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RENDERED: JULY 8, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1133-MR

AMY BURNS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 19-CR-000510-001

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON, 

JUDGES.

CLAYTON, CHIEF JUDGE: Amy Burns appeals from the Jefferson Circuit 

Court’s findings of fact, conclusions of law, and judgment denying her motion to

amend a sentence imposing restitution. Upon review of the record and applicable 

law, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

On December 30, 2019, Amy Burns pleaded guilty to second-degree 

burglary, theft by unlawful taking over $10,000, receiving stolen property under 

$500, and illegal possession of drug paraphernalia. 

Burns entered the victim’s home through an unlocked back door. The 

victim, Stephanie Schaefer, knew Burns’s partner, Christopher Ulmer, from The 

Healing Place, a men’s rehabilitation center where Schaefer worked for 13 years. 

Schaefer had invited Ulmer to her house on previous occasions. Schaefer noticed 

39 pieces of jewelry were missing when she returned home and called the police. 

Schaefer recognized Burns from home security footage. Police found some of the 

jewelry when they executed a search warrant of Burns’s home. Shaefer had 

provided the police with a list of the stolen items along with insurance appraisals 

of four of the items. Of the 39 pieces of jewelry that were missing, police were 

only able to recover five pieces, valued at $3,059. Schaefer received $2,500 in 

insurance proceeds with the total loss of the unrecovered items valued at 

$201,305.18. 

Burns was given a five-year sentence which was probated for five 

years. After a restitution hearing on October 12, 2020, she was ordered to pay 

$201,305.18 in restitution jointly and severally with her co-defendant Christopher 

Ulmer. 
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On June 10, 2021, Burns tested positive for Xanax and Fentanyl and 

left a treatment center before she completed the program. The Commonwealth 

filed a motion to revoke her probation. At the probation revocation proceedings, 

defense counsel filed a motion to amend the restitution order, arguing that the 

restitution was capped at $100,000 by Kentucky Revised Statutes (KRS)

533.030(3) and that no evidence of gain had been presented at the hearing. The 

trial court denied the defense motion. This appeal followed. 

ANALYSIS

a. Standard of Review

The trial court’s interpretation of KRS 533.030(3) is a matter of law,

and the construction and application of laws is reviewed de novo. Bob Hook 

Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490

(Ky. 1998). The trial court’s factual findings are reviewed under a clearly 

erroneous standard. Kentucky Rules of Civil Procedure (CR) 52.01. The trial 

court is the factfinder in the matter of restitution. Donovan v. Commonwealth, 376 

S.W.3d 628, 631 (Ky. App. 2012). The fact-finding is not clearly erroneous if it is 

supported by substantial evidence. Substantial evidence is evidence which, when 

taken alone or in light of all the evidence, has sufficient probative value to induce 

conviction in the mind of a reasonable person. Hunter v. Hunter, 127 S.W.3d 656, 

659 (Ky. App. 2003). 
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b. Analysis

Burns argues that the trial court exceeded the statutory cap on 

restitution and thus failed to correct an illegal sentence. KRS 533.030(3) provides 

in pertinent part as follows: 

When imposing a sentence of probation or conditional 

discharge in a case where a victim of a crime has suffered 

monetary damage as a result of the crime due to his or 

her property having been converted, stolen, or unlawfully 

obtained, or its value substantially decreased as a result 

of the crime, . . . the court shall order the defendant to 

make restitution in addition to any other penalty provided 

for the commission of the offense. . . . Restitution shall 

be ordered in the full amount of the damages, unless the 

damages exceed one hundred thousand dollars 

($100,000) or twice the amount of the gain from the 

commission of the offense, whichever is greater, in 

which case the higher of these two (2) amounts shall be 

awarded.

Burns argues that the $201,305.18 in restitution payments was an 

illegal sentence because it exceeded the $100,000 cap. However, the sentence was

imposed because of the gain Burns and Ulmer made in stealing over $200,000 

worth of jewelry; this fits within the second possible cap of up to twice the amount 

of the gain from the commission of the offense. 

Burns states that the second possible cap should not apply because she 

made no gain from the offense. She urges the Court of Appeals to apply a 

definition of gain as the profit realized by the sale of wrongfully taken property,

otherwise known as “disgorgement.” But the definition Burns urges the Court to 
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adopt would frustrate the purpose of restitution, which has been described by the 

Kentucky Supreme Court as “a system designed to restore property or the value 

thereof to the victim. It is not punishment to make the criminal give back 

something which was never his and which was obtained by him only by 

commission of a crime.” Commonwealth v. Bailey, 721 S.W.2d 706, 707 (Ky. 

1986). To require the gain that must be paid as restitution to only come from

profits obtained by selling the ill-gotten property would frustrate this purpose. In 

cases like the present one, the victim would neither have their property restored nor 

receive the value thereof if the defendant did not sell it for its full value. It 

essentially would punish the victim for a defendant’s bad deal. 

Statutes which are remedial in nature should be liberally construed in 

favor of their remedial purpose. Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. 

Jeffers, 13 S.W.3d 606, 611 (Ky. 2000). The Kentucky Supreme Court has stated

that KRS 533.030 “clearly authorizes restitution for the full amount of the 

damages. Such restitution is intended to fully compensate for the loss incurred[.]” 

Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002). Furthermore, “[a]ll

words and phrases shall be construed according to the common and approved 

usage of language[.]” KRS 446.080(4). Interpreting the gain from the offense to 

be the value of what was stolen fits with the common usage of “gain.” Burns and 

Ulmer certainly gained the value of those items when they were in their 
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possession, and they did not have that value before the commission of the crime. 

This interpretation is also in accordance with the definition of “gain” in KRS 

534.010, which deals with fines in a manner similar to how KRS 533.030 deals 

with restitution. KRS 534.010 defines gain as, “the amount of money or the value 

of property derived from the commission of the crime, less the amount of money or 

the value of property returned to the victim of the crime or seized by or 

surrendered to lawful authority prior to the time sentence is imposed.” 

As a part of her argument that she made no gain from the theft, Burns 

states that the facts established at the restitution hearing lacked any indicium of 

reliability to support a finding of gain and thus the finding violated due process. 

She points to the lack of information about the sum she received from selling the 

jewelry to pawn shops. However, the court had substantial facts to conclude that 

the value of the unrecovered jewelry was $203,805.18 with the $2500 insurance 

payout subtracted. “[T]estimony of the owner of stolen property is competent 

evidence as to the value of the property.” Commonwealth v. Reed, 57 S.W.3d 269, 

270 (Ky. 2001). It simply must be of sufficient detail for the factfinder to make a 

determination. Id. at 271. Stephanie Schaefer testified as to the value of the 

jewelry and provided documentation of the price of the jewelry along with 

insurance estimates of several pieces. The finding of the amount was an issue of 

fact and as such shall not be set aside unless clearly erroneous. Donovan, 376 
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S.W.3d at 631. It was not clearly erroneous for the trial court to find the value of 

the jewelry to be $203,805.18 based on the testimony of Schaefer and the 

investigating officer along with the documentation provided. There is no rigid and 

precise formula a trial court must use when calculating restitution damages and 

KRS 533.030 gives a great deal of discretion to trial court judges when 

determining restitution amounts. Dickerson v. Commonwealth, Nos. 2015-CA000482-MR and 2015-CA-000486-MR, 2016 WL 6134903 (Ky. App. Oct. 21, 

2016). The trial court’s factual findings were not clearly erroneous and so they 

cannot be overturned. 

Burns argues that the trial court lacked jurisdiction to find that she had 

made a gain because CR 52.02 and CR 59 strip the circuit court of jurisdiction to 

amend its findings or rulings in a judgment ten days after its entry into the official 

record. She argues that by referring to a “gain” in the denial of the motion to 

amend, the trial court made a substantive change to its earlier order which is barred 

by the Kentucky Rules of Civil Procedure. A challenge to jurisdiction is typically 

a question of law and is reviewed de novo. Karem v. Bryant, 370 S.W.3d 867, 869 

(Ky. 2012). Burns is correct that the trial court has control over its judgment in 

regard to ordering a new trial, or altering, amending, or vacating the judgment, for 

ten days after the judgment is entered but not thereafter. Johnson v. Smith, 885 

S.W.2d 944, 947 (Ky. 1994). Here however, the trial court did not make any 
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alteration or amendment to its judgment. Burns cites Goldsmith v. Commonwealth, 

363 S.W.3d 330 (Ky. 2012), as an example of an alteration that the trial court did 

not have jurisdiction to make due to the passage of time. However, the probation 

revocation at issue in Goldsmith involved a change which led to the sentence being 

run consecutively with another sentence. Id. Here it merely involved the court 

referring to Burns having a “gain” from her crime whereas the word “gain” was 

not mentioned in the initial restitution order. That is a far less substantial change 

than in Goldsmith if it is even considered a change at all, given that the amount of 

restitution was not altered. 

CONCLUSION

For the foregoing reasons, we affirm the Jefferson Circuit Court’s 

judgment. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Christopher B. Thurman

Louisville, Kentucky 

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Kristin L. Conder

Assistant Attorney General

Frankfort, Kentucky