Opinion
NO. 2017-CA-000963-MR
06-28-2019
PATRICIA M. CONNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy Alyette Durham II Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kristin Leigh Conder Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NOS. 12-CR-001308 AND 14-CR-000952 OPINION
REVERSING IN PART, AFFIRMING IN PART, AND REMANDING
** ** ** ** **
BEFORE: KRAMER, NICKELL, AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Patricia Marie Conner ("Appellant") appeals from an amended restitution order of the Jefferson Circuit Court resulting from a conditional plea of guilty to the offenses of knowing exploitation of an adult under $300.00; three counts of criminal possession of a forged instrument in the second degree; and theft by deception over $500.00. Appellant argues that the court erred in ordering her to pay restitution to Kindred Healthcare and River's Edge Nursing Home because they are not "named victims" under Kentucky law. She also maintains that the criminal possession of a forged instrument and theft by deception charges violated her right against double jeopardy. For the reasons addressed below, we REVERSE the amended restitution order as to restitution made payable to Kindred Healthcare and River's Edge Nursing Home, AFFIRM in all other respects and REMAND the matter for entry of a restitution order consistent with this opinion.
On April 24, 2012, and April 10, 2014, Jefferson County grand juries indicted Appellant on charges of knowing exploitation of an adult under $300.00; three counts of criminal possession of a forged instrument in the second degree; and theft by deception over $500.00. The charges arose from a criminal complaint alleging that between August 1, 2010, and September 1, 2011, Appellant financially exploited her mother, Anna Chenault, by taking Chenault's social security checks and pension checks and keeping them for herself. During this period, Chenault was a resident at Bashford East, a Kindred Healthcare facility. It was also alleged that Appellant took Chenault's checks which resulted in River's Edge Nursing Home not receiving payment for Chenault's care. Appellant held the power of attorney for Chenault, and kept Chenault's social security and pension checks for herself rather than using them to pay for her mother's care.
Kentucky Revised Statute ("KRS") 209.990.
Additionally, in September, 2012, Appellant possessed two State Farm insurance checks in the amounts of $1,500.00. Each check contained the forged signature of attorney Melissa Bozell. Appellant also possessed a forged check which she gave to Jonathon Toohey. Appellant gave Toohey $100.00 to deposit the check in his bank account, and then withdrew the funds and gave them to Appellant. These events resulted in the three counts of criminal possession of a forged instrument in the second degree and the charge of theft by deception over $500.00.
The indictments proceeded in Jefferson Circuit Court, whereupon Appellant entered an Alford plea on April 26, 2016. In exchange for the plea, the Commonwealth recommended a sentence of 365 days on the charge in 12-CR-001308 and five years on each charge in 14-CR-000952 to run concurrently for a total sentence of five years. As part of the plea, Appellant also agreed to pay restitution. The Commonwealth recommended that Appellant be placed on unsupervised pretrial diversion for five years or until restitution was completed, whichever was longer. Additionally, the Commonwealth agreed to dismiss two counts of criminal possession of a forged instrument, second degree, if Appellant provided proof that she paid $3,000 in restitution to State Farm.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Numerous continuances and restitution hearings followed, culminating in an amended restitution order being entered on May 2, 2017. The Court ordered Appellant to pay restitution in the following amounts: 1) $1,786.00 to Toohey; 2) $3,351.32 to River's Edge Nursing Home; and, 3) $5,251.36 to Kindred Healthcare. This appeal followed.
Appellant now argues that the Jefferson Circuit Court erred in ordering her to pay restitution in the amount of $10,388.68. She contends that restitution was imposed without following minimal due process requirements, and directs our attention to KRS 532.032 and Jones v. Commonwealth, 382 S.W.3d 22 (Ky. 2011), for the proposition that she was improperly denied reasonable notice and a hearing with the burden on the Commonwealth to establish the validity of the claim for restitution. Appellant also argues that Kindred Healthcare/Bashford East and River's Edge Nursing Home are not "named victims" under KRS 532.032, and maintains that the findings imposing restitution were not supported by substantial evidence. She seeks an opinion vacating the restitution order.
The restitution statute.
KRS 532.032(1) states,
Restitution 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.Further, restitution is "any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act." KRS 532.350(1) (emphasis added).
The first question before us is whether Kindred Healthcare and River's Edge Nursing Home are "named victims" for purposes of KRS Chapter 532. We conclude that they are not. In Blevins v. Commonwealth, 435 S.W.3d 637 (Ky. App. 2014), a panel of this Court considered whether the American Society for the Prevention of Cruelty to Animals ("ASPCA") was a compensable "named victim" under the restitution statutes. In Blevins, the defendant entered a conditional guilty plea to animal cruelty charges, and was ordered to pay restitution to the ASPCA which housed the animals after they were taken from Blevins' possession. In determining that the ASPCA was not a "named victim" under the restitution statutes, the panel stated that,
Though the legislature did not define what constitutes a victim for purposes of ordering restitution, it is clear from KRS Chapter 532 and 533 that "victim" in this context is one who is directly harmed by the criminal conduct for which the defendant has pled or been found guilty. Under the statutory scheme, this includes those
who have had their property converted, stolen or unlawfully obtained, and those who have suffered "actual" medical expenses, loss of earning power as a "direct" result of the crime, and "direct" out-of-pocket expenses. KRS 533.030.Blevins, 435 S.W.3d at 640.
. . .
This conclusion comports with federal statutory law defining a victim as "a person directly and proximately harmed as a result of the commission of an offense," 18 USCA § 3663A, and extra-jurisdictional state case law holding that a victim is one who is "directly injured ... as the result of the defendant's criminal conduct [.]" State v. Straub, 153 Idaho 882, 292 P.3d 273, 279 (2013). (Emphasis added). Additionally, we find persuasive Vaughn v. Commonwealth, 371 S.W.3d 784, 786 (Ky. App. 2012), wherein a panel of this Court determined that the Commonwealth of Kentucky, which incurred extradition costs it sought to recover through restitution, "simply was not a victim who suffered a loss as a result of criminal acts[.]"
In the matter before us, Kindred Healthcare and River's Edge Nursing Home are not "victims" for purposes of KRS Chapter 532. These entities did not have "their property converted, stolen or unlawfully obtained," nor "suffer actual medical expenses, loss of earning power as a direct result of the crime, nor direct out-of-pocket expenses." Blevins, 435 S.W.3d at 640. Rather, Appellant converted or otherwise stole checks and income from Chenault, not from the healthcare entities, and failed to utilize those funds to pay for Chenault's care on her behalf. The instant facts are somewhat analogous to those of Blevins, in that Kindred Healthcare and River's Edge Nursing Home, like the ASPCA, were each third parties who suffered non-payment for costs, but were not direct victims of the criminal acts. The Commonwealth so acknowledges this in stating that, "Appellant was not personally responsible for the charges beyond handing over Ms. Chenault's social security and pension checks to pay for her care."
We find unpersuasive the Commonwealth's contention that "since Kindred Healthcare and River's Edge are named in the restitution order, they are 'named victims' for the purposes of KRS 532.032(1)." One does not acquire "named victim" status under the restitution statutes by being granted restitution, but rather by being a direct victim who suffers pecuniary loss. While Kindred Healthcare and River's Edge were indirectly harmed by Appellant's conduct, they were not "directly harmed by the criminal conduct . . . ." Blevins, 435 S.W.3d at 640. Accordingly, we conclude that Kindred Healthcare and River's Edge Nursing Home are not "named victims" for purposes of KRS Chapter 532. We hold as moot Appellant's argument that the Commonwealth failed to establish the validity of the claim for restitution by a preponderance of the evidence.
The Commonwealth contends that Appellant's due process argument based on Jones v. Commonwealth, 382 S.W.3d 22 (Ky. 2011), is not preserved for appellate review. Having determined that Appellant's due process argument is moot, we will not address its alleged lack of preservation.
Appellant goes on to argue that the circuit court's findings as to restitution payable to Toohey were not supported by substantial evidence. At a December 12, 2016 hearing, however, Appellant agreed to pay Toohey restitution in the amount of $1,786 or a lower amount if confirmed by Toohey. Appellant contested restitution to the healthcare entities before the trial court, but did not contest restitution to Toohey. This agreement is memorialized in the video record. We discern no error.
Appellant's final argument is that the possession of a forged instrument in the second degree and theft by deception over $500 charges violated her right against double jeopardy. While acknowledging that this issue is not preserved for review, Appellant contends that it constitutes palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. In support of this argument, Appellant directs our attention to Hellard v. Commonwealth, 829 S.W.2d 427 (Ky. App. 1992), and KRS 505.020(1)(a) for the proposition that a person may not be convicted of more than one offense when one offense is included in the other. Appellant argues that the same elements are required to prove possession of a forged instrument in the second degree and theft by deception over $500, and/or that one offense is included in the other. As such, she argues that the prosecution of these charges concurrently from the same operative facts is violative of KRS Chapter 505 and her right against double jeopardy.
Appellant was charged as follows:
On or about September 30, 2013, the Defendant knowingly and unlawfully possessed a forged/counterfeit check with intent to defraud, deceive, or injure another. The Defendant paid $100 to a Mr. Jonathon Toohey to cash a forged check in the amount of $2.386.00. Mr. Toohey deposited the check in his PNC Bank account[,] withdrew the funds, and give them to the Defendant. Mr. Toohey was not aware the check was forged/counterfeit.
In Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996), the Kentucky Supreme Court acknowledged the Blockburger analysis as to claims of double jeopardy. The Burge Court noted that Blockburger required the court to determine "whether the act or transaction complained of constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of a fact the other does not." Burge, 947 S.W.2d at 811.
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). --------
When applied herein, we conclude that possession of a forged instrument in the second degree and theft by deception over $500 require proof of different elements. Theft by deception is found where a person obtains property or services of another by deception with intent to deprive the person thereof. KRS 514.040(1)(a). A person deceives when he intentionally creates a false impression, including a false impression as to value. Id. In contrast, criminal possession of a forged instrument, second degree, occurs when, with knowledge that it is forged and with intent to defraud, a person possesses any forged instrument. KRS 516.060(1). "[T]heft by deception[] contains different and additional elements than the charge of second-degree possession of a forged instrument." Caudill v. Commonwealth, 723 S.W.2d 881, 883 (Ky. App. 1986). Because the act complained of constitutes a violation of two distinct statutes with each statute requiring proof of a fact the other does not, Burge, 947 S.W.2d at 811, we find no violation of the prohibition against double jeopardy and no palpable error. RCr 10.26.
For the foregoing reasons, we REVERSE the amended restitution order as to the restitution made payable to Kindred Healthcare and River's Edge Nursing Home, AFFIRM in all other respects and REMAND the matter for entry of a restitution order consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy Alyette Durham II
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Kristin Leigh Conder
Assistant Attorney General
Frankfort, Kentucky