FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk's office within ten
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https://www.gaappeals.gov/rules
July 28, 2026
In the Court of Appeals of Georgia
A26A1033. KILBOURNE v. THE STATE.
PADGETT, Judge.
Nicolas Michael Kilbourne entered a negotiated guilty plea to two counts of
burglary in the first degree. As part of that agreement, the trial court imposed
restitution as a special condition of probation. Kilbourne later filed a motion to
modify his sentence, which the trial court denied after a hearing. For the following
reasons, we affirm.
The relevant facts are not in dispute. Kilbourne and his co-defendant,
Chadwick Chase Dunn,1 were indicted in connection with three burglaries of the
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Dunn was also indicted for burglary in the first degree of another victim’s residence with Evan Dawton Taylor and interference with government property. Dunn and Taylor are not parties to this appeal.
same victim’s residence occurring on three separate dates in July 2024. Count one
charged Dunn alone with the first burglary, Count three charged Kilbourne and
Dunn both with the second burglary, and Count five charged Kilbourne alone with
the third burglary. Counts two and four are not germane to this case.
Pursuant to a negotiated plea agreement, Kilbourne pleaded guilty to the two
counts of burglary in the first degree for participation in the second and third
burglaries of the victim’s residence. In connection with the plea agreement,
Kilbourne executed a guilty plea checklist acknowledging his obligation to pay
restitution, although no specific restitution amount was listed on that form. However,
at the plea hearing, the State recited the terms of the negotiated sentence,
recommending that Kilbourne “pay restitution in the amount of $10,773.78 to the
victim. That will be paid joint and several with his co-defendant, … Dunn.” The trial
judge then asked Kilbourne, “You heard the recommendation that the State made.
Is that the recommendation that you understood the State would make?” Kilbourne
responded, “Yes, Your Honor.” Kilbourne then entered his guilty plea, and the trial
judge found that the guilty plea was freely, voluntarily, and knowingly entered, and
there was a factual basis for it. The trial court followed the State’s sentence
recommendation, sentencing Kilbourne to two concurrent twenty-year terms of
probation, 180 days in a probation detention center, and several special conditions of
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probation including the $10,773.78 in restitution to be paid jointly and severally with
Dunn.
Kilbourne later moved to modify his sentence, seeking, in part, a reduction in
the restitution amount. At the hearing on the motion, Kilbourne’s plea counsel
testified that he had explained the concept of joint and several liability to Kilbourne
during plea negotiations, but he did not recall whether he advised Kilbourne of his
ability to have a restitution hearing. Kilbourne did not testify at the hearing. The trial
court denied the motion, and this appeal followed.
“Whether to grant a motion to correct a sentence under OCGA § 17-10-1(f )
lies within the discretion of the trial court.” Richardson v. State, 334 Ga. App. 344,
346 (779 SE2d 406) (2015). “So long as the sentence imposed by the court falls
within the parameters prescribed by law, we will not disturb it.” Id.
Kilbourne argues that the restitution provision of his sentence is void because
it includes losses attributable to a burglary in which he did not participate. Although
Kilbourne agreed to the restitution provision as part of his negotiated plea, a
“defendant’s acquiescence to an illegal sentence, either through plea negotiations or
a failure to object to the sentence, cannot render an otherwise illegal sentence valid
through waiver.” Sumner v. State, Ga. App. 308, 312(1) (643 SE2d 831) (2007)
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(punctuation omitted)). Accordingly, we first consider whether the restitution
condition imposed by the trial court was authorized by law.
We conclude that it was. OCGA § 17-14-7(c) governs the allocation of
restitution among multiple offenders and provides that, where more than one
offender has contributed to a victim’s loss, “the court may make each offender liable
for payment of the full amount of restitution or may apportion liability among
offenders to reflect the contribution to the victim’s loss and economic circumstances
of each offender.” OCGA § 17-14-7(c). The statute expressly authorizes a trial court
either to impose joint and several liability or to apportion restitution according to
each offender’s relative responsibility for the victim’s losses.
Here, the indictment alleged that Kilbourne and Dunn committed one
burglary of the victim’s residence together, and that each defendant separately
committed another burglary of that same residence. Both defendants therefore
contributed to the victim’s losses. Under OCGA § 17-14-7(c), the trial court was
authorized to require either defendant to pay the full amount of restitution or to
apportion liability between them. Consistent with the negotiated plea agreement, the
trial court here chose to impose liability for restitution jointly and severally upon
Kilbourne and Dunn. That allocation of liability is expressly authorized by OCGA §
17-14-7(c), so the restitution condition is not void. See Hettrick v. State, 334 Ga. App.
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115, 119(3) (778 SE2d 369) (2015) (trial court was not required under OCGA § 17-14-7(c) to apportion liability to reflect the defendant’s level of contribution to the
victim’s loss).
We turn to Kilbourne’s contention that the restitution amount is unlawful
because it included losses attributable to the first burglary, an offense with which he
was not charged. Under OCGA § 17-14-9, “[t]he amount of restitution ordered shall
not exceed the victim’s damages.” The record reflects that the parties negotiated and
agreed upon restitution in the amount of $10,773.78 before sentencing. Although the
record does not disclose the method by which that figure was calculated, nothing in
the record reflects that it exceeded the victim’s damages. More to the point,
Kilbourne argues that “in ... Kilbourne’s case, forty-two items were found at his home
during the execution of [a] search warrant” and that “[h]is co-defendant[ ] also
committed another separate burglary of [the victim’s] home.” (Emphasis added.)
And he contends that “since the order of restitution is joint and several with …
Kilbourne’s co-defendant[ ], the amount of restitution is a total amount for all
burglaries committed at [the victim’s] home.” Kilbourne has pointed to no evidence
establishing that the agreed restitution amount represented losses attributable to the
first burglary, much less the third burglary. Nor does the record reveal how the
parties arrived at the agreed amount. In other words, Kilbourne has pointed to
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nothing in the record showing that he (or Dunn for that matter) agreed to pay
restitution for something other than the crime they committed together. In the
absence of such evidence, and where the restitution amount was negotiated and
accepted as part of the plea agreement, Kilbourne has failed to demonstrate that the
restitution award exceeded the losses for which the trial court was authorized to
order restitution.
This Court has repeatedly recognized that a negotiated guilty plea is
contractual in nature. See, e.g., Gilbert v. State, 245 Ga. App. 544, 546(1) (538 SE2d
104) (2000). And nothing in the record suggests that Kilbourne misunderstood the
amount of restitution he agreed to pay or the nature of his obligation under the
negotiated plea. Under these circumstances, Kilbourne may not now seek to avoid
that obligation simply because he has become dissatisfied with the bargain he
accepted. See Syms v. State, 244 Ga. App. 21, 22–23(3) (534 SE2d 502) (2000);
Phillips v. State, 236 Ga. App. 744, 746–47(1) (512 SE2d 32) (1999).
Kilbourne also suggests that the trial court erred by imposing restitution
without first conducting a separate restitution hearing. We disagree. OCGA § 17-14-7(b) provides that, “[i]f the parties have not agreed on the amount of restitution prior
to sentencing, the ordering authority shall set a date for a hearing to determine
restitution.” Thus, a restitution hearing is required only when the parties have not
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reached an agreement regarding restitution before sentencing. See Cameron v. State,
295 Ga. App. 670, 670-72(2) (673 SE2d 59) (2009). Here, the record establishes that
the parties did agree upon the restitution amount before sentencing. Because the
parties agreed to the amount of restitution prior to sentencing, there was no need for
the trial court to conduct a separate restitution hearing.
The restitution provision imposed as part of the negotiated sentence was
authorized by OCGA § 17-14-7(c), Kilbourne knowingly and voluntarily agreed to the
restitution amount before sentencing, and no separate restitution hearing was
required under OCGA § 17-14-7(b). Because Kilbourne has failed to demonstrate that
his sentence was unauthorized by law or that the trial court otherwise abused its
discretion in denying his motion to modify sentence, we affirm.
Judgment affirmed. McFadden, P. J., and Watkins, J., concur.
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