METCALF (JUSTIN) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: OCTOBER 2, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-002381-MR JUSTIN METCALF v. APPELLANT APPEAL FROM MASON CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NO. 08-CR-00110 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE. HENRY, SENIOR JUDGE: Justin Metcalf appeals from a jury verdict and judgment finding him guilty of second-degree burglary and attempted third-degree burglary. He was sentenced to six years in prison and ordered to pay $1,000.00 in restitution to the victims of his crimes. The sole issue on appeal is whether the trial 1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. court had the authority to order Metcalf to pay restitution when he had already been sentenced to a term of incarceration. Pursuant to Commonwealth v. O’Bryan, 97 S.W.3d 454 (Ky. App. 2003), we hold that the trial court had the authority to impose restitution in this case and therefore affirm. On July 11, 2008, a Mason County grand jury charged Metcalf in an indictment with counts of second-degree burglary, attempted third-degree burglary, and second-degree fleeing/evading police.2 Metcalf entered a plea of “not guilty,” and the case proceeded to trial on October 15, 2008. The jury found Metcalf guilty of second-degree burglary and attempted third-degree burglary, and he was sentenced to six years in prison. The trial court also ordered Metcalf to pay $1,000.00 in restitution to two victims. He now challenges this order of restitution on appeal. Metcalf argues that the Mason Circuit Court lacked the statutory authority to order him to pay restitution to his victims in addition to ordering incarceration. He acknowledges that this claim of error is unpreserved; however, because sentencing is jurisdictional, “sentencing issues may be raised for the first time on appeal[.]” Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). Therefore, the claim is properly before us. At issue is the appropriate interpretation of KRS 532.032, which provides as follows: 2 The latter charge was dismissed prior to trial because it was resolved in the Mason District Court in Action No. 08-F-00114 after Metcalf entered a guilty plea. -2- (1) 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. (2) If pretrial diversion is granted, restitution shall be a part of the diversion agreement. (3) If probation, shock probation, conditional discharge, or other alternative sentence is granted, restitution shall be a condition of the sentence. (4) If a person is sentenced to incarceration and paroled, restitution shall be made a condition of parole. (5) Restitution payments ordered under this section shall be paid by the defendant to the clerk or a courtauthorized program run by the county attorney or the Commonwealth's attorney of the county. Metcalf contends that while KRS 532.032 provides for restitution to a named victim, it does so only under certain enumerated circumstances, including pretrial diversion (KRS 532.032(2)); probation, shock probation, conditional discharge, alternative sentence (KRS 532.032(3)); or parole (KRS 532.032(4)) – none of which apply to him since he was sentenced to six years’ imprisonment. He further claims that since neither KRS 532.032(1) nor any of the statutes listed therein explicitly authorize court-ordered restitution as a supplement to imprisonment or otherwise expand the situations in which restitution may be ordered, the trial court was necessarily prohibited from ordering him to pay restitution. -3- Metcalf acknowledges that in Commonwealth v. O’Bryan, supra, we rejected the same argument and held that there is nothing within KRS 532.032 that precludes a trial court from ordering restitution when a defendant is also ordered to serve a term of imprisonment. O’Bryan, 97 S.W.3d at 457. In O’Bryan, the defendant was convicted for unauthorized use of a motor vehicle and for receiving stolen property. He was sentenced to a year in prison, but the trial court refused the Commonwealth’s request for restitution, finding that it had no authority to order it when imprisonment was imposed. On appeal, this Court held that this finding was in error and reversed. We explained our reasoning as follows: In Commonwealth v. Bailey, our Supreme Court held that under KRS 431.200 the trial court could order a defendant who was ineligible for probation to pay restitution to the victim since “[i]t would be an anomaly to permit restitution to a victim as a part of the probation process of a first offender, which is recognized as available, and then to deny such restitution when the criminal, because of his own conduct, is ineligible for probation.” Likewise, we conclude that to hold under KRS 532.032 that a defendant who is sentenced to prison is not required to pay restitution until, and only if, he is paroled would be unreasonable and it would not give effect to the legislative intent of requiring a defendant to pay restitution to the crime victim. From our reading of KRS 439.563, KRS 532.033, KRS 533.020 and KRS 533.030, which are specifically referenced in KRS 532.032(1), we discern no conflict which would preclude restitution from being ordered by the trial court when a defendant is also ordered to serve a term of imprisonment. While O’Bryan relies on the lack of specific language in KRS 532.032(1) authorizing court-ordered restitution in addition to imprisonment, we opine that it is not only logical but it is consistent with the statutory scheme to read KRS 532.032(1) as requiring -4- both payment of restitution and imprisonment. KRS 532.032(2), (3) and (4) cover all of the possible sentencing scenarios other than a defendant being required to serve the prison sentence. Thus, KRS 532.032(1) can reasonably be interpreted to apply to the defendant who must serve the prison sentence. Consequently, we hold that the language of KRS 532.032(1) which states that “[r]estitution . . . shall be ordered . . . in addition to any other part of the penalty . . .” requires the trial court to order payment of restitution to the named victim even if imprisonment is also ordered. Id. at 456-57 (footnotes omitted). Accordingly, on its face, our decision in O’Bryan compels a similar result here in favor of the Commonwealth. While Metcalf’s counsel acknowledges the existence of O’Bryan as well as its holding, she urges us to ignore it “because it is incorrectly reasoned.” Appellant’s Reply Brief, p. 1. She observes matter-of-factly that “individual panels of the Court of Appeals are not bound by each other’s decisions, and one panel may differ from another panel.” Id. As authority for this line of argument, which we take to be that a published opinion of our own Court is entitled to no deference or comity from us whatsoever, we are cited to Rules of the Supreme Court (SCR) 1.030(7)(d) and Commonwealth v. Merriman, 265 S.W.3d 196 (Ky. 2008). In fact, the correct interpretation of SCR 1.030(7)(d) is the opposite of that urged by Metcalf’s counsel. The rule says: (d) Finality of Decisions. The decision of a majority of the judges of a panel shall constitute the decision of the Court of Appeals. If prior to the time the decision of a panel is announced it appears that the proposed decision is in conflict with the decision of another panel on the same question, the chief judge may reassign the -5- case to the entire court. If a panel is unable to reach a decision on a case under consideration by it, the chief judge may reassign the case to a larger or different panel or to the entire court. [Emphasis added.] The beginning sentence of the rule means that the published opinion of this Court in O’Bryan is the decision of the entire Court of Appeals. Such a published decision, in the absence of a decision of the Kentucky Supreme Court on the same issue, is a binding precedent and constitutes the law of Kentucky. See SCR 1.040(5). Other panels of the Court of Appeals may disagree with or criticize a prior published opinion, whether of this Court or the Kentucky Supreme Court. See Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). And SCR 1.030 provides a procedure whereby a panel may request en banc review of a proposed decision which conflicts with a decision of a different panel. But the rule is not intended to incite various panels of the Court of Appeals to intentionally disregard or flout the Court’s own published opinions. Such a practice would multiply uncertainty and confusion among the Bar and would promote chaos in the trial courts. On rare occasions, an opinion may inadvertently be released which conflicts with a prior opinion, but the rules and procedures of Kentucky’s appellate courts are designed to minimize rather than encourage such conflict. As to the precedential value of the holding of Commonwealth v. Merriman to this case, we can only say that we fail to see any; that case involved the Supreme Court’s interpretation of the interplay between KRS 439.3401 and KRS 640.030, neither of which are involved here. Nor is there any mention in -6- Merriman of restitution or of KRS 532.032, which are the subject of this case. If, as counsel contends, the reasoning of O’Bryan was “a dodge” (as the Supreme Court characterized the Commonwealth’s argument in Merriman) it is that Court’s prerogative, not ours, to say so. Moreover, after reviewing O’Bryan, we conclude that the reasoning therein is sound and consistent with established principles of statutory interpretation. Accordingly, we reaffirm O’Bryan and hold that the trial court was within its power to impose restitution in addition to a prison term in this case. The judgment of the Mason Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky Jack Conway Attorney General of Kentucky James Hays Lawson Assistant Attorney General Frankfort, Kentucky -7-

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