FROM FULTON CIRCUIT COURT HONORABLE TIMOTHY A. LANGFORD,
JUDGE ACTION NO. 16-CR-00035
FOR APPELLANT: Susan Jackson Balliet Assistant Public
Advocate Department of Public Advocacy
FOR APPELLEE: Andy Beshear Attorney General of Kentucky,
Leilani K. M. Martin Assistant Attorney General
BEFORE: COMBS, D. LAMBERT AND NICKELL, JUDGES.
William Paul Jones appeals from a Judgment and Sentence on
Plea of Guilty of the Fulton Circuit Court with respect to
the imposition of court costs. For the reasons set forth
below, we reverse.
hearing on May 26, 2016, Jones entered a plea of guilty to
assault in the third degree in exchange for the Commonwealth's
recommendation of a sentence of three and one-half years'
incarceration. On June 9, 2016, the trial court held a
sentencing hearing and orally sentenced Jones consistent with the
Commonwealth's recommendation, but also imposed court
costs of $160.00 to be paid in full within six months after
being released from prison. On June 10, 2016, the trial court
entered an order requiring Jones to pay his court costs and
finding that he had assets in his commissary account and/or
other assets that would render him not to be a poor person at
that time, and that he was able bodied. On July 8, 2016,
Jones, through counsel, filed a motion to grant in forma
pauperis status on appeal, along with a financial
statement and detention center inmate account indicating he
had no assets. On September 12, 2016, the trial court entered
separate orders appointing counsel to represent Jones on
appeal and granting the motion seeking in forma
pauperis status, finding he was a pauper within the
meaning of KRS 453.190 and KRS 31.110(2)(b). On appeal, Jones
is not challenging his conviction or sentence of
imprisonment, only the imposition of court costs.
contends the trial court erred in imposing any court costs as
a violation of KRS 23A.205, and in the alternative, he
challenges the inclusion of $30.00 of that amount as
unconstitutional as an excessive fine under the Eighth
Amendment of the United States Constitution and Section
Seventeen of the Kentucky Constitution. Jones concedes these
issues are not properly preserved because trial counsel did
not object to the imposition of court costs, but he urges
this Court to review them under RCr 10.26, the palpable error rule.
courts have recognized challenges to the imposition of court
costs as falling under the rubric of so-called
"sentencing" issues. Jones v.
Commonwealth, 382 S.W.3d 22 (Ky. 2011); Travis v.
Commonwealth, 327 S.W.3d 456 (Ky. 2010); Sevier v.
Commonwealth, 434 S.W.3d 443 (Ky. 2014). The Supreme
Court of Kentucky has further held sentencing issues are not
waived by failure to preserve or raise the issue before the
trial court. Jones, 382 S.W.3d at 26; Cummings
v. Commonwealth, 226 S.W.3d 62, 66 (Ky. 2007). More
specifically, a defendant does not waive sentencing issues by
entering an unconditional plea of guilty. Windsor v.
Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008);
Ladriere v. Commonwealth, 329 S.W.3d 278 (Ky. 2010).
In addition, because Jones' claim involves the violation
of a sentencing statute, it qualifies as a "sentencing
issue" not subject to waiver. Jones, 382 S.W.2d
at 28-29 (distinguishing between arguments involving
violations of statutes and procedural defects); Webster
v. Commonwealth, 438 S.W.3d 321 (Ky. 2014) (discussing
claims qualifying as sentencing issues).
given the lack of preservation of Jones' claim of error,
the appellate court reviews the claim based on palpable
error. Ladriere. Under RCr 10.26, an unpreserved
error may only be corrected on appeal if the error is both
"palpable" and "affects the substantial rights
of a party" to such a degree it can be determined
"manifest injustice has resulted from the error."
"To be palpable, an error must result in manifest
injustice, either through the 'probability of a different
result or error so fundamental as to threaten a
defendant's entitlement to due process of law.'"
Jones v. Commonwealth, 331 S.W.3d 249, 256 (Ky.
2011) (quoting Martin v. Commonwealth, 207 S.W.3d 1,
3 (Ky. 2006)). In other words, to deem an unpreserved error
palpable, we must consider "whether the defect is so
manifest, fundamental and unambiguous that it threatens the
integrity of the judicial process." Id.
However, the imposition of court costs on an indigent
defendant is palpable error under RCr 10.26. Wiley v.
Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010).
contends the trial court erred by imposing court costs in
violation of KRS 23A.205, which provides:
(1) Court costs for a criminal case in the Circuit Court
shall be one hundred dollars ($100).
(2) 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.
(3) If the court finds that the defendant does not meet the
standard articulated in subsection (2) of this section and
that the defendant is nonetheless unable to pay the full
amount of the court costs and fees at the time of sentencing,
then the court shall establish a show cause date by which
time the court costs, fees, and fines shall be paid and may
establish an installment payment plan whereby the defendant
pays the full amount of the court costs, fees, and fines to
the circuit clerk in installments as established by the
court. All court costs and fees under the installment plan
shall be paid within one (1) year of the date of sentencing
notwithstanding any remaining restitution or other monetary