RENDERED: JANUARY 6, 2012; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2010-CA-000559-DG K.B., A CHILD UNDER EIGHTEEN APPELLANT ON DISCRETIONARY REVIEW FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 09-XX-00011 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: K.B., a juvenile, appeals a Franklin Circuit Court order affirming a Franklin District Court order finding K.B. jointly and severally liable for restitution to the victim of his burglary crime in the amount of $2,076.41. On appeal, K.B. alleges that: (1) the Commonwealth did not introduce sufficient evidence to prove the amount of damages; (2) the district court did not have
authority to order joint and several liability; and (3) restitution was not in K.B. s best interests. Having considered the facts and applicable law, we affirm. On the evening of January 26, 2009, then fourteen-year old K.B. and another juvenile, with the assistance of two additional juveniles, entered a residence leased by Kelly Robinson. The premises were owned by Robinson s aunt and uncle, Melvin and Patsy Conway. K.B. entered the residence by forcing open a locked exterior door causing the door and frame to fracture. Inside the residence, the juveniles damaged a gun safe but were unable to access the contents. Two shotguns located outside the safe and other items were stolen. K.B. entered a delinquent plea to burglary, first-degree. A disposition was held and K.B. was sentenced to forty-five days in a secure juvenile detention facility, suspended. K.B. was ordered to be probated to the Kentucky Department of Juvenile Justice until his eighteenth birthday and to perform twenty hours of community service. A separate hearing on restitution was scheduled. At the restitution hearing, Robinson presented an invoice from Robinson Construction, owned by Robinson s father, for the repair and replacement of the door and replacement of the gun safe. Counsel for K.B. and his co-defendants objected to the admission of the invoice presented by Robinson. The court then requested counsel to obtain quotes from other sources for repair and replacement of the damaged items. A second restitution hearing was held. Robinson testified that the property s owners authorized her to proceed on their behalf at the restitution -2-
hearing. She presented photographs of the damaged property, a quote for repair of the door from Lowe s Home Center, and two quotes from local contractors for labor. The Lowe s quote for the cost of replacement of the door and frame was $1,129. One local contractor quoted the cost for labor at $375, and the second contractor quoted $385. Additionally, a statement identified three video components stolen for a total of $109.97 and the cost of camo gun wrapping valued at $38.99. Robinson testified regarding the damage to the door and the safe. She stated that the safe would not lock properly, the door was visually unattractive and its damage rendered the home more susceptible to another burglary. On crossexamination, she further testified that she only sought estimates for the door s replacement and that she did not look for a used safe. After hearing the evidence, the district court ordered restitution in the amount of $2,076.41, representing the lowest labor estimate ($375), the cost of a replacement door ($l,129), replacement of the safe ($437.44), the three video games ($109.97), and the camouflage gun wrap ($25). The court ordered that K.B. and his two co-defendants be jointly and severally liable. 1 The cost for replacement of the door, including labor, was ordered to be paid to the owners of the property, Melvin and Patsy Conway. K.B. appealed to the Franklin Circuit Court which affirmed. This Court granted discretionary review. 1 The third co-defendant had been previously admitted to a residential treatment facility and was not included in the restitution order. -3-
We begin with citation to KRS 635.060(1) that expressly authorizes the juvenile court to order restitution. It states: If in its decree the juvenile court finds that the child comes within the purview of this chapter, the court, at the dispositional hearing, may: (1) Order the child or his parents, guardian, or person exercising custodial control to make restitution or reparation to any injured person to the extent, in the sum and upon the conditions as the court determines. However, no parent, guardian, or person exercising custodial control shall be ordered to make restitution or reparation unless the court has provided notice of the hearing, provided opportunity to be heard, and made a finding that the person's failure to exercise reasonable control or supervision was a substantial factor in the child's delinquency[.] The issues presented concern the sufficiency of the evidence to support the amount of restitution ordered, the discretion of the court to order joint and several liability, and whether restitution was in K.B. s best interest. K.B. s initial contention is that Robinson could not assert claims regarding the damage to the door. The circuit court properly pointed out that the district court ordered that restitution for the damage to the door be paid to the owners and, therefore, K.B. s contention is without merit. He also asserts that the amount of restitution was not supported by the evidence. Specifically, he argues that the company providing the estimate told defense counsel that the door was fully depreciated. KRS 635.060(1) confers authority on the juvenile court as fact-finder to determine the amount of restitution. Accordingly, its findings will not be set aside unless clearly erroneous. -4-
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). The age of the door is insignificant. There was evidence consisting of repair estimates and Robinson s testimony that it was damaged constituted substantial evidence to support the district court s finding. There was no error. K.B. argues that the district court lacked authority to order joint and several liability. As we have stated, the Unified Juvenile Code gives the court wide discretion when ordering restitution: Restitution may be ordered to the extent, in the sum and upon the conditions as the court determines[.] KRS 635.060(1). Despite the district court s broad discretion to order the condition of restitution, K.B. contends that joint and several liability for restitution in adult criminal cases and in juvenile cases is prohibited because it has been abolished in tort law. In Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 291 (Ky.App. 1998), the Court held that, under KRS 411.182, there is no joint and several liability in Kentucky tort law and that both negligent and intentional tortfeasors must pay an apportioned amount. The Kentucky Supreme Court has recognized that the abolition of joint and several liability in the tort context is based on fairness among tort-feasors: Whereas it is fundamentally unfair for a plaintiff who is only 5 percent at fault to be absolutely barred from recovery from a defendant who is 95 percent at fault, it is equally and fundamentally unfair to require one joint tort-feasor who is only 5 percent at fault to bear the entire -5-
loss when another tort-feasor has caused 95 percent of the loss. Such a result is possible if the only tort-feasor named by the plaintiff in a law suit is only 5 percent at fault and another tort-feasor who is 95 percent at fault is brought in as a third-party defendant. Dix & Associates Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky. 1990). Although an argument that the same concept of judicial fairness applicable to joint tort-feasors should likewise be applicable to restitution orders may appear logically alluring, it is not persuasive. Criminal defendants are more culpable than tort-feasors and, therefore, under certain circumstances, should be held jointly and severally liable. In the context of adult restitution, the applicable statute provides that restitution may be apportioned. KRS 533.030(3). Notably, the statute uses the term may and, therefore, apportionment is not mandatory. Although no published case in Kentucky has addressed whether liability for restitution is joint and several, we are persuaded by this Court s unpublished opinion in Burton v. Commonwealth, 2005 WL 195079, 6 (Ky.App. 2005), where it was held that KRS 533.030(3) permits joint and several liability. 2 KRS 533.030(3) states that [w]here there is more than one (1) defendant or more than one (1) victim, restitution may be apportioned. The statute uses the permissive may. To say that restitution may be apportioned among multiple defendants necessarily implies that apportionment is not mandatory. Joint and several liability is also consistent with the restitution statutes' legislative intent of ensuring that crime victims are fully compensated for their monetary losses because it increases the pool of available funds. 2 CR 76.28 permits citation to an unpublished opinion rendered after January 1, 2003, if there is no published opinion that adequately addresses the issue before the court. -6-
Based upon the plain meaning of the KRS 533.030(3) and the fact that imposing joint and several liability promotes the legislative intent of restitution, we hold that multiple defendants may be held jointly and severally liable for restitution. Although KRS 533.030(3) applies only to adults, similar reasoning can be applied to the juvenile code. Restitution under our adult criminal statutes and our juvenile code serves to compensate the victim. Moreover, KRS 600.010(2)(e) and (f) expressly state that restitution is a part of the effort to rehabilitate a delinquent youth. The subsections state: e) KRS Chapter 635 shall be interpreted to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation; (f) KRS Chapter 640 shall be interpreted to promote public safety and the concept that every child be held accountable for his or her conduct through the use of restitution, reparation, and sanctions, in an effort to rehabilitate delinquent youth[.] Again, reflecting the goals of rehabilitation and protection of victims, KRS 600.010(2)(g) provides that the policy of the Commonwealth is to provide judicial procedures that protect the rights and interests of all parties, including victims. We conclude that the district court had the discretion to order joint and several liability. Having decided that joint and several liability is appropriate, the question as to whether it was appropriate in this case is subject to the abuse of discretion standard. A trial court has wide discretion in sentencing, and -7-
sentencing decisions are only reviewed for an abuse of that wide discretion. C.W.C.S. v. Commonwealth, 282 S.W. 3d 818, 824 (Ky.App. 2009). In this case, K.B. and his co-defendants participated in the burglary. According to the charging document to which K.B. admitted his delinquency, K.B. was the primary participant and he forcefully burglarized the residence. By ordering joint and several liability, the district court exercised its discretion to provide greater assurance that the victim would be compensated. Finally, K.B. contends that consistent with KRS 600.010 (2)(e), the district court was required to find that restitution was not in K.B. s best interests. The statute requires that the restitution order promote the best interests of the child but also recognizes that restitution is available to the court in an effort to rehabilitate the child. It is not a retributive punishment but serves a rehabilitative function by reducing recidivism and advancing the principles of personal responsibility and accountability. K.B. complains that because of his age and low prospects for employment, it is impossible for him to comply with the court s order and cites State v. M.D.J., 289 S.E.2d 191 (S.Ct. W.Va. 1982), where the Court held that it was unreasonable and not for the purpose of rehabilitation when a high school junior was ordered to pay $1,500 in restitution as a condition of probation. That case is distinguishable: K.B. s probation is not dependent upon the restitution payment and he is not required to adhere to a payment schedule. -8-
We echo the comments of the Franklin Circuit Court when it cautioned that joint and several liability in a juvenile restitution order is not appropriate in all cases and must only be ordered if rehabilitative in nature and to promote the juvenile s best interest. However, in this case, the district court did not abuse its discretion. The opinion and order of the Franklin Circuit Court is affirmed. STUMBO, JUDGE, CONCURS. CLAYTON, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Dawn Fesmier Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David Garnett Assistant Franklin County Attorney Frankfort, Kentucky -9-