Opinion
NO. 2011-CA-002246-DG
04-19-2013
COMMONWEALTH OF KENTUCKY APPELLANT v. JOHN MATTHEW HANLEY APPELLEE
BRIEFS FOR APPELLANT: Larry S. Roberts Fayette County Attorney Steven P. Stadler Special Assistant Attorney General BRIEF FOR APPELLEE: John Gerhart Landon Assistant Public Advocate Frankfort, Kentucky
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-XX-00035
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: John Matthew Hanley was convicted following a jury trial in the Fayette District Court on the offenses of operating a motor vehicle on a suspended or revoked operator's license and failure of an owner or operator to maintain required insurance, second offense or greater. The jury fixed Hanley's punishment at fines of $250.00 and $2,500.00, respectively. Hanley was also assessed court costs of $143.00. On Hanley's motion alleging he was indigent and thus not required to pay the fines, the District Court vacated the fines and court costs, citing Ladriere v. Commonwealth, 329 S.W.3d 278 (Ky. 2010) and Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010). The Commonwealth appealed to the Fayette Circuit Court which affirmed in part and reversed in part. We granted the Commonwealth's motion for discretionary review and now affirm.
Kentucky Revised Statutes (KRS) 186.620, a Class B misdemeanor.
Hanley was arrested on October 3, 2010, for operating on a suspended license and failure to maintain insurance on the vehicle he was operating. On May 31, 2011, the matter proceeded to a jury trial after unsuccessful plea negotiations. On the morning of trial, Hanley submitted proposed jury instructions setting forth the appropriate statutory penalty range for the charged offenses, including applicable jail time and fines. The Commonwealth did not tender proposed instructions. The jury found Hanley guilty of the charged offenses and recommended the punishment noted above.
On June 10, 2011, ten days after sentencing, Hanley filed a motion objecting to the imposition of fines and court costs, citing KRS 31.110, KRS 534.040(4), Ladriere and Travis, in support of his position. The Commonwealth filed a written response to the motion. In its written order entered on June 29, 2001, the District Court stated:
[t]his Court finds that although the Public Defender was appointed, the Defendant's current financial condition would enable him to pay at least a portion of his finesThe Commonwealth appealed the decision to the Fayette Circuit Court. It conceded the District Court had correctly vacated the court costs, but argued the fines imposed by the jury had erroneously been vacated.
and costs in small installments. The Court would not incarcerate him for nonpayment of fines without a finding that he was able to make payments. Nevertheless, the Court believes that the fines and costs must be set aside pursuant to Ladriere v. Commonwealth, and Travis v. Commonwealth.
The Circuit Court found the District Court had correctly vacated the $250.00 fine for operating on a suspended license, but determined it had incorrectly vacated the $2,500.00 fine for failure to maintain insurance. It reasoned the express language of KRS 534.040(4) prohibited the imposition of fines on Hanley as he had previously been declared indigent. However, it found the penalty imposed on the no insurance charge could not be vacated under KRS 534.040, as that statute did not apply to fines imposed for an "offense defined outside this code." The Circuit Court noted the Supreme Court of Kentucky defined the "code" used in KRS 534.040 as "the Kentucky Penal Code, KRS Chapters 500-534." Commonwealth v. Schindler, 685 S.W.2d 544 (Ky. 1985). The Circuit Court held that since Hanley's conviction for lack of insurance emanated from KRS 304.99-060, it was not a violation of the Penal Code, and the fines were therefore properly levied by the jury and improperly vacated by the District Court. It remanded the matter to the District Court for re-sentencing. The Commonwealth's motion for discretionary review was granted and this appeal followed.
KRS 534.040 sets forth the applicable fines for misdemeanor and violation convictions. Subsection 4 states "[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31."
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The sole issue properly before us is whether the Circuit Court erred in affirming the District Court's decision to vacate the $250.00 fine for operating on a suspended license. The Commonwealth alleges the courts below erroneously concluded KRS 534.040(4) immunizes indigent defendants from the responsibility to pay fines levied against them for their violations of the law. It relies primarily on the recent Supreme Court of Kentucky decision in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012), for the proposition that a finding of indigency "does not create blanket immunity" from the imposition of fines. We believe the Commonwealth has misconstrued the breadth of the Maynes decision and affirm the trial court.
In Maynes, the Supreme Court analyzed whether a prohibition existed on the imposition of court costs on a defendant who was qualified to receive the services of a public defender—that is, on one who is indigent. After a careful review of the applicable statutory schemes and relevant case law, the Supreme Court held court costs could be levied against an indigent defendant unless he qualified as a "poor person" as referenced in KRS 23A.205 (the "Court Costs Statute") and is "thus unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life." Maynes, 361 S.W.3d at 933. The Supreme Court differentiated this status from that of a "needy" defendant entitled under KRS 31.110 to the services of a public defender, and held a different calculus was to be used to determine the propriety of assessing court costs against convicted defendants. Nowhere in the Maynes opinion does the Supreme Court discuss or address the imposition of fines or other fees. Thus, contrary to the Commonwealth's vehement argument, the holding is inapplicable to the case at bar.
KRS 354.040(4) states in no uncertain terms that fines "shall not be imposed upon any person determined by the court to be indigent. . . ." Here, the record indicates Hanley was adjudged to be a needy person under KRS Chapter 31 and a public defender was appointed to represent him. Thus, it appears he qualifies as an indigent. See Travis. As a result, the Circuit Court correctly vacated the imposition of the $250.00 fine as it was bound by statute to do. We have examined the Commonwealth's additional arguments regarding waiver and public policy grounds for reinstating the jury's punishments and find them to be without merit, requiring no further discussion.
Finally, in his brief to this Court, Hanley attempts to argue the Circuit Court erred in reinstating the $2,500.00 fine on the no insurance charge. He claims he raised the issue in his response to the Commonwealth's motion for discretionary review and thus, it is properly before us. We disagree.
CR 76.20(5) permits a respondent to file a response to a motion for discretionary review which Hanley properly did. In his response, Hanley raised the additional allegation of error. However, the issue of the propriety of reinstating the $2,500.00 fine was not mentioned in the Commonwealth's motion. Hanley did not file a separate motion for discretionary review seeking relief on the alleged error, nor did he file a cross motion for review under CR 76.21. As such, the issue is not properly before us and we cannot consider it. Palmore v. Jones, 774 S.W.2d 434, 435 (Ky. 1989).
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
TAYLOR, JUDGE, CONCURS.
MOORE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MOORE, JUDGE, DISSENTING: Respectfully, I dissent because Hanley waived his statutory right under KRS 354.040(4) not to be fined. Regarding the charge of Operating a Motor Vehicle without a License, Hanley tendered the following jury instruction, which was submitted to the jury:
If you find the Defendant guilty under this instruction, you shall fix his punishment at confinement in the county jail for a period not to exceed 90 days, or at fine not to exceed $250, or at both confinement and fine, in your discretion.
The jury found Hanley guilty and imposed a $250 fine on him with no jail time. Pursuant to Carver v. Commonwealth, 328 S.W.3d 206, 213-14 (Ky. App. 2010), I believe the fine was properly imposed as Hanley received that which he asked. As in Carver, "[n]ow that the fine has been imposed . . . [Hanley] wishes to invoke the statute which would ordinarily have prohibited it in the first place." Id. "This was apparently a strategic decision—the possibility [he] would receive only a fine was a risk [he] was willing to take." Id. Accordingly, I would reverse on this issue. BRIEFS FOR APPELLANT: Larry S. Roberts
Fayette County Attorney
Steven P. Stadler
Special Assistant Attorney General
BRIEF FOR APPELLEE: John Gerhart Landon
Assistant Public Advocate
Frankfort, Kentucky