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Dale v. Commonwealth

Court of Appeals of Kentucky

September 6, 2019



          BRIEFS FOR APPELLANT: Yvette DeLaGuardia Assistant Appellate Defender Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Michael J. O'Connell Jefferson County Attorney, David A. Sexton Assistant Jefferson County Attorney Louisville, Kentucky



          GOODWINE, JUDGE:

         Argie L. Dale ("Dale") entered a conditional guilty plea in the Jefferson District Court for failure to maintain required insurance in connection with a car accident. The Commonwealth sought restitution on behalf of the estate of a motorist who died from injuries sustained in the accident, and the district court ordered Dale to pay restitution following a separate hearing. Dale appealed, and the Jefferson Circuit Court affirmed the district court's restitution order. After careful review of the record, we reverse and remand.


         On December 13, 2015, Dale and the victim, Robin Whitaker ("Whitaker"), were involved in a car accident. Dale's vehicle collided with a motorcycle operated by Whitaker, and Whitaker died from the injuries sustained in the collision. When police arrived at the scene, Dale was cited for operating a motor vehicle with expired registration and failure to maintain insurance, first offense under KRS[1] 304.39-080. Dale was never charged with any crimes resulting from the accident.

         On July 29, 2016, Dale pleaded guilty to failure to maintain insurance, first offense in the Jefferson District Court. The expired registration charge was dismissed, and the district court sentenced Dale to 90 days in custody, which was conditionally discharged for two years, and imposed a $1, 000 fine for the failure to maintain insurance charge under KRS 304.99-060. The district court also ordered Dale to pay $145.00 in court costs and informed the parties that it was continuing the case for a restitution hearing.

         Months after the plea, but before the restitution hearing, the Commonwealth informed Dale it sought restitution of approximately $23, 200 for the value of motorcycle, funeral expenses, and other unspecified expenses. On April 20, 2017, the district court held a restitution hearing. At the beginning of the hearing, the Commonwealth indicated it sought restitution for loss of future income, in addition to funeral expenses and the value of the motorcycle.

         Before the district court heard evidence regarding restitution, an attorney representing Whitaker's estate in a civil action in the Jefferson Circuit Court appeared to inform the district court the civil action had been stayed because Dale filed for bankruptcy. The attorney indicated that "a restitution order isn't dischargeable [in bankruptcy], so it's a method by which the estate can recover some."

         Following the bankruptcy discussion, the district court heard testimony regarding the amount and nature of restitution sought. The Commonwealth's only witness was Ms. Moore, Whitaker's mother and the administratrix of his estate. Through Ms. Moore, the Commonwealth entered into evidence the certificate of registration and the bank note on the motorcycle. Dale pointed out that the debt owed on the motorcycle exceeded its recorded value. The Commonwealth also introduced Whitaker's unfiled 2015 W-2 through Ms. Moore, to establish that Whitaker's income over the next four years would exceed $100, 000, which is the maximum amount of restitution permitted under KRS 533.030(3). Dale argued the tax document was not a "true and accurate reflection of [Whitaker's] income" because Whitaker's 2015 tax return had not been filed with the federal government. Dale also argued that the Commonwealth failed to meet its burden of proving Whitaker would have lived another four years, had he not died in the accident.

         The district court: (1) ordered Dale to pay $5, 567 "to the prosecuting witness through the means of the estate" for the value of the motorcycle; (2) took judicial notice that Whitaker would have lived at least four more years; and (3) found Whitaker's income would have exceeded $120, 000 over the next four years. We note the district court heard no evidence regarding funeral expenses. The district court ordered Dale to pay the statutory maximum of $100, 000 in restitution, as an express condition of Dale's conditional discharge under KRS 533.030(3).

         Dale appealed to the Jefferson Circuit Court, arguing the district court abused its discretion in ordering restitution be paid to Whitaker's estate for the loss of future income because any loss of future income was not a "direct result of the crime" of failure to maintain insurance. Dale also argued the restitution hearing violated his right to due process. Following oral argument, the circuit court affirmed the judgment of the district court. This appeal followed.

         On appeal, Dale argues the trial court improperly ordered him to pay restitution to Whitaker's estate for expenses arising out of the car accident. His argument contains three sub arguments: (1) his plea agreement did not include agreement to pay any amount of restitution; (2) his right to due process was violated; and (3) KRS 304.99-060 does not provide for the imposition of restitution and the Commonwealth failed to prove the expenses sought in restitution arose as a direct result of the crime for which he was convicted.

         STANDARD ...

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