Opinion
NO. 2018-CA-001406-MR
01-31-2020
SUSAN FRAZIER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy Alyette Durham II Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN L. WILSON, JUDGE
ACTION NO. 17-CR-00494 OPINION
AFFIRMING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Following a jury trial in the Henderson Circuit Court, Susan Frazier was found guilty of complicity to theft by unlawful taking under $500 and was sentenced to four months in jail, fined $500, and assessed court costs. She has filed this appeal challenging the imposition of the fine and costs. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Frazier argues that the record shows she was found indigent at all stages of the trial proceedings and any judgment imposing a fine and costs must be vacated.
As for the fine, the Commonwealth correctly notes that the judgment of conviction and sentence clearly states that the fine is suspended. There were no conditions stated in the judgment concerning the suspension of the fine. Despite the fact the trial judge stated at the sentencing hearing that she was not going to waive the fine pursuant to KRS 534.040(4) as requested by Frazier's court-appointed counsel but would consider suspending the fine when she reviewed the payment of court costs, the written judgment itself states that the fine was suspended.
Kentucky Revised Statutes.
We conclude that the trial court waived the fine pursuant to the statute regardless of its statements at the sentencing hearing. As the Commonwealth notes in its brief, the court "speaks only through written orders entered upon the official record." Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010).
Frazier made no mention in her brief that the fine had been suspended. As she has not raised an issue of whether a fine that is suspended is nevertheless an imposed fine, we decline to address the issue as it was not raised by Frazier nor briefed by the parties. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815-16 (Ky. 2004).
As for the imposition of court costs, Frazier's appellate counsel acknowledges that the issue is unpreserved and requests this Court's review for palpable error pursuant to RCr 10.26. Frazier first argues that the imposition of court costs on an indigent defendant violates KRS 534.040(4). We disagree. The language in the statute relates specifically to fines and does not mention court costs. "Where a statute is intelligible on its face, the courts are not at liberty to supply words or insert something or make additions which . . . cure an omission." Commonwealth v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000).
Kentucky Rules of Criminal Procedure. --------
Frazier's next argument revolves around her contention that she was indigent because she was found indigent at all stages of the trial proceedings and was provided the right of counsel, including counsel to prosecute this appeal. A court may, however, impose court costs upon a defendant deemed to be indigent and thus entitled to the services of a public defender; a finding of indigency is not the same as finding the defendant to be "a poor person" entitled to a waiver of court costs under KRS 23A.205(2). See Maynes v. Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012). KRS 23A.205(2) provides as follows:
The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, 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.Id.
Here, the trial court imposed court costs and made no finding that the defendant was a poor person in accordance with the statute. Furthermore, as the trial court was not asked to make that determination, "there is no error to correct on appeal." Nunn v. Commonwealth, 461 S.W.3d 741, 753 (Ky. 2015) (quoting Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014)).
The judgment of conviction and sentence of the Henderson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy Alyette Durham II
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky