Eric Daniels v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0212-MR
ERIC DANIELS APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 21-CR-00015
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
CETRULO, JUDGE: Appellant Eric Daniels (“Daniels”) appeals the order of the
Hickman Circuit Court requiring him to pay jail reimbursement fees pursuant to
KRS1 441.265.
1
Kentucky Revised Statute.
FACTUAL AND PROCEDURAL HISTORY
In November 2021, Daniels entered an Alford2 plea of guilty to first-
degree rape, third-degree rape, and second-degree unlawful transaction with a
minor. Prior to sentencing, Daniels spent 83 days in jail. At his sentencing in
February 2022, the circuit court imposed a sentence of 16 years of imprisonment,
along with jail reimbursement fees. The circuit court assessed that Daniels owed
Hickman County $2,145 in jail reimbursement fees: $25 a day for the first 13
days, then $26 a day for the each of the remaining 70 days.3
During the sentencing hearing, the circuit court confirmed that
Daniels had received, reviewed, and agreed with his Pre-Sentence Investigation
Report. Then, the circuit court detailed the jail fees owed. The Commonwealth
did not present evidence regarding the validity of the fees or the county governing
body’s approval of such fees. The Commonwealth did not appear to know much
about the fees at all, and initially disagreed with the calculations of the circuit
court, stating that it believed the per-day rate was the same “whether it was before
or after” July 1, 2021.
2
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); a plea under
which the defendant does not admit to the charges but pleads guilty because the evidence against
him or her is overwhelming.
3
The circuit court order detailed that the county had implemented a new policy on Daniels’s
fourteenth day of incarceration that increased the per-day fee by $1.
-2-
The circuit court noted that “it was showing a $25 and a $26” and
openly asked the courtroom attendees if that was accurate. The individual sitting
directly next to the judge, presumably someone who works for him or the
courthouse, answered “yes.”4 The circuit court, having seemingly satisfied the
question, then reiterated that it was $26 after July 1, to which the Commonwealth
responded “okay, if that’s the case, then [Daniels] has 13 [days] before [July 1] and
70 after.” The discussion ended there. No evidence was presented to validate the
policies, the change thereof on July 1, or the governing body’s approval of such
policies. Before adjourning, the circuit court mentioned that Daniels’s jail fees
would be due when he walked out of jail.
Following the hearing, in February 2022, the circuit court entered an
order stating
The Court having been advised that [Daniels] has been
incarcerated in jail prior to the date of sentencing, and the
Court being further aware that Hickman County does not
operate a jail and had adopted a jail fee ordinance/policy
pursuant to applicable law and set jail fees at actual costs
of payment to the other county jails at $25.00 per day,
PRIOR to July 1st, 2021, and the Court being further
advised that Hickman County has adopted a NEW jail fee
ordinance pursuant to applicable statute and has
established a jail fee of $26.00 per day the actual costs of
payment to other county jails EFFECTIVE July 1, 2021
and the Court finding that these costs are reasonable
4
Neither the Commonwealth nor the defense attorney confirmed or presented evidence
confirming the fees.
-3-
pursuant to KRS 441.265, and being otherwise
sufficiently advised,
IT IS THEREFORE THE ORDER OF THIS
COURT that the defendant reimburse Hickman County at
the rate of $25.00 per day for each of the 13 days spent in
incarceration (before July 1, 2021) prior to sentencing.
IT IS THEREFORE THE ORDER OF THIS
COURT that the defendant reimburse Hickman County at
the rate of $26.00 per day for each of the 70 days spent in
incarceration (July 1, 2021 to present) prior to
sentencing[.]
Daniels now appeals the order regarding the jail reimbursement fees
and claims the Commonwealth failed to present evidence of the reimbursement
policies, as KRS 441.265 requires. Daniels recognizes that he did not preserve the
issue below and requests palpable error review. See RCr5 10.26.
STANDARD OF REVIEW
An unpreserved issue, like that found here, “may be noticed on appeal
only if the error is ‘palpable’ and ‘affects the substantial rights of a party[.]’”
Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citing RCr 10.26). An
error is palpable “only if it is clear or plain under current law” and only if “it is
more likely than ordinary error to have affected the judgment.” Id. (citations
omitted). Even when the error is palpable and prejudicial, relief is still not
warranted “unless the reviewing court further determines that it has resulted in a
5
Kentucky Rule of Criminal Procedure.
-4-
manifest injustice,” meaning “the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be ‘shocking or jurisprudentially
intolerable.’” Id. (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)).
ANALYSIS
As an initial matter, quoting Chadwell v. Commonwealth, 627 S.W.3d
899, 902 (Ky. 2021), the Commonwealth claims that Daniels’s failure to raise the
issue of jail fees at sentencing and the circuit court’s decision adhering to the facts
in the record means “there is no error, ‘sentencing or otherwise[,]’ to correct on
appeal.” We disagree. First, Chadwell stated that the defendant’s failure to raise
the issue of poverty status before the trial court did not constitute error. Id.(citation omitted). Here, we have no issue regarding poverty status or court costs
and find the reference to Chadwell largely irrelevant on the issue of jail fees.
Second, the Kentucky Supreme Court, more recently than Chadwell,
clarified that “since sentencing is jurisdictional it cannot be waived by failure to
object. Thus, sentencing issues may be raised for the first time on appeal[.]”
Capstraw v. Commonwealth, 641 S.W.3d 148, 161 (Ky. 2022) (quoting Travis v.
Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010)). In Capstraw – contrary to the
Commonwealth’s assertions – the Kentucky Supreme Court found error where a
circuit court imposed jail fees, the defendant failed to preserve the issue, and the
-5-
defendant requested palpable error review. Id. at 161-62. As we have an identical
situation before us, we will follow the relevant precedent, i.e., Capstraw.
Next, Daniels argues that the failure of the Commonwealth to present
evidence regarding the jail reimbursement policy violated KRS 441.265(2)(a) and
relevant caselaw, which amounted to palpable error. We agree. KRS
441.265(2)(a) states:
The jailer may adopt, with the approval of the county’s
governing body, a prisoner fee and expense
reimbursement policy, which may include, but not be
limited to, the following:
1. An administrative processing or booking fee;
2. A per diem for room and board of not more
than fifty dollars ($50) per day or the actual per
diem cost, whichever is less, for the entire
period of time the prisoner is confined to the
jail. Not later than the second Friday in
February of each year, the Department of
Corrections shall adjust the fifty dollar ($50)
maximum per diem for room and board at a rate
accounting for any percentage increase or
decrease in the nonseasonally adjusted annual
average Consumer Price Index for All Urban
Consumers, U.S. City Average, All Items, as
published by the United States Bureau of Labor
Statistics, using 2022 as the base year;
3. Actual charges for medical and dental
treatment; and
4. Reimbursement for county property damaged
or any injury caused by the prisoner while
confined to the jail.
-6-
In Capstraw, the Kentucky Supreme Court emphasized that in order
to impose jail fees against a criminal defendant, some evidence that a jail fee
policy had “been adopted by the county jailer with approval of the county’s
governing body in accordance with KRS 441.265(2)(a)” must be presented at
sentencing. 641 S.W.3d at 161-62 (citing Weatherly v. Commonwealth, No. 2017-
SC-000522-MR, 2018 WL 4628570, at *1, *10 (Ky. Sep. 27, 2018)).
Like here, the defendant in Capstraw argued that the circuit court
committed palpable error when it imposed jail fees “because there was no evidence
of record that the [county] jail had adopted a jail fee reimbursement policy.” Id. at
161. The Kentucky Supreme Court agreed and vacated the order imposing jail
fees, finding that “there [was] no evidence that [the county] had established a jail
fee reimbursement policy pursuant to statute, and no evidence that such policy was
ever presented to the trial court to be considered in sentencing.” Id. (quoting
Weatherly, 2018 WL 4628570, at *10).
The Commonwealth, perhaps recognizing its predicament, now
attempts to distinguish Capstraw from the present case and argues that our
Supreme Court vacated the jail fees in Capstraw “because the court’s sentencing
order made no mention of a jail fee reimbursement policy[.]”6 However, that was
6
The Commonwealth makes a similar claim using Campbell v. Commonwealth, No. 2020-CA-
0690-MR, 2021 WL 1051590, at *1, *5 (Ky. App. Mar. 19, 2021). This unpublished case,
-7-
not the Court’s finding. Instead, the Kentucky Supreme Court clearly stated that it
was required to vacate the jail fees “because there was no such evidence presented
during [defendant’s] sentencing[.]” Id. at 162 (emphasis added). Therefore,
Capstraw does not support the assertion of the Commonwealth that the jail fee
policy’s validity and approval can be established simply by declaring it in the
circuit court order. Instead, evidence must be presented to the circuit court to be
considered during sentencing. Id.
Although unpublished, our Supreme Court cited Weatherly when
making such determination. Therefore, we find it valuable to analyze here. In
Weatherly, again, the defendant requested discretionary review of the circuit
court’s imposition of jail fees for palpable error and, again, the Kentucky Supreme
Court found palpable error. Weatherly, 2018 WL 4628570, at *10. Our Supreme
Court determined that “[f]rom the record, there is no evidence that [the county] had
established a jail fee reimbursement policy pursuant to statute, and no evidence
released before Capstraw, also reversed the judgment imposing jail fees but noted that “the trial
court failed to make any finding that the jailer adopted, with the approval of the county’s
governing body, a prisoner fee and expense reimbursement policy under KRS 441.265(2)(a).”
Id. at *5. Therefore, the Commonwealth concludes that a circuit court need only mention such
“findings” in its order to adhere to applicable law. See also McAllister v. Commonwealth, No.
2019-CA-0243-MR, 2020 WL 4917921, at *1, *3 (Ky. App. Aug. 21, 2020). Such conclusions
ignore binding precedent of our Supreme Court, published after Campbell and McAllister, which
requires the presentation of evidence to be considered at sentencing. Id. For the same reasons
discussed in our Capstraw analysis, we, again, are not persuaded.
-8-
that such policy was ever presented to the trial court to be considered in
sentencing.” Id. Therefore, our Supreme Court vacated the jail fees. Id.Similarly, here, the record contains no evidence to establish the jail
fee or its adoption by the county’s governing body and no evidence that such proof
was presented at sentencing.7 The sole verbal confirmation that any such policies
even existed came not from a party or the circuit court judge, but from a bystander.
The written record is equally lacking. The circuit court’s order and the Judgment
and Sentence on Plea of Guilty, which simply stated the days of incarceration for
each per-day rate, are the only documents in the record that even reference the jail
fees. Although the circuit court order stated that policies existed and that the
county adopted the policies “pursuant to applicable law,” no evidence was
presented to support such claims. In fact, as discussed, it did not appear that the
Commonwealth was even aware of such policies, much less whether each was
valid or properly approved under applicable law.
7
The Commonwealth now attempts to submit new evidence – found nowhere in the record – to
meet such requirements; and claims that we are permitted to take judicial notice of such
documents. Kentucky Rule of Evidence 201(f) (stating “Judicial notice may be taken at any
stage of the proceeding.”). Again, this is largely irrelevant because judicial notice “allows a
court to use commonly-known assumptions of fact as evidence.” Marchese v. Aebersold, 530
S.W.3d 441, 447 (Ky. 2017). An unauthenticated document stating a governing body’s approval
of a jail fee reimbursement policy would not constitute “commonly-known assumptions of fact,”
especially considering the Commonwealth did not know about the policies. Further, Capstraw
was clear that the evidence must be presented to the trial court to be considered in sentencing.
641 S.W.3d at 162.
-9-
The failure of the Commonwealth to present any evidence (or even be
aware that such policies existed before imposing the fees) resulted in manifest
injustice.
CONCLUSION
During sentencing, the Commonwealth failed to present any evidence
to the circuit court that Hickman County had established the jail fee policies and
that the county governing body had approved them. Therefore, the imposition of
jail fees resulted in palpable error, and the order of the Hickman Circuit Court
imposing jail fees is VACATED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron
Kayley V. Barnes Attorney General of Kentucky
Frankfort, Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
-10-