Opinion
NO. 2014-CA-001995-MR
04-15-2016
ROCCO PANGALLO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rocco Pangallo, pro se Kentucky State Reformatory LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 13-CR-00551 OPINION
AFFIRMING BEFORE: DIXON, MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Rocco Pangallo, pro se, appeals from an Order of the Campbell Circuit Court denying his 1) Motion to Amend Provisions of the Judgment, and 2) Motion to Amend the Judgment and to Vacate Court Costs and Public Defender Fees. He argues that the trial court improperly failed to waive court costs and public defender fees based on Pangallo's indigency. For the reason stated below, we find no error and AFFIRM the Order on appeal.
On April 8, 2014, Pangallo entered a guilty plea in Campbell Circuit Court to one count of Attempted Sexual Abuse in the First Degree by Forcible Compulsion, and two counts of Sexual Abuse in the First Degree. The court accepted the plea, and sentenced Pangallo in conformity with the Commonwealth's recommendation to one year in prison. It imposed court costs in the amount of $155 and a public defender fee of $1000, which were due within 180 days of release. In support of the fees, the court found that Pangallo had sufficient employment skills and training to secure employment upon release.
On November 7, 2014, Pangallo, through counsel, moved to amend the Judgment to reduce the public defender fee or establish a $25 per month payment schedule. Counsel argued that Pangallo would have difficulty finding work after release due to his criminal conviction. A hearing on the motion was conducted on November 14, 2014. After considering the matter, the court instituted a payment schedule in lieu of amending the Judgment. Pangallo was ordered to pay $50 per month upon his release until the fees and costs were paid in full.
Three days later, on November 17, 2014, Pangallo filed a pro se Motion to Amend the Judgment and to Vacate Court Costs and Public Defender Fees. He also sought to proceed in forma pauperis, and moved for the appointment of counsel. The pro se motions were heard on November 26, 2014. On December 9, 2014, the court rendered an Order denying them. In support of the Order, the court noted that it was familiar with Pangallo who had previously appeared before the court in a separate criminal matter. The court found Pangallo to be "an intelligent, articulate individual who has completed a certification for HVAC at Northern Kentucky Technical College", and who is "able to earn a reasonable livelihood due to his educational background and age." The court found the imposition of costs and fees to be reasonable, and went on to note that Pangallo's payment schedule had previously been amended to make it easier for him to satisfy the obligation. This appeal followed.
Heating, ventilation and air conditioning.
Pangallo now argues that the Campbell Circuit Court erred in failing to vacate the Order imposing costs and fees. He maintains that the circuit court acted in an unjustified, biased and arbitrary manner and engaged in a personal attack on Pangallo by failing to waive the costs and fees. He directs our attention to case law supportive of cost and fee waivers for indigency, and argues that it is extremely unlikely that any employer would hire him upon release due to his record as a convicted sex offender. He seeks an Opinion reversing the Order on appeal, and remanding the matter with instructions to vacate the imposition of costs and fees.
Pangallo prosecuted this matter via a pro se CR 60.02 motion, which provides relief from judgment only for errors which had not been put into issue or passed on, which were unknown at the time of judgment, or which could not have been presented before the trial court due to duress, fear or other sufficient cause. Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). CR 60.02 is not an additional opportunity to relitigate issues which could have been presented on direct appeal or via RCr 11.42. Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009).
Kentucky Rules of Civil Procedure.
Kentucky Rules of Criminal Procedure.
Despite being known to Pangallo and his counsel at the time of Judgment and sentencing, the issue before us was not addressed within 10 days of Judgment via a CR 59.05 motion to Alter, Amend or Vacate, nor by way of direct appeal. Because this was a matter which was known to Pangallo at the time of Judgment and sentencing, and as it was not addressed via CR 59.05 or by way of direct appeal, it is not ripe for appellate review.
Arguendo, even if the matter were properly before us via CR 60.02, we would find no error. KRS 31.211(1) provides that the court shall order the payment of a partial fee for public defender representation upon finding that the defendant is able to make payment. Similarly, the taxation of court costs against a defendant, upon conviction, "shall be mandatory" unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he is unable to pay court costs in the foreseeable future. KRS 23A.205(2).
Kentucky Revised Statutes. --------
In the matter before us, the Campbell Circuit Court determined Pangallo is able to pay a partial fee for public defender representation. Similarly, it did not find Pangallo to be a poor person as defined by KRS 453.190(2) who is unable to pay court costs in the foreseeable future. Rather, the court expressly found Pangallo to be possessed of intelligence, job skills and training sufficient to satisfy a reasonable payment schedule of $50 per month beginning 60 days after release. This finding is supported by the record and the law, and as such we find no error.
For the foregoing reasons, we AFFIRM the December 9, 2014 Order of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Rocco Pangallo, pro se
Kentucky State Reformatory
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky