Opinion
NO. 2015-CA-001166-MR
12-22-2016
BRANDON RICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Bashear Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, JUDGE
ACTION NO. 15-CR-00128 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: MAZE, TAYLOR, AND VANMETER, JUDGES. TAYLOR, JUDGE: Brandon Rice brings this appeal from the Boone Circuit Court's Final Judgment and Sentence of Imprisonment entered July 21, 2015, which followed an order denying his motion to withdraw guilty plea entered July 1, 2015. We affirm in part, and reverse in part.
I. BACKGROUND
On or about February 17, 2015, the Boone County Grand Jury indicted Rice on one count of burglary in the second degree, a class C felony, as well as being a persistent felony offender in the first degree. Rice was then arraigned in circuit court on February 25, 2015, where he was represented by a public defender. On that occasion, the trial court judge confirmed that Rice qualified for the services of a public defender, who was appointed and represented him throughout this proceeding.
On May 13, 2015, Rice entered into a negotiated guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), agreeing to plead guilty to burglary in the third degree, a class D felony. The persistent felony offender charge was dropped as part of the plea agreement and the burglary charge was amended down to a Class D felony. The negotiated plea specifically stated that the Commonwealth would recommend a sentence of three-years' imprisonment, as well as a $1,000 fine. At the hearing on May 13, the trial court conducted a very thorough colloquy. Rice acknowledged and confirmed the plea without any protest and made no complaint about the quality of his representation by appointed counsel. Nevertheless, before sentencing, Rice moved the court to withdraw his guilty plea. At the hearing on his motion on June 23, 2015, Rice's only basis for withdrawal of his plea was his belief he should be charged with criminal trespass instead of burglary. The trial court denied the motion to withdraw the guilty plea in a written order entered July 1, 2015, finding that Rice entered his guilty plea knowingly, intelligently, and voluntarily. On July 21, 2015, the trial court sentenced Rice to a term of three-years' imprisonment, a fine of $1,000, and court costs in the amount of $156. This appeal follows.
Rice raises two issues before this court on appeal. The first argument is that the trial court abused its discretion by denying his motion to withdraw his guilty plea. The second argument is that the assessment of a fine and court costs as part of his sentence was illegal. Our review proceeds accordingly.
MOTION TO WITHDRAW GUILTY PLEA
We review a trial court's decision to grant or deny a motion to withdraw a guilty plea under the abuse of discretion standard. Prater v. Com., 421 S.W.3d 380 (Ky. 2014). "The test of an abuse of discretion 'is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Anderson v. Com., 231 S.W.3d 117, 119 (Ky. 2007) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
The procedure for the withdrawal of a plea is set forth in Kentucky Rules of Criminal Procedure (RCr) 8.10, which states, in pertinent part, "[a]t any time before judgment the court may permit the plea of guilty or guilty but mentally ill, to be withdrawn and a plea of not guilty substituted." In order to succeed on a motion to withdraw a plea, "the movant must allege with particularity specific facts which, if true, would render the plea involuntary." Com. v. Pridham, 394 S.W.3d 867, 874 (Ky. 2012).
Rice's Alford plea in this case was voluntary as evidenced by the declarations in his motion that was executed by both Rice and his appointed counsel. The trial court conducted a lengthy and thorough colloquy at the May 13 hearing where Rice acknowledged his plea had been made voluntarily. Rice's subsequent motion to withdraw his guilty plea was filed on June 15 and failed to set forth any facts to support setting aside the plea. Nonetheless, the court conducted a hearing on June 23. At this hearing, Rice simply argued that he was intoxicated on the night of the crime and he should have been charged with criminal trespass rather than burglary. On cross-examination, he admitted that this argument had been reviewed with his attorney before entering his Alford plea on May 13. Rice presented no facts to the trial court to justify setting aside his plea. As the Kentucky Supreme Court recently stated, "[m]ere second thoughts, however, do not entitle one to relief from one's guilty plea." Pridham, 394 S.W.3d at 885.
As an intermediate appellate court, we are duty bound to follow Kentucky Supreme Court precedent. Supreme Court Rule 1.030(8)(a). The Supreme Court has clearly held that the denial of a motion to withdraw a voluntary guilty plea is within the trial court's sound discretion. Prater, 421 S.W.3d 380. The trial court's ruling will not be disturbed unless the decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Anderson, 231 S.W.3d 117. Having failed to set forth any factual basis to support the motion, the trial court below did not abuse its discretion in denying Rice's motion to set aside his Alford plea. Pridham, 394 S.W.3d 867. We therefore affirm his conviction as set out in the final judgment.
FINE AND COURT COSTS
(i) Fine
In conjunction with Rice's Alford plea, the Commonwealth recommended a three-year prison term and a $1,000 fine as a part of his sentence. The trial court assessed a $1,000 fine in its final judgment in accordance with the Commonwealth's recommendation that Rice did not object to below. However, as sentencing is jurisdictional, errors below are not waived by a defendant's failure to object before the trial court. Wellman v. Com., 694 S.W.2d 696 (Ky. 1985).
Kentucky Revised Statutes (KRS) 534.030 is entitled "Fines for Felonies" and provides:
(4) Fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.In this case, the record clearly reflects that Rice was represented by a public defender throughout the proceedings below and in this appeal. As a result of his representation, Rice had qualified as an indigent/needy person. See Travis v. Com., 327 S.W.3d 456 (Ky. 2010); Simpson v. Com., 889 S.W.2d 781 (Ky. 1994). As an indigent, KRS 534.030(4) expressly forbids the imposition of fines as part of a sentence. Accordingly, the trial court erred by ordering Rice to pay the $1,000 fine. We, therefore, reverse that part of the final judgment as to the imposition of the fine.
(ii) Costs
In addition to assessing a fine against Rice in the trial court's final judgment, the court also assessed court costs in the amount of $156. Rice objects due to his indigent status and asserts that the assessment of costs was illegal. This issue was also not preserved below but may be reviewed on appeal for palpable error. Travis, 327 S.W.3d 456.
We begin our analysis by again noting that Rice had been determined to be indigent at the outset of the case below. In reviewing this issue on appeal, we believe Miller v. Commonwealth, 391 S.W.3d 857 (Ky. 2013), is controlling. In Miller, the Supreme Court held that a defendant who was determined to be a statutorily "poor person" at the time of entry of the final judgment or immediately thereafter, is not subject to court costs. Miller, 391 S.W.3d 857 (citing Maynes v. Com., 361 S.W.3d 922, 929 (Ky. 2012)). As the court did in Miller, the trial court below found that Rice was a pauper or poor person pursuant to KRS 453.190 and KRS 31.110 for purposes of this appeal. This ruling was made nine days after entry of the final judgment. The only logical conclusion that we can make is that Rice was a poor person at the time of entry of the final judgment and court costs could not have been imposed as a matter of law. Miller, 391 S.W.3d 857; KRS 23A.205. We therefore also reverse that part of the final judgment imposing court costs in Rice's sentence.
In summation, we affirm Rice's conviction for burglary in the third degree but reverse that part of the final judgment imposing a fine and court costs.
For the foregoing reasons, the court affirms in part and reverses in part the Boone Circuit Court's Final Judgment and Sentence of Imprisonment.
MAZE, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION.
VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with so much of the majority opinion as affirms the circuit court's denial of Rice's motion to withdraw his guilty plea. I respectfully dissent from so much of the opinion as reverses the imposition of a fine and court costs.
Rice, with the benefit of counsel, negotiated a plea bargain that included a $1,000 fine. The Kentucky Supreme Court has held that a defendant's bargained-for-agreement to pay a fine is binding and enforceable. Davis v. Commonwealth, 2012-SC-000632-MR, 2014 WL 1514674 at *2-3 (Ky., Apr. 17, 2014). Further, as noted in Davis, the defendant's agreement to pay a $1,000 fine reasonably led the trial court to conclude that he was able to pay $156 court costs. Id. at *3. Notwithstanding that Davis is a non-published decision, the rationale expressed therein is sound. I would affirm the Boone Circuit Court in all respects. BRIEF FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Bashear
Attorney General of Kentucky Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky