FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE,
JUDGE ACTION NO. 13-CR-001336
FOR APPELLANT: Cicely J. Lambert Deputy Appellate Defender
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
Havey Assistant Attorney General Frankfort, Kentucky
BEFORE: DIXON, KRAMER AND NICKELL, JUDGES.
OPINION AND ORDER
SHEA NICKELL JUDGE.
question presented is whether the Jefferson Circuit Court
abused its discretion in reducing by more than one-half the
fee demanded by a certified freelance court interpreter for
services provided in the defense of Genaro Herrera Hernandez,
an indigent criminal defendant from Guatemala. The services
were provided pursuant to a court order authorizing defense
counsel to utilize interpreter services believed "to be
reasonably necessary to ensure effective
representation." On review of the record, the briefs,
and the law, we hold the appeal was not timely filed, is not
properly before us, and must be dismissed.
was indicted for murder, first-degree assault, and other
crimes after his vehicle struck a motorcycle resulting in the
cyclist's death and injuries to his passenger. Hernandez
pled guilty and was sentenced to serve a term of ten years.
Generally, "an unconditional guilty plea waives all
defenses except that the indictment does not charge a public
offense." Jackson v. Commonwealth, 363 S.W.3d
11, 15 (Ky. 2012). A guilty plea specifically waives the
right to appeal. Windsor v. Commonwealth, 250 S.W.3d
306, 307 (Ky. 2008). Hernandez did not appeal the judgment
and has no personal stake in this appeal; he may be unaware
it is even occurring.
briefed by the Louisville Metro Public Defender
("LMPD"), this case focuses entirely on a bill for
Spanish language interpretation and translation services
submitted by Ilse Apestequi who provided such services for
Hernandez' defense on multiple occasions pursuant to a
sealed ex parte order. The trial court approved
Apestequi's first bill for $777.00 and her third bill for
$339.43. However, the trial court questioned Apestequi's
second invoice, seeking $2, 520.00 for written translation
and transcription of a sixty-nine-minute audiotaped police
interview with Hernandez, finding the amount unreasonable and
unnecessary. A reduced payment of $1, 200.00 was approved on
August 5, 2015.
counsel moved the trial court to reconsider the reduction,
and asked to be heard ex parte on the motion. The
motion to reconsider was granted without a hearing. Despite
an affidavit from Apestequi accounting for the time reflected
on her invoice and distinguishing in-court translation from
interpretation of recordings, the trial court stood firm in
approving the reduced fee, entering an eight-page opinion and
order on February 4, 2016, denying the defense request for
additional funds. The trial court described the fee dispute
in exacting detail, beginning with its calculation of
Apestequi's bill being "60 times the amount
ordinarily spent by the Court's staff interpreters."
The trial court found a fee of "only 30 times
the amount the Jefferson Circuit Court's Staff
Interpreters spend on such translations to be reasonable and
within its discretion." (Emphasis in original.) The
final paragraph of the order reads:
Wherefore, IT IS HEREBY ORDERED that [Hernandez'] motion
for additional fees is denied. [Hernandez] has not provided
the Court with any authority that this Order is final and
appealable for himself, the Office of the Public Defender,
the Interpreter, and/or the Finance Cabinet. However, to
allow further review of the issues by an appellate body, the
Court will designate this Order as final and
appealable. Defendant is once again free to proceed
in forma pauperis, here and on appeal.
(Footnote added). In Hernandez' name in his now-concluded
criminal case, LMPD filed a notice of appeal-challenging not
the judgment of conviction but the order approving payment of
the reduced fee-alleging the trial court abused its
the briefing process, the Commonwealth moved this Court to
dismiss the appeal for failure to name an indispensable
party, arguing LMPD- which contracted for Apestequi's
services-or Apestequi-who provided the services-or both,
should have intervened or petitioned the trial court to
pursue the matter. A motion panel ordered the parties to
address the motion to dismiss in the briefs and passed the
matter to this merits panel for resolution.
Browning v. Preece, 392 S.W.3d 388, 391 (Ky. 2013)
(defining an indispensable party as one "whose absence
prevents the Court from granting complete relief among those
already parties" (internal citation omitted)), the
Commonwealth argues failure to name an indispensable party in
the notice of appeal is a jurisdictional defect that cannot
be remedied once the window for filing the notice of appeal
has closed. To the contrary, claiming Boyle County Fiscal
Court v. Shewmaker, 666 S.W.2d 759, 762-63 (Ky. App.
1984), "is directly on point," LMPD maintains the
appeal is properly before us.
determined the appeal cannot go forward on multiple grounds,
the first of which is lack of timeliness. LMPD has posed a
civil question in a criminal case. Whether proceeding under
73.02 or RCr 12.04(3), notice was not timely filed.
Both rules provide a thirty-day window in which to appeal.
RCr 12.02 addresses the applicability of civil rules to
criminal actions; it specifies CR 73.02(1)(e)-governing
timing of the filing of the notice of appeal-"shall
apply also in criminal actions" unless a sentence of
death, life imprisonment or ...