Opinion
NO. 2010-CA-002118-MR
09-14-2012
TODD LEE SEXTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 10-CR-00075
OPINION
AFFIRMING
BEFORE: LAMBERT, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Todd Sexton appeals from the October 27, 2010, judgment and sentence of the Perry Circuit Court. We affirm.
On January 15, 2010, Kentucky State Police Trooper Billy Pollard and Trooper Adam Hall set up a roadblock on Highway 80 in Perry County, Kentucky. The purpose of the roadblock was to detect impaired drivers and traffic violations. Two police cruisers were positioned at the roadblock, with their emergency lights activated and visible, and both troopers were in uniform. Trooper Pollard testified that he had been involved in hundreds of prior roadblocks, was familiar with the statewide guidelines for establishing such, and the January 15 roadblock complied with those guidelines.
Shortly after establishing the roadblock, Trooper Pollard observed a truck, driven by Sexton, briefly turn into a nearby church parking lot, turn back onto the highway, and continue traveling in the direction from which it had come. Trooper Pollard further testified the roadblock was clearly visible and no other vehicles were present at the roadblock when Sexton executed the turnabout. Suspecting that Sexton was avoiding the roadblock, Trooper Pollard followed Sexton's vehicle. As Trooper Pollard passed the church parking lot, he noticed a female standing there and radioed Trooper Hall to investigate. After stopping Sexton's vehicle, Trooper Pollard noticed that Sexton appeared nervous and could not explain why he had turned around or where he was going. Sexton gave Trooper Pollard consent to search the truck, whereupon several small baggies containing Hydrocodone were discovered. Sexton was then arrested. It was further discovered by Trooper Hall that there was an active emergency protective order in place between Sexton and the woman he had dropped off in the parking lot.
Sexton was subsequently indicted for trafficking in a controlled substance in the second degree, failure to produce proof of insurance, failure of a non-owner operator to maintain insurance, lack of registration, lack of driver's license, failure to possess license, prescription drugs not in the proper container, and possession of drug paraphernalia. Sexton moved to suppress the evidence seized from his vehicle during the January 15 investigatory stop. A suppression hearing was held, after which the trial court denied Sexton's motion. Thereafter, Sexton entered a conditional guilty plea to second-degree trafficking in a controlled substance, prescription drugs not in the proper container, and possession of drug paraphernalia. The remaining charges were dismissed and Sexton reserved the right to appeal the denial of his suppression motion. Sexton's plea was accepted by the trial court and memorialized in the October 27, 2010, judgment and sentence, in which he was sentenced to a total of two-years' incarceration and ordered to pay $155.00 in court costs and fees. This appeal followed.
Sexton first argues that the trial court erred when it denied his suppression motion. His argument is two-fold: Trooper Pollard lacked a reasonable suspicion of criminal activity to justify an investigatory stop of Sexton's vehicle, and the roadblock at issue failed to pass constitutional muster. We disagree with Sexton's first argument and decline to address the merits of the second.
When reviewing a trial court's denial of a motion to suppress, we utilize the familiar two-step standard of review. Blane v. Commonwealth, 364 S.W.3d 140, 146 (Ky. 2012). First, we review the circuit court's findings of fact under the clearly erroneous standard. Rogers v. Commonwealth, 366 S.W.3d 446, 452 (Ky. 2012). The trial court's factual findings are deemed conclusive if supported by substantial evidence and we may not disturb them on appeal. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001); see also Kentucky Rules of Criminal Procedure (RCr) 9.78. We next conduct a de novo review of the law as applied to the facts. Blane, 364 S.W.3d at 146.
A police officer's detainment of a vehicle for investigatory purposes meets the definition of a seizure. See U.S. CONST. amend IV; Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009). Such seizure is permissible, provided the officer has a reasonable suspicion, supported by articulable facts, "that criminal activity is afoot[.]" Williams v. Commonwealth, 364 S.W.3d 65, 69 (Ky. 2011) (citation omitted). A reasonable suspicion requires more than a mere "unparticularized suspicion or 'hunch' . . . less of a showing than probable cause," and "at least a minimal level of objective justification." Bauder, 299 S.W.3d at 591 (citations omitted).
When assessing evidence upon which an investigatory stop is made, three considerations are of particular importance. First, the assessment must be based upon the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); Williams, 364 S.W.3d at 69. Second, the totality of the circumstances must be viewed from the trained officer's viewpoint, taking into consideration the officer's reasonable inferences and deductions. Cortez, 449 U.S. at 418, 101 S.Ct. at 695; Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) ("[A] police officer views the facts through the lens of his police experience and expertise."). Third, the totality of the circumstances "must yield a particularized suspicion . . . that the particular individual being stopped is engaged in wrongdoing." Cortez, 449 U.S. at 418, 101 S.Ct. at 695; Williams, 364 S.W.3d at 66-67.
Sexton argues that Trooper Pollard did not have an articulable, reasonable suspicion of criminal activity when he stopped Sexton's vehicle. Sexton maintains that he was engaged in usual or normal activity, namely dropping off a passenger at a church, and the stop was therefore unreasonable. We disagree. Trooper Pollard's testimony served as sufficient support that he reasonably suspected Sexton was intentionally avoiding the roadblock. This Court has previously held that the perceived avoidance of a traffic stop sufficiently creates a reasonable suspicion that the driver may be engaged in criminal activity, thereby justifying an investigatory stop. Steinbeck v. Commonwealth, 862 S.W.2d 912 (Ky. App. 1993); Bauder v. Commonwealth, 299 S.W.3d 588 (Ky. 2009).
Sexton further argues that any reasonable suspicion should have dispersed when Trooper Pollard observed that Sexton had dropped a woman off in the church parking lot. Again, we disagree. Suspicious conduct consisting entirely of legal acts does not negate an officer's "reasonable suspicion that criminal activity had, in fact, occurred" or may be occurring. Simpson v. Commonwealth, 834 S.W.2d 686, 688 (Ky. App. 1992); Baltimore v. Commonwealth, 119 S.W.3d 532, 541 (Ky. App. 2003) ("[A] determination of reasonable suspicion need not rule out the possibility of innocent conduct."). "[T]he reasonableness of inferences made by police officers[,]" viewed not in isolation but "through the prism of each officer's own training and experience[,]" is due considerable deference. Bauder, 299 S.W.3d at 592. Given the totality of the circumstances, we agree that Sexton's outwardly innocuous conduct reasonably gave rise to a suspicion of criminal activity. Trooper Pollard testified that Sexton abruptly turned into the church parking lot, stopped for mere seconds, and quickly pulled out in the opposite direction. There was no indication that church activities were taking place, or that the woman dropped off entered the church or another vehicle. Instead, the woman was standing alone, in a church parking lot, at 9:00 p.m. on a Friday evening in January. Sexton's abrupt and unusual conduct, from Trooper Pollard's viewpoint, yielded a reasonable inference that Sexton was evading the roadblock and that criminal activity was therefore afoot. Bauder, 229 S.W.3d at 593. Accordingly, we find no error with the trial court's denial of Sexton's motion to suppress.
Sexton also argues that his suppression motion was wrongfully denied because the roadblock failed to pass constitutional muster. Specifically, he maintains that the checkpoint was random, or discretionary, as opposed to being conducted according to a systematic plan. Because Sexton was not actually stopped at the roadblock we find this argument to be immaterial.
We agree that any evidence seized from a constitutionally unsound roadblock must be suppressed. Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003). However, in order to question the constitutionality of a roadblock, the defendant must first demonstrate that he was actually stopped at the roadblock in question. Otherwise, the legality of the roadblock is irrelevant. See, e.g., Steinbeck, 862 S.W.2d at 914 (holding that a driver approaching a roadblock has not been seized until actually reaching the roadblock). It is undisputed that Sexton was not stopped at the roadblock. Furthermore, the reasonable suspicion created by Sexton's avoidance of the roadblock is in no way affected by any alleged deficiency of the roadblock itself. Accordingly, Sexton's argument fails as irrelevant.
Sexton also challenges the trial court's imposition of court costs and fees. As an unpreserved argument, Sexton requests palpable-error review. This Court may review unpreserved "palpable errors which affect the substantial rights of a party" and to grant appropriate relief if it determines that "manifest injustice has resulted from the error." RCr 10.26. Furthermore, Court costs and fees, "being part of the punishment imposed by the court, are part of the sentence imposed in a criminal case." Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010). Sentencing issues "may be raised for the first time on appeal." Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007); Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky. 1985). Accordingly, the issue is properly before us.
Sexton argues that the trial court erred when it required him to pay $130.00 in court courts and a $25.00 facility fee, despite his status as an indigent person. He argues that the costs and fee are in direct opposition to KRS 31.110 and Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky. 1987), which holds that court costs may not be imposed an indigent person. We disagree.
There is no dispute that Sexton was found to be indigent by the trial court, appointed a public defender, and permitted to proceed in forma pauperis on appeal. In Edmonson, the Kentucky Supreme Court found it was reversible error to impose court costs on an indigent defendant. 725 S.W.2d at 596. However, the Supreme Court more recently retreated from Edmonson's seemingly invariable rule and distinguished between a "needy" person under KRS 31.110 and a "poor" person under KRS 23A.250. Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). A needy, or indigent, person is entitled to legal representation and the circuit court "shall waive all costs" for that person. KRS 31.110(1). However, once convicted, court costs shall be imposed on a defendant unless he is found to be a poor person. KRS 23A.205. 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). The Court in Maynes concluded that a defendant who is needy but not poor may be required to pay court costs. Maynes, 361 S.W.3d at 929; see also Smith v. Commonwealth, 361 S.W.3d 908 (Ky. 2012). Conversely, if a defendant is both needy and poor, the circuit court is prohibited from imposing court costs. Maynes, 361 S.W.3d at 929. Hence, if Sexton is, indeed, a poor person, it would be manifestly unjust to impose court costs on him. Wiley, 348 S.W.3d at 574. While the trial court found Sexton to be needy, there was no finding regarding his status as a poor person. Furthermore, Sexton has failed to argue that he is a poor person, only that the costs were inappropriate because of his status as a needy person. Accordingly, we find no error with the trial court's imposition of costs.
For the foregoing reasons, the October 27, 2010, judgment and sentence of the Perry Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky