Fields v. Com.

• Decision Date: 14 November 2003
• Docket Number: No. 2002-CA-001565-MR.,2002-CA-001565-MR.
• Citation: 123 S.W.3d 914
• Parties: James Carter FIELDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

123 S.W.3d 914

James Carter FIELDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-CA-001565-MR.

Court of Appeals of Kentucky.

November 14, 2003.

As Modified November 26, 2003.

Lisa Clare, Assistant Public Advocate, Frankfort, KY, for appellant.

Albert B. Chandler III, Attorney General of Kentucky, J. Gary Bale, Assistant Attorney General, Frankfort, KY, for appellee.

Before EMBERTON, Chief Judge; JOHNSON and KNOPF, Judges.

OPINION

KNOPF, Judge.

After store hours one day in July 2001, James Fields unlawfully entered the premises of his employer, Owens Auto Parts in Corbin, and stole various items including a handgun, merchandise, and tools. A Whitley County grand jury eventually indicted him for first-degree burglary and theft. In May 2002, Fields pled guilty to the amended charges of third-degree burglary¹ and receiving stolen property,² in this case both class-D felonies. In accordance with the plea agreement, the Whitley Circuit Court, by amended judgment entered July 10, 2002, sentenced Fields to consecutive prison terms totaling four years. The court also ordered Fields to pay nearly $140,000.00 in restitution to Owens Auto Parts and to several Owens employees whose tools Fields allegedly took. Fields contends that the restitution is excessive and that the trial court erred by denying him a meaningful opportunity to challenge the amount of the losses Owens and its employees claimed. Because we agree with Fields that the trial court failed to justify its restitution award, we vacate that portion of Fields's sentence and remand for additional proceedings.

Prior to accepting Fields's guilty plea, the trial court summarized the agreement as follows:

The Court: ... [T]he Commonwealth agrees to a two year sentence on Count One and a two year sentence on Count Two to run consecutive for a four year sentence. Upon release you will make restitution to Owens Auto Parts....

Mr. Fields: Yes, sir.

....

The Court: How much restitution would it be?

Mr. Trimble [the Commonwealth's Attorney]: Your Honor, we are going to supply a list. I don't have it with me.

The Court: Alright.

Mr. Trimble: Some tools and various items.

Apparently the Commonwealth did not supply the list of alleged losses until shortly before Fields's sentencing. Whatever list it did eventually supply was not made a part of the record. Fields maintains that the list took him by surprise. Not only was the total claim far in excess of what he had expected, but the list included Owens-employee claims, several of them for tens of thousands of dollars, which had never before been mentioned. At the sentencing hearing Fields objected to restitution in the claimed amount and requested that he be given an opportunity to cross examine the claiming employees. The court denied this request. A trial on damages, the court opined, would defeat the purpose of Fields's guilty plea. And, according to the court, it would be of little value. As the court explained, "I don't generally believe a thief over a mechanic that's working there and says my tools were taken... and they were valued at $20,000.00." Although the court did order the Commonwealth's Attorney to have the employees verify their claims in some manner, no such verifications appear in the record. Otherwise, the court simply rebuffed Fields's attempt to challenge the alleged claims of loss.

Fields objects on several grounds to the sentencing procedure that resulted in his $140,000.00 restitution obligation. He first contends that the trial court denied him the process due under the statutes providing for criminal restitution. The older of those statutes, KRS 431.200, provides for restitution in cases of "taking, injuring, or destroying property," and states that if the person convicted of such a crime

consents to the restitution or to reparation in damages in an agreed sum, the court shall give judgment accordingly. Otherwise a jury shall be impaneled to try the facts and ascertain the amount and the value of the property, or assess the damage, as the case may be.

Fields contends that under this statute he was entitled to have a jury hear the claims against him for restitution.

The Commonwealth insists, however, that in seeking restitution it was not proceeding under KRS 431.200, which provides a restitution proceeding apart from sentencing, but rather under the more recent KRS 532.032. That statute, first enacted in 1998, provides that

[r]estitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563, 532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition.

The mandate of this statute applies regardless of whether the convicted defendant is to be incarcerated or conditionally released.³ We agree with the Commonwealth that under this statute restitution must now be considered during sentencing in all appropriate cases, and therefore that the General Assembly contemplated ordinary sentencing procedures as the foundation for restitutionary sentences, not the jury procedure referred to in KRS 431.200. In the cases where KRS 431.200 applies, that statute continues to provide an alternative procedure for a post-sentencing restitution order, but KRS 532.032 (and the statutes incorporated therein) is now the generally applicable criminal restitution statute.

Even if KRS 431.200 does not apply, however, Fields insists that he was entitled to a less summary sentencing procedure than the trial court provided. We agree.

The process due at sentencing is less, of course, than that due at the culpability trial, notwithstanding the sentencing court's need for and use of additional information and the significance of its decisions.⁴ The due-process clauses of the federal constitution require that sentences not be imposed on the basis of material misinformation,⁵ and that facts relied on by the sentencing court "have some minimal indicium of reliability beyond mere allegation."⁶ Specific procedures, however, such as discovery, cross-examination of adverse witnesses, and fact-finding by a jury, as are required at trial, "are simply not constitutionally mandated."⁷

In addition to this constitutional guarantee that sentencing decisions will be based on facts with some minimal assurance of reliability, KRS 532.050 and RCr 11.02 provide that the court should ordinarily not impose sentence before having considered a presentence investigation report (psi) by a probation officer. As our Supreme Court has recently noted, both the statute and the rule require that the defendant be given notice...