VIRGIL KIMBLER APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

VIRGIL KIMBLER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000252–MR

Decided: March 09, 2012

BEFORE:  COMBS, KELLER, AND STUMBO, JUDGES. BRIEFS FOR APPELLANT:  Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Virgil Kimbler (Kimbler) appeals the trial court's denial of his motion to dismiss flagrant nonsupport charges.   On appeal, Kimbler argues that he cannot be guilty of flagrant nonsupport when his sole source of income is Social Security Supplemental Security Income (SSI) benefits.   The Commonwealth argues that Kimbler voluntarily entered into a plea agreement to pay past-due child support before any proof could be taken, leaving the record inadequate to address the issue on appeal.   Having reviewed the record, we affirm.

FACTS

On September 17, 2010, a grand jury indicted Kimbler for flagrant nonsupport for failing to pay previously ordered child support.   The amount due at that time was $9,876.00.   On November 24, 2010, Kimbler filed a motion to dismiss the indictment arguing that:  he is totally and permanently disabled;  his only source of income is SSI benefits;  and the Johnson County Child Support Division had closed its file, indicating that he had a past-due balance of zero.   At a hearing on his motion, the court asked Kimbler if he had any income.   Kimbler stated that he received SSI. The court found that this constituted income and denied Kimbler's motion.

Kimbler then entered into a plea agreement with the Commonwealth.   The plea agreement provided that Kimbler would be sentenced to three years' imprisonment, probated for five years, conditioned on his payment of $60.00 per month toward his child-support arrearage.   The agreement further provided that Kimbler retained the right to appeal the court's denial of his motion to dismiss.   The court accepted Kimbler's plea and entered a judgment consistent with that plea.   This appeal followed.

STANDARD OF REVIEW

Rulings on motions to dismiss indictments are generally subject to an abuse of discretion standard of review.  Commonwealth v. Deloney, 20 S.W.3d 471, 473–74 (Ky.2000).   To amount to an abuse of discretion, a trial court's denial must be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007) (internal citation and footnote omitted).

ANALYSIS

At the outset, we note that no evidence supports Kimbler's assertions that he is totally disabled;  that SSI benefits are his only source of income;  and that the Johnson County Child Support Division determined that he has no past-due balance.   These assertions come from unverified statements by Kimbler and his counsel in the motion to dismiss and the hearing on that motion.   We also note that there is no evidence in the record or even any statement by counsel indicating when Kimbler qualified for SSI benefits or what the nature of Kimbler's disability is.   Thus we agree with the Commonwealth that the record is woefully deficient for the purposes of appeal.   Having noted the preceding, we address the issues raised by Kimbler, looking first to the sufficiency of the indictment.

In determining whether to dismiss an indictment, a court can only consider whether the indictment conforms to the requirements of Kentucky Rule(s) of Criminal Procedure (RCr) 6.10.  Hancock v. Commonwealth, 998 S.W.2d 496, 498 (Ky.App.1998).   Pursuant to RCr 6.10(2), an indictment is

sufficient if it contains, a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant is charged.   It need not contain any other matter not necessary to such statement, nor need it negative any exception, excuse or proviso contained in any statute creating or defining the offense charged.

The indictment herein reads:  “Virgil L. Kimbler committed the offense of Flagrant Non–Support when he failed to pay child support to Mrs. Janette Howell as court ordered with a total amount exceeding $9,876.00.”   Thus, the court was required to determine if that language conforms with RCr 6.10(2) by comparing it to the crime charged.

A person is guilty of flagrant nonsupport when he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor or to a child adjudged mentally disabled, indigent spouse or indigent parent and the failure results in:

(a) An arrearage of not less than one thousand dollars ($1,000)[.]

Kentucky Revised Statute(s)(KRS) 530.050(2).

Kimbler argues, at least by implication, that the indictment did not address whether he could “reasonably provide” support.   However, whether Kimbler could provide support is not necessary to the indictment because his ability to provide support amounts to an “exception, excuse or proviso” that the indictment need not negate.   Therefore, the indictment sufficiently sets forth the essential facts constituting the charge of flagrant nonsupport, and the court did not abuse its discretion when it denied Kimbler's motion to dismiss.

Although we need not address any of Kimbler's other arguments, we briefly do so.   It appears that Kimbler is seeking an opinion from this Court that, as a matter of law, a recipient of SSI benefits cannot be indicted for flagrant nonsupport.   We refuse to reach that conclusion in this case for several reasons.   First, as noted above, there are only unverified assertions in the record that Kimbler receives SSI benefits and that such benefits constitute his only income.

Second, KRS 403.312(2)(b) specifically states that SSI benefits can be considered as gross income when setting child support.   Because SSI benefits can be used in setting child support, it is illogical to conclude that receipt of those benefits per se exempts a person from being liable for flagrant nonsupport.   We recognize Kimbler's argument that Kentucky's inclusion of SSI benefits as wages for child-support purposes conflicts with federal law.   However, as noted by both parties, the Supreme Court of Kentucky, in Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840, 842 (Ky.1998), held that KRS 403.312.(2)(b) does not create any such conflict and we are bound to follow that precedent.   Rule(s) of the Supreme Court (SCR) 1.030(8)(a).

Third, Kimbler is correct that the Commonwealth has the burden of proving that he can reasonably provide the child support he has agreed to pay.   Schoenbachler v. Commonwealth, 95 S.W.3d 830, 835 (Ky.2003).   However, Kimbler pled before any proof was taken.   Therefore, we cannot determine if the Commonwealth could have met that burden and any holding on that issue would be based on speculation, which we will not undertake.

Finally, we note Kimbler's argument that this matter must be remanded for additional proceedings pursuant to Commonwealth v. Marshall, 345 S.W.3d 822 (Ky.2011).   However, Marshall is not dispositive.   In Marshall, the issue involved “due process requirements when a trial court considers a motion to revoke probation for failure to comply with child support payment conditions.”  Id. at 824.   In resolving that issue, the Supreme Court of Kentucky held that the trial court is required to determine whether a defendant has “made sufficient bona fide attempts to make payments” and been “unable to do so through no fault of his own and, if so ․ whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.”   Id. at 828.

Herein, the Commonwealth was not seeking to revoke probation, because Kimbler was not on probation.   Therefore, the trial court was not required to make the findings set forth in Marshall.   Furthermore, Kimbler has pointed to no caselaw that indicates such findings are necessary prior to acceptance of a plea agreement.   If Kimbler is unable to pay his current child-support obligation and the Commonwealth seeks to revoke his probation, he will be entitled to the process due him under Marshall.   However, he is not entitled to that process until that time.

CONCLUSION

For the foregoing reasons, we affirm the trial court's denial of Kimbler's motion to dismiss.

aLL CONCUR.

KELLER, JUDGE: