JAMES PIKE v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 26, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-3365-MR
JAMES PIKE
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE RAY CORNS, SPECIAL JUDGE
ACTION NO. 93-CR-00051
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
BEFORE:
BUCKINGHAM, KNOX, and MILLER, Judges.
BUCKINGHAM, JUDGE.
James Pike (Pike) appeals from an order of
the Oldham Circuit Court which revoked his probation.
For the
reasons set forth hereinafter, we affirm.
Pike was charged with forty-four counts of theft.
Pursuant
to a plea agreement with the Commonwealth, Pike pled guilty to
one count of theft by unlawful taking over $100 and one count of
theft by unlawful taking over $300.
He was sentenced to two
years of prison on each count to run concurrently, and his
sentence was probated for a five-year period on various
conditions, including the condition that he make restitution in
the amount of $86,050 to the victim.
The restitution payments
were to be made in four installments, with $25,000 to be paid on
or before the date of sentencing and $20,350 to be paid on the
first, second, and third anniversaries of his sentencing.
Pike
made the first $25,000 payment on August 4, 1995, and his next
installment of $20,350 was due on August 4, 1996.
When Pike
failed to make the required payment at that time, the
Commonwealth filed a motion to revoke his probation, and a
revocation hearing was held.
The trial court entered an order
revoking Pike’s probation for failure to make restitution, and
this appeal followed.
In Bearden v. Georgia, 461 U.S. 60, 103 S.Ct. 2064, 76 L.Ed.
2d 221 (1982), the Court held that
. . . in revocation proceedings for failure
to pay a fine or restitution, a sentencing
court must inquire into the reasons for the
failure to pay. If the probationer willfully
refused to pay or failed to make sufficient
bona fide efforts legally to acquire the
resources to pay, the court may revoke
probation and sentence the defendant to
imprisonment within the authorized range of
its sentencing authority. If the probationer
could not pay despite sufficient bona fide
efforts to acquire the resources to do so,
the court must consider alternative measures
of punishment other than imprisonment. Only
if alternative measures are not adequate to
meet the State’s interests in punishment and
deterrence may the court imprison a
probationer who has made sufficient bona fide
efforts to pay. To do otherwise would
deprive the probationer of his conditional
freedom simply because, through no fault of
his own, he cannot pay the fine. Such a
deprivation would be contrary to the
fundamental fairness required by the
Fourteenth Amendment . . . .
Id. at 672-73.
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The trial court found that Pike “made no attempts to pay any
amount of the first installment as ordered by this Court to the
victims in this case.”
The trial court further found that Pike
“has not made a sufficient bona fide effort to acquire the
resources to pay restitution.”
The trial court also stated that
Pike’s “utter disregard of its Order warrants the revocation of
probation in the above-styled case.”
The facts indicate that Pike was employed as a truck driver
when he was sentenced and put on probation.
He was employed in
that capacity from August 21, 1995, to June 30, 1996.
During
that time, his net income was $18,050.66, none of which was used
to pay restitution.
Approximately one month before his restitution payment
became due, Pike requested temporary leave from his employment
for personal reasons and never returned to work for that
employer.
Pike had no other employment at that time and was left
without any source of income.
During the five months between the
end of his employment as a truck driver and his revocation
hearing on December 2, 1996, Pike started and quit several other
jobs.
He made no restitution payments on the installment of
$20,350 which was due other than the $3,000 he offered to pay on
the date of the revocation hearing.
Under the facts set forth above, we cannot say that the
findings of the trial court were clearly erroneous or that the
trial court abused its discretion in revoking Pike’s probation.
The evidence was sufficient to establish that Pike willfully
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refused to pay restitution or failed to make sufficient bona fide
efforts to acquire the resources to do so.
Pike also argues that the trial court erred by failing to
consider alternatives to confinement.
See Clayborn v.
Commonwealth, Ky. App., 701 S.W.2d 413 (1985).
To the contrary,
the record indicates that alternatives were proposed to the trial
court but were rejected.
Although the trial court did not
specifically state why it rejected the alternatives to
incarceration, it was not required to do so.
471 U.S. 606, 105 S.Ct.
Black v. Romano,
2254, 85 L.Ed.2d 636 (1985).
In light
of the large amount of money stolen by Pike which remained unpaid
to the victim and in light of the Commonwealth’s interest in
punishment and deterrence, we cannot say that the trial court
abused its discretion in rejecting alternatives to incarceration.
The order of the Oldham Circuit Court revoking Pike’s
probation is affirmed.
KNOX, JUDGE, CONCURS.
MILLER, JUDGE, DISSENTS WITHOUT OPINION.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert A. Riley
LaGrange, KY
A. B. Chandler III
Attorney General
Jeff S. Smith
Assistant Attorney General
Frankfort, KY
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