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Jones v. Commonwealth

Court of Appeals of Kentucky

August 11, 2017



          BRIEF FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Leilani K. M. Martin Assistant Attorney General



          NICKELL, JUDGE

          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.

         At a hearing on May 26, 2016, Jones entered a plea of guilty to assault in the third degree[1] 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[2] 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.

         Jones 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[3] 10.26, the palpable error rule.

         Kentucky 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).

         However, 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).

         Jones 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 ...

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