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Hernandez v. Commonwealth

Court of Appeals of Kentucky

August 3, 2018



          BRIEFS FOR APPELLANT: Cicely J. Lambert Deputy Appellate Defender Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky




         The 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.

         Hernandez 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.

         As 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.

         Defense 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.[1] 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 discretion.

         During 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.

         Citing 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.

         We have 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 CR[2] 73.02 or RCr[3] 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 ...

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