Opinion
NO. 2015-CA-001791-MR
06-02-2017
GEORGE SAMUEL FULTZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE BETH LEWIS
ACTION NO. 14-CR-00142 OPINION
AFFIRMING IN PART, AND REVERSING IN PART
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BEFORE: COMBS, MAZE, AND STUMBO, JUDGES. MAZE, JUDGE: Appellant, George Samuel Fultz, appeals from an Order of Judgment and Sentence following his conviction on drug and traffic-related charges. He argues that the Rowan Circuit Court erred when it overruled his motion to suppress evidence seized as the result of a traffic stop, the initiation of which Fultz contends lacked sufficient reasonable suspicion and probable cause. Fultz also challenges the trial court's order that he pay fines because the court previously found Fultz to be indigent for purposes of representation by the Department of Public Advocacy (DPA).
We find substantial evidence to support the trial court's conclusion that the officer had reasonable suspicion of criminal activity to support the traffic stop. Furthermore, we agree with the trial court that the officer did not unreasonably prolong the traffic stop during the brief period before Fultz gave permission to search the vehicle. Therefore, the trial court properly denied his motion to suppress. However, we must conclude that the trial court was not authorized to impose fines on Fultz's misdemeanor convictions given his indigent status. That being said, the trial court was authorized to impose court costs on Fultz. Hence, we affirm the judgment of conviction, but reverse on the sentence imposing the fines.
Background
The facts of this case are not in dispute. On May 12, 2015, the Rowan Circuit Court conducted an evidentiary hearing on Fultz's motion to suppress certain evidence seized following a traffic stop. The sole witness at this hearing was Kentucky State Police Trooper Steve Mirus. The following facts arose from his uncontroverted testimony.
The preceding July 30, Trooper Mirus was conducting traffic patrol when he observed Fultz drive past him. Trooper Muris had prior knowledge of Fultz, gathered in part from complaints in the area regarding his alleged sale of heroin. These complaints caused Trooper Mirus to stop Fultz three weeks prior to the traffic stop which is the subject of this appeal. During the prior traffic stop, Trooper Mirus noticed the tinting on Fultz's truck and told Fultz something along the lines of that he knew Fultz was dealing in drugs and that he was going to catch him. However, a search of Fultz's vehicle at that time yielded nothing illegal.
On July 30, Trooper Mirus again pulled out behind Fultz after he "recognized who it was." While behind Fultz's truck, Trooper Mirus could see that Fultz was wearing a seatbelt; however, he "could not see the seatbelt strap over the passenger's shoulder." Based upon this and the vehicle's window tinting, Fultz initiated a traffic stop of Fultz's truck.
At the outset of the traffic stop, when Trooper Mirus approached the driver's window, he saw that Fultz's passenger was, in fact, wearing her seatbelt. He then asked Fultz if he had any narcotics in the vehicle. Fultz answered in the negative. Trooper Mirus requested permission to search Fultz's truck, and Fultz gave verbal consent. This search yielded two bags of heroin inside the gear shift of Fultz's truck. At the scene, officers determined that the bags contained 4.7 grams. Fultz admitted to buying four grams of heroin for $600 and showed officers where in the passenger compartment he had hidden heroin straws used to snort heroin.
Fultz was charged with and convicted of first-degree trafficking in a controlled substance, possession of drug paraphernalia, and excessive/improper window tint. The trial court appointed the DPA to represent Fultz based upon his assertion of indigence. Following trial, and based upon his conviction, the trial court imposed a sentence of ten years' imprisonment and ordered Fultz to pay fines and court costs. At sentencing, Fultz's attorney requested that the trial court suspend the $100 fine imposed for the charge of excessive/improper window tint. The trial court denied this request and ordered Fultz to pay the $100 fine within one year of his release from prison. Additionally, the trial court imposed a $500 fine for his conviction on possession of drug paraphernalia, and the court ordered Fultz to pay this fine within eighteen months of his release. Fultz now appeals from the November 19, 2015, judgment of conviction and sentence.
Analysis
Fultz appeals two orders of the trial court: the order overruling his motion to suppress the evidence found as a result of what he contends was an illegal traffic stop; and the order requiring him to pay fines and court costs when the trial court had found him to be indigent for purposes of representation earlier in the proceedings. We address each of Fultz's arguments in turn.
I. Suppression of Evidence Seized at the Traffic Stop
On appeal, Fultz challenges the trial court's finding of fact that sufficient probable cause for the traffic stop arose from Trooper Mirus's "belief" that Fultz's passenger was not wearing her seatbelt. He contends that Trooper Mirus was, in fact, unsure whether she was wearing her seatbelt and that the distinction renders the stop legally invalid.
Our review of such issues follows the two-step process outlined in Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) and Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). We first ask whether substantial evidence exists in the record to support the trial court's findings of fact. Adcock, 967 S.W. 2d at 8. We conduct this portion of our review under the clearly erroneous standard. See Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001) (citing Ornelas, 517 U.S. 690 at 691). If substantial evidence supports the trial court's findings, the trial court's findings of fact are conclusive, and "the question necessarily becomes, 'whether the rule of law as applied to the established facts is or is not violated.'" Adcock, 967 S.W.2d at 8 (citing Ornelas at 697). This latter stage of our review is conducted de novo, as it is a question of law. See Banks at 349.
"'[S]topping an automobile and detaining its occupants constitute a "seizure"' under the Fourth Amendment." Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (quoting Delaware v. Prouse 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d, 660 (1979)). Therefore, constitutional protections apply. "A police officer may constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009) (citing Terry v. Ohio, 392 U.S.1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Put another way, an officer must have "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." U.S. v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 621 (1981).
As support for stopping a suspect, an officer must be able to point to "objective and articulable facts" supporting his reasonable suspicion. Commonwealth v. Morgan, 248 S.W.3d 538, 540 (Ky. 2008) (citations omitted). However, the officer's suspicion or belief does not have to be correct or proven more likely true than false. Williams v. Commonwealth, 147 S.W.3d 1, 7 (Ky. 2004). Furthermore, the officer's subjective or ulterior motivation for the traffic stop does not make unconstitutional an otherwise valid stop. Whren v. U.S., 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). See also Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001).
Fultz's primary challenge to the trial court's decision against suppressing the evidence seized from his vehicle is that the trial court's finding that Trooper Mirus "believed" Fultz was committing a seatbelt violation was unsupported by the evidence, and, therefore, inconclusive. Fultz argues that the distinction between Trooper Mirus being unable to observe the seatbelt strap and believing Fultz's passenger wasn't wearing it is important to our analysis on the question of "reasonable suspicion." He asserts that Trooper Mirus simply did not know whether a seatbelt violation was occurring "just as he did not know whether other cars on the road contained marijuana, convicted felons carrying firearms, or drivers with suspended licenses." This is not quite a fair or accurate comparison.
While Trooper Mirus's initial testimony indeed expressed his mere doubt as to whether Fultz's passenger was wearing her seatbelt, a statement he added later in the suppression hearing supported the trial court's finding. The trial court asked Trooper Mirus, "[s]o, you pulled [Fultz] over based upon the seatbelt violation, or your belief that there was a seatbelt violation?" Trooper Mirus answered in the affirmative. Therefore, unlike the great unknown regarding other cars on the road, Trooper Mirus observed Fultz's vehicle and its occupants, and he testified that, based on this observation, he could see Fultz's shoulder strap but not his passenger's. This uncontroverted testimony constitutes substantial evidence that Trooper Mirus stopped Fultz based upon more than a mere doubt, but his "belief" that a seatbelt violation was occurring. The Trooper's testimony in response to the court's question provided sufficient clarity to render the trial court's ultimate finding of fact conclusive; and it is now our task to determine whether the trial court properly applied the law to the facts.
Fultz contends that Trooper Mirus lacked reasonable suspicion to initiate the traffic stop; or, in the alternative, that his inquiry should have ended when he saw that Fultz's passenger was, in fact, wearing her seatbelt. To Fultz's former point, "[t]he occurrence of a traffic violation is recognized as sufficient justification to warrant a stop of a motor vehicle." Garcia v. Commonwealth, 185 S.W.3d 658, 662 (Ky. App. 2006). Furthermore, the suspected failure of Fultz's passenger to wear her seatbelt is an objective and articulable fact supporting a reasonable suspicion that a crime was ongoing. Trooper Mirus had sufficient and reasonable suspicion to stop Fultz. We shall devote more analysis to what occurred after Trooper Mirus arrived at Fultz's driver-side window.
"[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). We interpret Fultz's argument as one that Trooper Mirus prolonged the stop "longer than was necessary to achieve the purpose of the stop." Johnson v. Commonwealth, 179 S.W.3d 882, 885 (Ky. App. 2005) overruled in Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016).
Any prolonging of the stop beyond its original purpose is unreasonable and unjustified, and there is no de minimis exception to the rule that a traffic stop cannot be prolonged for reasons unrelated to the purpose of the stop. Davis, 484 S.W.3d at 294 (citing Rodriguez v. U.S., ___ U.S. ___, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015)). The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission" - to address the traffic violation that warranted the stop, and attend to related safety concerns. Rodriquez, 135 S. Ct. at 1615 (citing Caballes, 543 U.S. at 407-08, 125 S. Ct. at 837). The scope of the detention must be carefully tailored to its underlying justification, and any unrelated inquiries may last no longer than is necessary to effectuate the purpose of the stop. Id.
Considering the totality of the circumstances surrounding, and arising during, the stop, Trooper Mirus did not unreasonably prolong his seizure of Fultz. Beyond determining whether to issue a traffic ticket, an officer's mission includes "ordinary inquiries incident to [the traffic] stop." Caballes, 543 U.S. at 408, 125 S. Ct. 834. Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. Prouse, 440 U.S. at 658-60, 99 S. Ct. at 1398-99. Consequently, Trooper Mirus was not required to end the traffic stop immediately upon seeing that Fultz's passenger was wearing her seatbelt. Furthermore, Trooper Mirus testified that he also stopped the vehicle to determine whether the window tinting was excessive.
Therefore, Trooper Mirus was entitled to continue the traffic stop to check Fultz's license, registration, and insurance status, and to determine whether the window tinting was excessive. Once Fultz gave consent to search the vehicle, Trooper Mirus properly continued the stop during the time it took to conduct the search. Since the stop was not unreasonably prolonged, the trial court did not err by denying Fultz's motion to suppress the evidence seized during the subsequent search.
II. Imposition of Fines and Court Costs
Fultz next challenges the trial court's imposition of fines and costs upon Fultz for the misdemeanor charges of which he was convicted. Fultz argues that Kentucky Revised Statutes (KRS) 534.040 precluded imposition of fines because the trial court had determined that he was indigent. We note that Fultz did not preserve this issue for appeal at sentencing. However, Fultz's argument on this point is that the trial court's "sentencing decision is contrary to statute . . . ." Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011) (citing Ware v. Commonwealth, 34 S.W.3d 383 (Ky. App. 2000)). As such, we are "not bound to affirm an illegal sentence just because the issue of the illegality was not presented to the trial court." Jones, 382 S.W.3d at 27. On the contrary, it is within our "inherent jurisdiction to cure such sentencing errors . . . ." Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) (reversing a trial court's imposition of fines and costs upon an indigent defendant.). While the issue is unpreserved, we possess jurisdiction to consider its merits, and palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26 review is inapplicable.
We would be remiss if we did not mention that our Supreme Court will consider a very similar issue shortly in a cased styled Commonwealth v. Moore, 2016-SC-000275. This fact was the subject of a well-pled motion to hold Fultz's appeal in abeyance. However, given that the Supreme Court only granted discretionary review in Moore on this past March 15, it could be some time before Fultz's appeal would be resolved if held in abeyance pending the outcome in Moore. Given the circumstances, we see no reason to delay disposition of Fultz's appeal. As Fultz's counsel asserted in opposing the Commonwealth's motion, the parties are free to seek discretionary review; and if our analysis or decision in the present case does not track that in the Supreme Court's pending decision in Moore, we are confident the right result will be reached without having unduly delayed Fultz's present appeal in the process.
KRS 534.040 permits trial courts to impose fines for misdemeanor and violations in lieu of, in addition to, or as an alternative to, imprisonment. KRS 534.040(1). The statute goes on to state, "[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." KRS 534.040(4). Fultz argues that the latter provision precluded imposition of fines against him for the misdemeanors of which he was convicted. The Commonwealth contends that, because the misdemeanors in question were drug and traffic offenses, lying outside the penal code of which KRS 534.040 is a part, that provision did not apply and the trial court properly imposed the fines.
Kentucky's case law, reported and unreported, is replete with similar challenges to the imposition of fines. See Roberts v. Commonwealth, 410 S.W.3d 606 (Ky. 2013) (Imposition of $1,500 fine for firearm and drug convictions was erroneous in light of defendant's indigent status.); Wright v. Commonwealth, 391 S.W.3d 743 (Ky. 2012) (Imposition of fines for assault and drug charges were erroneous after trial court found defendant to be indigent.); and Carver v. Commonwealth, 328 S.W.3d 206 (Ky. App. 2010) (Trial court did nor err in imposing fines for child abuse and assault charges, despite defendant's indigent status.). Specifically, the Commonwealth points to Commonwealth v. Schindler, 685 S.W.2d 544 (Ky. 1984), which it says stands for the proposition that KRS 534.040 does not apply to crimes lying outside the Kentucky criminal code. The Commonwealth misinterprets Schindler and KRS 534.040.
KRS 534.040(2) states the maximum fines for each class of misdemeanors. However, the statute begins with the qualification, "[e]xcept as otherwise provided for an offense defined outside this code . . . ." The Commonwealth takes this phrase to preclude KRS 534.040's application to any crime "defined outside [the criminal] code . . . ." However, the plain language of the statute, and even the phrase in question, demonstrates that it has application to misdemeanors lying inside and outside the criminal code. The sole exception is misdemeanors which have fines and penalties provided for them elsewhere in statute.
This reading finds support in the plentiful case law we cited supra. The Supreme Court's decisions in Roberts and Wright applied the prohibition of KRS 534.040(4) to drug and traffic crimes alike, misdemeanors lying both within and outside the criminal code and having no other fine provided under a separate statute. Even in Schindler, upon which the Commonwealth relies, the Court made this crucial distinction. The Court did not say that KRS 534.040 only applies to crimes proscribed in the penal code. Rather, the Court held that the maximum fines provided for in the statute "[do] not apply where a different fine is 'otherwise provided for an offense defined outside this code.'" Schindler, 685 S.W.2d at 545 (quoting KRS 534.040 (emphasis in original)). The Commonwealth is mistaken in its reliance on Schindler, and in its assertion that KRS 534.040(4) has no application to Fultz's convictions.
KRS 534.040 applies, and its express language renders improper the imposition of fines on Fultz's misdemeanor convictions. The trial court determined Fultz to be indigent for the purposes of legal representation and KRS Chapter 31. Therefore, it was reversible error to impose fines.
Fultz also asserts that the trial court erred when it imposed court costs of $170.50 pursuant to KRS 23A.205(2) . As this issue is also unpreserved for appeal, we must look to whether the trial court's sentence was indeed "illegal," granting us jurisdiction to correct it under the analysis we employed supra. "The assessment of court costs in a judgment fixing sentencing is illegal only if it orders a person adjudged to be 'poor' to pay costs." Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014) (emphasis in original).
KRS 23A.205(2) requires the imposition, or "taxation," of court costs "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay court costs in the foreseeable future." --------
Unlike the statute governing misdemeanor fines, that a person is "indigent" for purposes of Chapter 31 does not guarantee that he is a "poor person" for purposes of imposition of court costs. See Reynolds v. Commonwealth, 393 S.W.3d 607, 613 (Ky. App. 2012). Though this may seem like semantics, it is an important and established legal distinction. In Spicer, where the trial court appointed the defendant a public defender and found him to be a "pauper" for purposes of appeal, the Supreme Court nevertheless held,
[a] defendant who qualifies as "needy" under KRS 31.110 because he cannot afford the services of an attorney is not necessarily "poor" under KRS 23A.205. Thus, simply because Appellant was represented by a public defender does not mean he is necessarily exempt from court costs. Because the trial judge's decision regarding court costs was not inconsistent with any facts in the record, the decision does not constitute error, "sentencing" or otherwise . . . .442 S.W.3d at 35 (citation omitted). Though Fultz argues it should not, the reasoning the Supreme Court employed in Spicer must control. Nothing in the record belies the trial court's decision to impose court costs. The trial court in this case made no finding as to Fultz's status as a "poor person" pursuant to KRS 23A.205, nor was it asked to do so. Therefore, we are not obligated to "correct" that portion of Fultz's sentence. The imposition of court costs is affirmed.
Conclusion
As discussed above, Trooper Mirus had a reasonable suspicion to initiate the stop of Fultz's vehicle based upon the perceived seat-belt and window-tinting violations. We are concerned by Trooper Mirus's admission that he was looking for a reason to stop Fultz. But beyond the initial credibility determination, which is the responsibility of the trial court, Trooper Mirus's subjective motivations play no part in determining whether the stop was reasonable. We also conclude that Trooper Mirus did not unreasonably prolong the stop during the brief period after he determined that the passenger was wearing her seatbelt but before Fultz consented to the search. Therefore, the trial court properly denied Fultz's motion to suppress evidence recovered during the search of his vehicle.
With respect to the imposition of fines and costs, we must conclude that current Kentucky law does not authorize the imposition of fines upon a defendant previously found to be indigent. However, a defendant's status as an indigent will not necessarily preclude the imposition of court costs. While this issue was not preserved for appeal, we conclude that the trial court erred by imposing the fines, but the trial court did not err by imposing court costs on him.
Accordingly, we affirm the judgment of conviction by the Rowan Circuit Court, but reverse the sentence imposing fines on Fultz's misdemeanor convictions.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Frankfort, Kentucky