Elawyers Elawyers
Ohio| Change

SCOTT v. COMMONWEALTH, 2011-CA-001370-MR. (2012)

Court: Court of Appeals of Kentucky Number: inkyco20120720264 Visitors: 8
Filed: Jul. 20, 2012
Latest Update: Jul. 20, 2012
Summary: NOT TO BE PUBLISHED OPINION CAPERTON, Judge. James R. Scott pled guilty to one count of third degree burglary, one count of theft of controlled substances over $300, first offense, and theft by unlawful taking under $500. He received a total concurrent sentence of three years imprisonment and was ordered to pay restitution in the amount of $5,889.09, set at $250 a month upon release from custody. Scott appeals this order of restitution. After a thorough review of the parties' arguments, the r
More

NOT TO BE PUBLISHED

OPINION

CAPERTON, Judge.

James R. Scott pled guilty to one count of third degree burglary, one count of theft of controlled substances over $300, first offense, and theft by unlawful taking under $500. He received a total concurrent sentence of three years imprisonment and was ordered to pay restitution in the amount of $5,889.09, set at $250 a month upon release from custody. Scott appeals this order of restitution. After a thorough review of the parties' arguments, the record, and the applicable law, we find no error and accordingly, affirm.

A restitution hearing was held before the trial court concerning the burglary perpetrated by Scott. At the hearing, Reidland Pharmacy co-owner, Tracy Sullivan testified. Sullivan testified that $117.00 was stolen from the cash register and that the cost to repair the property damage due to the crime was $185.00.1 Sullivan further testified that the medicine stolen by Scott had a retail sale price of $5,587.09, which insurance did not cover, and which by law, could not be resold if recovered. The wholesale price for the medicine was $5,393.88. The trial court ordered restitution in the amount of $5,889.09 ($5,587.09 retail value of medicine, plus $117 cash, plus $185 damages to premises) and set the payment schedule at $250 per month once released from custody. It is from this order that Scott now appeals.

On appeal, Scott argues that: (1) the trial court erred in affixing the retail value of the medicine in the restitution order because the pharmacy was entitled only to the wholesale value of the medications; and (2) the trial court erred in affixing the restitution payment schedule at $250 per month. The Commonwealth disagrees and argues that the trial court did not err. With these arguments in mind, we turn to our applicable jurisprudence.

Restitution has been defined as compensation paid by a convicted person to a victim for property damage and other expenses sustained by that victim because of the convicted person's criminal conduct. See KRS 532.350(1). In short, restitution is merely a system designed to restore property or the value thereof to the victim. Upon ordering restitution, the trial judge is required to set the amount of restitution to be paid. KRS 532.033(3).

The purpose of restitution, as explained in Commonwealth v. Bailey, 721 S.W.2d 706, 707 (Ky. 1986), is not an "additional punishment exacted by the criminal justice system . . . . It is merely a system designed to restore property or the value thereof to the victim." In addition, according to Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002), the "trial court has the statutory authority to establish restitution and is in the best position to make the appropriate and well-informed decision in a fair and impartial manner."

Upon ordering restitution, the trial judge is required to set the amount of restitution to be paid. KRS 532.033(3). Further, the judge ordering restitution is required to monitor payment to assure that restitution is in fact paid. KRS 532.033(4). Thus, KRS Chapter 532 places the issue of restitution solely within the discretion of the trial judge. The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Because KRS 532.033(3) charges the trial court with setting the amount of restitution, the statute contemplates that the trial court is the fact-finder in the matter. Accordingly, appellate review of the trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. CR 59.01. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Id.

Sub judice, Scott argues that the trial court erred in ordering restitution based on the retail value of the medication and not the wholesale value, resulting in a $193.21 "windfall" in the form of a profit margin. We disagree with Scott's characterization. The trial court was presented with ample evidence regarding the cost of the medication, both wholesale and retail, and the fact that the medication, by law, could not be resold once recovered. Based on the evidence presented, the trial court utilized its discretion and opted to set restitution so that the pharmacy was fully compensated for their loss due to Scott's crime. See Fields v. Commonwealth, 123 S.W.3d 914, 918 (Ky.App. 2003) (There must be a factual basis for the amount of restitution.).

We find persuasive the reasoning of our jurisprudence concerning our theft statutes,2 wherein, the general rule is that the value of stolen property is the market value at the time of the theft. Commonwealth v. Reed, 57 S.W.3d 269 (Ky. 2001). Where there is no standard market for the item, however, "the value must be arrived at from the facts and circumstances and the uses and purposes which the article was intended to serve." Beasley v. Commonwealth, 339 S.W.2d 179, 181 (Ky. 1960). In that case, the original cost; the scrap or pawn value, if any; and the replacement cost are all admissible as evidence tending to establish the value.3 Id. We agree with the Commonwealth that the trial court properly exercised its discretion given the evidence offered; accordingly, the trial court did not err in setting the amount of restitution.

Last, we disagree with Scott's argument that the trial court erred in affixing the restitution payment schedule at $250 per month once released from custody. The restitution amount sub judice was a substantial amount, approaching $6,000. We again do not find error in the trial court's utilization of its discretion to set restitution frequency in $250 increments per month once released from custody.4 Finding no error, we hereby affirm.

ALL CONCUR.

FootNotes


1. Scott does not contest these figures.
2. To that effect, we note that the issue presented is what value should be placed, for purposes of restitution, on the value of non-unique and readily available goods to a merchant that regularly purchases such goods at wholesale prices. A good that is readily available to a merchant, not unique, and demands no enhanced value to the merchant in the marketplace may be valued at the price the merchant expects to pay for the same or similar good. In other words, if the merchant acquired the good at a wholesale price then the cost of the good, for purposes of restitution, may be the wholesale cost. Additionally, the restitution should include all costs incurred by the merchant as a result of the theft and, if the good as returned to the merchant cannot be resold then the thief gets no credit for its return. In contrast, a good that is unique would be of greater value and its loss may well include the expected profit that the merchant intended to make when the good was sold.
3. The court in Beasley stated: For the purposes of a grand larceny prosecution the value of the stolen property is not the original cost nor the sale price for junk, but evidence of such cost or price is admissible as tending to establish the value. Gray v. Commonwealth, 288 Ky. 25, 155 S.W.2d 444. The true criterion is the fair market value of the property at the time and place it was stolen, if there be such a standard market; if not, the value must be arrived at from the facts and circumstances and the uses and purposes which the article was intended to serve. Gray v. Commonwealth, supra; Allen v. Commonwealth, 148 Ky. 327, 146 S.W. 762. In other jurisdictions evidence of replacement cost has been held admissible in the absence of an established market value. See 52 C.J.S. Larceny § 118, pp. 941, 942.

Beasley v. Commonwealth, 339 S.W.2d 179, 181 (Ky. 1960).

4. We note that Scott is correct that the trial court is required to enforce its restitution order pursuant to KRS 532.033.
Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer