REMAND FROM SUPREME COURT OF KENTUCKY 2017-SC-000314-DG
FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 14-CR-00142
FOR APPELLANT: Steven J. Buck Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason
B. Moore Assistant Attorney General Frankfort, Kentucky.
BEFORE: COMBS, J. LAMBERT, AND MAZE, JUDGES.
Samuel Fultz, appeals from an Order of Judgment and Sentence
following his conviction on drug and traffic-related charges.
He argues that the Rowan Circuit Court erred when it
overruled his motion to suppress evidence seized as the
result of a traffic stop, the initiation of which Fultz
contends lacked sufficient reasonable suspicion and probable
cause. Fultz also challenges the trial court's order that
he pay fines because the court previously found Fultz to be
indigent for purposes of representation by the Department of
Public Advocacy (DPA).
prior opinion, this Court found substantial evidence to
support the trial court's conclusion that the officer had
reasonable suspicion of criminal activity to support the
traffic stop, and that the officer did not unreasonably
prolong the traffic stop during the brief period before Fultz
gave permission to search the vehicle. Therefore, we held
that the trial court properly denied his motion to suppress.
We also held that the trial court was authorized to impose
court costs on Fultz. However, we concluded that the trial
court was not authorized to impose fines on Fultz's
misdemeanor convictions given his indigent status, and
reversed the sentence imposing the fines.
Commonwealth filed a motion seeking discretionary review of
the latter holding. On June 6, 2018, the Supreme Court of
Kentucky granted the motion and remanded the matter to this
Court for further consideration of the Court's decision
in Commonwealth v. Moore, 545 S.W.3d 848 (Ky. 2018).
Having reviewed the reasoning and holding in Moore,
we conclude that the trial court was authorized to impose a
misdemeanor fine on Fultz for the offense of excessive window
tinting, but it was not authorized to impose a fine on him
for possession of drug paraphernalia. Because neither the
Commonwealth nor Fultz sought discretionary review on the
other issues raised in our prior opinion, we re-adopt the
holding on those matters as if fully set forth herein. Hence,
we affirm the judgment of conviction, the sentence imposing
the court costs, and the $100 fine for excessive window
tinting, but we reverse the sentence imposing the $500 fine
for possession of drug paraphernalia.
facts of this case were fully set forth in our prior opinion.
For purposes of this appeal, the following facts are
relevant. Following a traffic stop on July 30, 2014, Fultz
was charged with Trafficking in a Controlled Substance (Two
or More Grams Heroin), Possession of Drug Paraphernalia, and
Excessive/Improper Window Tinting. Fultz filed a motion to
suppress the evidence seized during the stop, arguing that
the officer's stop was pretextual, without probable
cause, and was impermissibly extended after it became
apparent that there was no traffic violation.
12, 2015, the trial court conducted an evidentiary hearing on
the motion at which the sole witness was Kentucky State
Police Trooper Steve Mirus. Based upon Trooper Mirus's
testimony, the trial court denied the motion to suppress.
Thereafter, a jury convicted Fultz of the charged offenses.
Based on the jury's verdict, the trial court sentenced
Fultz to ten-years' imprisonment. The court also imposed
fines of $100 for excessive window tinting and $500 for
possession of drug paraphernalia. Finally, the court ordered
Fultz to pay court costs. Fultz's appointed counsel
requested that the trial court suspend the misdemeanor fines,
since he had been previously found to be indigent. The trial
court denied the motion, but ordered Fultz to pay the $100
fine within one year of his release from prison and the $500
fine within eighteen months of his release.
appeal, this Court affirmed the trial court's denial of
Fultz's motion to suppress and the imposition of court
costs. Since those issues were not appealed further, we have
no reason to address them again. However, this Court held
that KRS 534.040 precluded imposition of the misdemeanor
fines because the trial court had ...