ARGIE L. DALE APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT HONORABLE
AUDRA J. ECKERLE, JUDGE ACTION NO. 17-XX-000028
FOR APPELLANT: Yvette DeLaGuardia Assistant Appellate
Defender Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky,
Michael J. O'Connell Jefferson County Attorney, David A.
Sexton Assistant Jefferson County Attorney Louisville,
BEFORE: GOODWINE, NICKELL, AND SPALDING, JUDGES.
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.
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
304.39-080. Dale was never charged with any crimes resulting
from the accident.
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.
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.
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."
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.
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).
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
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.