Opinion
NO. 2013-CA-001031-MR
02-13-2015
MORGAN D. WALLACE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Morgan D. Wallace, Pro se Lagrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 07-CR-00170
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Morgan D. Wallace appeals pro se from the McCreary Circuit Court's order denying his motion to convert a fine to a definite jail term to run concurrent with his present ten-year sentence. For the following reasons, we reverse and remand.
On April 8, 2008, Wallace pled guilty to first-degree robbery. On June 20, 2008, the trial court sentenced Wallace to ten years in prison. The trial court imposed no fines, per KRS 534.030(4), because Wallace was found to be indigent. Still, the trial court ordered "that within 60 days following his release from custody that he is responsible to pay $125 court costs, *restitution of $400 plus a 5% collection fee of $20, and $450 Public Advocate fee, a total of $995 payable at the rate of $100 each month until paid in full." Five years later, on April 17, 2013, Wallace filed a motion pursuant to RCr 10.26 to convert his "fine" into a jail term. On May 22, 2013, the trial court summarily denied the motion. This appeal follows.
Kentucky Revised Statutes.
Wallace's sentencing hearing was held on June 3, 2008, at which time he informed the court that he would be unable to pay restitution, court fees, and the public defender's fee. However, Wallace never appealed his sentence on those grounds or took any further action until his motion filed on May 22, 2013.
Kentucky Rules of Criminal Procedure.
Although Wallace refers to the fees assessed as "fines," the record shows the court ordered Wallace to pay court costs, restitution, and a fee for his public advocate. Accordingly, our review on appeal concerns the propriety of imposing court costs, restitution, and a public advocate fee.
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Wallace did not preserve this issue or directly appeal from his final judgment; therefore we will review it for palpable error. See Butler v. Commonwealth, 367 S.W.3d 609, 615 (Ky. App. 2012) (imposition of court costs as part of the sentence is reviewable on appeal, even though not preserved) (citing Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985)).
In Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme Court discussed the palpable error rule of RCr 10.26, and stated
an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006).283 S.W.3d at 668. Under the clear holding of Jones, palpable error relief is not available unless three conditions are present. The error must have (1) been clear or plain under existing law, (2) been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity or public reputation of the proceeding to have been jurisdictionally intolerable.
For many years courts have found it to be palpable error to impose court costs and fines on indigent defendants. See Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987). However, the Kentucky Supreme Court recently held that the language of KRS 31.110(1)(b), which provides for the waiver of costs for indigent defendants, no longer controlled over KRS 23A.205(2), which affords the trial court discretion in imposing court costs. See Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). Thus, a court has discretion to impose costs on an indigent defendant "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 the court costs in the foreseeable future." KRS 23A.205(2). The court costs statute, KRS 23A.205, adopts the following "poor person" definition contained in KRS 453.190(2): "[a] 'poor person' means a person who is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing." The Maynes Court held,
the "poor person" standard in KRS 23A.205 is distinguishable from the "needy person" standard in KRS 31.100 because the latter focuses only on the inability "to provide for the payment of an attorney and all other necessary expenses of representation." . . . KRS 23A.205(2) directs the court to consider both the defendant's ability to pay at present and in "the foreseeable future."
. . . .
If, at the time of the initial application or subsequently, there is substantial reason to believe that the defendant, although in need of counsel, has the ability to contribute financially to his defense or to pay court costs, the appointment of counsel does not preclude an order requiring the defendant to pay according to his ability to
do so. Upon a defendant's conviction, however, KRS 23A.205 requires imposition of court costs unless the defendant qualifies as a "poor person" and thus is unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life.Id. at 929, 933.
At the time of his sentencing, no determination was made regarding Wallace's status as a "poor person." This court has previously held that imposition of court costs when the court made no findings on the issue of whether the defendant was a "poor person" under KRS 23A.205 was palpable error in light of Maynes. McElroy v. Commonwealth, 389 S.W.3d 130, 140 (Ky. App. 2012). Further, if a defendant is deemed a "poor person" and thus unable to pay court costs, imposing a public defender's fee is also improper. Miller v. Commonwealth, 391 S.W.3d 857, 871 (Ky. 2013) ("A person who cannot pay court costs surely cannot pay a partial public defender fee."). We believe the same logic applies to restitution. Consequently, findings regarding Wallace's financial situation and his ability to pay court costs, restitution and public defender fees are necessary to prevent manifest injustice.
For the above reasons, the order of the McCreary Circuit Court is reversed, and the case is remanded with instructions to conduct a hearing to determine whether Wallace is a "poor person" as defined in KRS 453.190(2).
ALL CONCUR. BRIEF FOR APPELLANT: Morgan D. Wallace, Pro se
Lagrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky