never pursued a
forfeiture proceeding for the seized property, but still
retains the property.
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
appealed the second conviction,  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.
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
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 ...