HILL (SANDY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002340-MR
SANDY HILL
v.
APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 06-CR-00260
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: FORMTEXT COMBS, CHIEF JUDGE; DIXON AND TAYLOR,
JUDGES.
TAYLOR, JUDGE: Sandy Hill brings this appeal from an October 19, 2007,
Order of the Calloway Circuit Court requiring her to pay restitution in the amount
of $8,410. We afffirm.
On December 11, 2006, Hill was indicted by a Calloway County
Grand Jury of third-degree burglary. In the indictment, it was alleged that Hill
knowingly entered and unlawfully remained in a storage unit rented by Angela
Jackson with the intent to commit the crime of theft by deception over $300. Hill
subsequently pleaded guilty and was granted pretrial diversion. Without benefit of
an evidentiary hearing, the circuit court entered an order on August 17, 2007,
directing Hill to pay $8,410 in restitution. Hill then filed a motion to amend,
vacate or set aside the restitution order and a motion for an evidentiary hearing.
The court granted Hill’s motions, set aside the order of restitution, and scheduled
the matter for an evidentiary hearing.
The circuit court conducted an evidentiary hearing. The
Commonwealth called the victim, Angela Jackson, to testify. Jackson testified as
to the value of each item taken from her storage unit. Jackson further testified that
she arrived at the values based upon the amount she paid for the item or the
amount to replace the item. After the Commonwealth questioned Jackson, Hill’s
trial counsel cross-examined Jackson regarding the values. During crossexamination, the court interrupted Hill’s trial counsel and asked whether he
intended to continue with the same line of questioning or whether he intended to
call any witnesses to controvert Jackson’s testimony regarding value. Trial
counsel never indicated that he planned to call any witnesses. Rather, trial counsel
responded that he intended to show the values Jackson assigned to the items where
“broad guesstimates.” The court then stated it was “not going to get into
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nitpicking” the values supplied by Jackson. The court terminated the hearing. By
order entered October 19, 2007, the circuit court “reinstated” the original
restitution order of August 17, 2007. This appeal follows.
Hill contends the circuit court violated her constitutional right to due
process by ordering restitution without a full evidentiary hearing. Specifically, Hill
contends that the circuit court erroneously terminated the hearing during crossexamination of Jackson. In particular, Hill claims she “was entitled to a hearing
and a chance to present evidence in her own behalf.”
It is well-established that the constitutional right of due process
mandates that a defendant be “afforded a meaningful opportunity to controvert the
evidence against him” at a restitution hearing. Fields v. Com., 123 S.W.3d 914,
917 (Ky.App. 2003)(quoting Com. v. Jeffries, 95 S.W.3d 60, 62 (Ky. 2002)).
Generally, a defendant is afforded a meaningful opportunity to controvert the
evidence if he is allowed to “introduce countervailing evidence.” Id. at 917.
In this case, the circuit court clearly questioned Hill’s trial counsel
regarding whether he intended to introduce countervailing evidence as to the value
of the stolen items, and trial counsel never answered in the affirmative. In fact, the
circuit court specifically asked trial counsel whether he intended to “put on any
evidence.” Trial counsel responded that he only intended to show Jackson’s values
were “broad guesstimates.” Moreover, in her brief, Hill does not specify what
evidence she intended to introduce but merely states that she was denied the right
to present evidence. While we certainly recognize the right of every defendant to
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present countervailing evidence at a restitution hearing, it is axiomatic that such
right is only infringed when a defendant intended to introduce such evidence and
was prevented from so doing by the circuit court. Considering the unique facts of
this case, we conclude that Hill’s due process rights were not violated.
For the foregoing reasons, the Order of the Calloway Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Prince
Benton, Kentucky
Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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