Robert Frazier v. Commonwealth of Kentucky ( 2023 )

RENDERED: FEBRUARY 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0484-MR
ROBERT FRAZIER APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 21-CR-00077
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.
EASTON, JUDGE: The trial court entered a judgment against the Appellant
(Frazier) upon his guilty plea to various charges, including trafficking in
marijuana. As part of the sentencing, the trial court imposed jail fees of $320 for
the sixteen days Frazier had been in the Fulton County Detention Center. Frazier
appeals the imposition of the jail fees. Because the record does not contain
required evidence for the imposition of such fees, we vacate and remand.
This Court has reviewed the sentencing hearing on February 24, 2022. The
trial court orally imposed the jail fees during that hearing. The trial court then
entered a written order imposing the jail fees. Any error in the imposition of the
jail fees was not preserved by a simultaneous objection to the fees at the time of
sentencing. “Nonetheless, since sentencing is jurisdictional it cannot be waived by
failure to object. Thus, sentencing issues may be raised for the first time on
appeal[.]” Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) (internal
quotation marks and citations omitted). Frazier then requests palpable error
review. RCr1 10.26.
The trial court judge did not have the benefit of the Kentucky
Supreme Court’s decision in Capstraw v. Commonwealth, 641 S.W.3d 148 (Ky.
2022), which was rendered on the same day as the sentencing in this case. The
Supreme Court in Capstraw established that the imposition of jail fees pursuant to
KRS2 441.265(2)(a) requires evidence of the fees policy enacted by the county to
be presented at the sentencing hearing.
The Kentucky Supreme Court followed Capstraw with the
unpublished decision in Williams v. Commonwealth, No. 2021-SC-0493-MR, 2022
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes.
-2-
WL 12211935 (Ky. Oct. 20, 2022). In Williams, the same trial court judge3 in
Capstraw had tried to address the concern about evidence of the jail fees policy by
taking judicial notice of the policy as noted in the judgment imposing the fees.
The Supreme Court found this insufficient yet recognized the ruling as a “highly
technical” application of the rule announced in Capstraw. Williams, 2022 WL
12211935, at *2.
The Supreme Court in Williams did not determine the taking of
judicial notice was not permitted for this purpose. Rather, if that manner of
admitting evidence is chosen, an opportunity to object to judicial notice must be
provided. KRE4 201(e). We note the Commonwealth asks this Court to take
judicial notice of the policy enacted by Fulton County. We decline to do so. The
question of required evidence should be first addressed by the trial court.
We recognize the rules of evidence, which would include the rule for
judicial notice, do not apply to a sentencing hearing. KRE 1101(d)(5). We then
take from the Capstraw and Williams decisions a requirement that some evidence
of the enacted county policy must be provided on the record. Similarly, a good
practice could include providing evidence for the number of days or other expenses
for which reimbursement may be ordered.
3
The author of this Opinion is the same former Hardin Circuit Court judge.
4
Kentucky Rules of Evidence.
-3-
This issue of jail fees should not become a burden for sentencing
hearings. Calling witnesses to establish jail fees ordinances and fees incurred is
not necessary. Upon remand, it should suffice for the record to include a copy of
the policy with a print-out of the jail fees claimed by the county. A practice could
be instituted to create a standard submission by the Commonwealth (perhaps with
the county preparing it as they seek the collection of the fees) for the sentencing
record. Regardless of how the trial court decides to address the issue, this Court
has no choice but to vacate and remand the imposition of the fees under our
Supreme Court’s recent decisions.
The order of the Fulton Circuit Court imposing jail fees is VACATED
and REMANDED for proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven J. Buck Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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