Opinion
NO. 2010-CA-001084-MR
11-02-2012
JASON SCOTT LUCAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Annie O'Connell Assistant Public Defender Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 10-CR-000231
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: At issue is whether the Jefferson Circuit Court erroneously ordered Appellant Jason Lucas, an indigent person, to pay court costs. Because the circuit court failed to ascertain whether Lucas was a "poor person" as defined by Kentucky Revised Statute (KRS) 453.190(2) prior to imposing court costs, we reverse and remand for additional proceedings.
I. Facts and Procedure
In January 2010, Lucas was indicted on one count of second-degree burglary. The circuit court found Lucas to be indigent, and appointed a public defender to represent him.
On April 29, 2010, Lucas accepted the Commonwealth's offer of, and pleaded guilty to, the charge of three-degree burglary. In exchange for his plea, the Commonwealth recommended pretrial diversion. Following a Boykin colloquy, the circuit court accepted Lucas's guilty plea.
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
Lucas waived a final sentencing hearing, and the circuit court verbally sentenced Lucas to pretrial diversion and ordered him to pay court costs in the amount of $130.00 within six months. Lucas orally objected to the imposition of court costs. He argued he was unemployed because, until recently, he was participating in the home incarceration program, but was looking for employment.
The circuit court's written order granting pretrial diversion was entered on May 5, 2010. The circuit court sentenced Lucas to two years imprisonment diverted for three years and formally ordered Lucas to pay court costs.
Thereafter, by written motion, Lucas objected to the imposition of court costs and sought a waiver of those costs due to his indigence. The circuit court refused to waive court costs, but extended the time by which Lucas had to pay the costs ordered from six months to five years. Lucas promptly appealed.
II. Analysis
Court costs are a form of punishment and are therefore a "part of the sentence imposed in a criminal case." Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010). "Sentencing is jurisdictional[.]" Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). It is not subject to waiver, and "may be raised for the first time on appeal." Id.; Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985).
Lucas's indigent status is not in dispute. The circuit court appointed a public defender to represent Lucas during all trial court proceedings, and thereafter granted Lucas's motion to proceed in forma pauperis on appeal. Lucas argues that his indigence necessarily makes the circuit court order to pay court costs erroneous as contrary to KRS 23A.205(2) and KRS 31.110(1)(b).
It has long been the rule in this Commonwealth that court costs may not be imposed on an indigent defendant. See Edmonson v. Commonwealth, 725 S.W.2d 595, 596 (Ky. 1987) (reversible error to impose court costs on an indigent defendant); Ladriere v. Commonwealth, 329 S.W.3d 278, 283 (Ky. 2010) (same); Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010) (palpable error to impose court costs on an indigent defendant). However, our Supreme Court recently re-examined its long-standing rule in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). Before turning to Maynes, a brief review of the relevant statutory provisions is in order.
KRS 31.110(1) explains a "needy person" - commonly referred to as an indigent person - is entitled to legal representation and the circuit court "shall waive all costs" for that person. Likewise, KRS 23A.205(2) provides all convicted persons are obligated to pay court costs unless found to be a "poor person" as defined by statute. A "poor person" is one "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." KRS 453.190(2).
In Maynes, the Supreme Court mitigated its hard-and-fast rule shielding indigent persons from court costs. 361 S.W.3d at 927-32. The Court reasoned that "'need' is a matter of degree and that defendants eligible for DPA[] representation may nevertheless be required to contribute to their defense or to pay court costs if the court determines that they are able to do so." Id. at 928. The Court ultimately distinguished between two categories of persons: (1) a "needy" (i.e., indigent) person under KRS 31.110 who is unable to pay for legal services; and (2) a "poor" person under KRS 23A.250 who is unable to pay court costs. Id. at 929. The Court emphasized that "a person may qualify as 'needy' under KRS 31.110 because he cannot afford the services of an attorney yet not be 'poor' under KRS 23A.205[.]" Id. Of course, a person is only "poor," the Court explained, if he lacks the ability "to pay court costs without 'depriving himself or his dependents of the necessities of life, including food, shelter or clothing.'" Id. (quoting KRS 453.190(2)). The Court further cautioned that "[w]ithout some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper." Id.
Department of Public Advocacy
In sum, if a defendant is "needy" (indigent) but not "poor," the circuit court may impose court costs on that defendant. Id.; Smith v. Commonwealth, 361 S.W.3d 908, 921 (Ky. 2012) ("Courts may now impose court costs on an indigent defendant, 'unless the court finds that the defendant is a poor person as defined by KRS 453.190(2)[.]'" (Citation omitted)). On the other hand, if an indigent defendant is also found to be "poor," the circuit court is prohibited from imposing court costs. Maynes, 361 S.W.3d at 929.
Here, prior to imposing court courts on Lucas, the circuit court issued no finding as to whether Lucas was a "poor person" as defined by KRS 453.190(2), and did not inquire into Lucas's ability to pay court costs in the foreseeable future. KRS 23A.205(2). That failure is reversible error.
We are cognizant that Maynes was decided well after the circuit court entered its May 5, 2010 Order Granting Pretrial Diversion.
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If Lucas is a poor person, he is not subject to court costs. See id. However, in light of Lucas's pretrial diversion (indicating the possibility of Lucas's gainful employment), the small amount of court costs ordered, and the five-year grace period, it is not readily discernible from the record that Lucas is, indeed, a "poor person" unable to pay the costs ordered within the generous time period afforded by the circuit court. Maynes, 361 S.W.3d 929-30. The resolution of this issue turns on a question of fact to be decided by the circuit court. See Smith, 361 S.W.3d at 921. Accordingly, we reverse the portion of the circuit court's May 5, 2010 Order Granting Pretrial Diversion requiring Lucas to pay court costs, and remand for additional proceedings.
On remand, we direct the circuit court to ascertain whether Lucas is indeed a "poor person" unable to pay the ordered court costs, currently "or within the foreseeable future[,] without depriving himself and his dependents of the basic necessities of life." Maynes, 361 S.W.3d at 933; Smith, 361 S.W.3d at 921; KRS 23A.205.
III. Conclusion
The Jefferson Circuit Court's May 5, 2010 Order Granting Pretrial Diversion is reversed only insofar as the circuit court required Lucas to pay court costs, and remanded for additional proceedings to ascertain whether Lucas: (1) is a "poor person" as contemplated by KRS 453.190(2) and KRS 23A.205(2); and (2) can or will soon be able to pay the court costs ordered.
ALL CONCUR. BRIEF FOR APPELLANT: Annie O'Connell
Assistant Public Defender
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky