Joshua Adkins v. Commonwealth of Kentucky ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0670-DG
JOSHUA ADKINS APPELLANT
ON DISCRETIONARY REVIEW
v. FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 20-XX-00013
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
WITH DIRECTIONS
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BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Joshua Adkins seeks our review of the May 12, 2021, Order
of the Kenton Circuit Court affirming an order of the Kenton District Court
denying Adkins’ motion to proceed in forma pauperis on appeal. We granted
discretionary review by order entered September 3, 2021. We reverse and remand
with directions.
Adkins was charged with fourth-degree assault and second-degree
unlawful imprisonment. An assistant advocate with the Department of Public
Advocacy filed a Motion for Appointment of Public Defender. Therein, it was
alleged that Adkins was indigent and unable to provide for his own defense. An
Affidavit of Indigence was filed with the motion. In the Affidavit, Adkins averred
that he worked full-time with a total monthly income of $1,473 and had $193 in
available cash. He also reported two dependents and monthly expenses of $1,135.
On July 13, 2020, District Court Judge Ann Ruttle held a pretrial
conference, and the assistant public advocate appeared in regard to the motion for
appointment of a public defender. The public advocate proceeded to identify
herself at which time the Judge Ruttle audibly laughed and stated, “you are not on
the record as his attorney.” The public advocate then explained that she was there
in regard to the motion. Judge Ruttle continued by stating that “the motion is
denied. He is out of custody. He has a full-time job, and he is on HIP.[1]” Judge
Ruttle then stated that Adkins “does not qualify for a public defender and that’s
being denied.” The public advocate argued that the court was required to hold a
hearing and consider relevant factors. Judge Ruttle then commented that she was
“having a hearing right now” and that she “had already made that decision before.”
Judge Ruttle then asked Adkins if he was disabled, and Adkins answered in the
1
Home Incarceration Program.
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negative. Judge Ruttle next inquired of Adkins if he was employed full-time, and
Adkins answered that he was so employed. The public advocate then explained
that Adkins’ earnings were nearly consumed by expenses and requested a hearing
to introduce evidence of Adkins’ indigent status. Judge Ruttle denied the request.
So, Adkins proceeded without an attorney. Judge Ruttle instructed
Adkins that he could go to trial or accept a plea offer from the Commonwealth.
The Commonwealth then stated the terms of its offer. Thereupon, Judge Ruttle
turned to Adkins and asked if he wanted to accept the plea offer and plead guilty or
go to trial. Adkins refused the plea offer. By a calendar order entered July 13,
2020, Judge Ruttle summarily denied Adkins’ motion for appointment of a public
advocate.
On the scheduled trial date, August 3, 2020, Judge Ruttle informed
Adkins, “We are here for trial today. You ready? We’re ready. We got witnesses
here, or do you want to take them up on an offer?” Adkins visibly shrugs his
shoulders and stated he did not know what the offer was from the Commonwealth.
Thereupon, Judge Ruttle told the Commonwealth to give him an offer.
The Commonwealth then stated that if Adkins pleaded guilty to
fourth-degree assault, the Commonwealth would drop the charge of unlawful
imprisonment and would recommend twelve-months’ imprisonment probated for
two years. After the Commonwealth stated the terms of the offer, Judge Ruttle
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repeated those terms to Adkins and asked, “Do you want it or not?” To which
Adkins responded in the affirmative. By an August 3, 2020, calendar order, Judge
Ruttle wrote “12 mos c/d 2yrs.” Curiously, in the same order, Judge Ruttle also
waived costs and fees due to Adkins’ indigence.
On September 2, 2020, Adkins filed a notice of appeal with the
Kenton Circuit Court from the August 3, 2020, order2 and a motion to proceed in
forma pauperis on appeal. On September 11, 2020, Judge Ruttle summarily
denied the motion to proceed in forma pauperis by writing “denied” on a tendered
order. On September 21, 2020, Adkins filed another notice of appeal in the Kenton
Circuit Court pursuant to Gabbard v. Lair, 528 S.W.2d 675 (Ky. 1975), from
denial of his motion to proceed in forma pauperis.3
In the appeal, the circuit court proceeded to hold an evidentiary
hearing on October 23, 2020, upon whether Adkins was indigent. By Order
entered May 12, 2021, the circuit court “denied” Adkins’ motion to proceed in
forma pauperis.
Thereupon, Adkins filed a motion for discretionary review with this
Court from the circuit court’s May 12, 2021, Order denying him indigent status.
2
The notice of appeal actually referenced the order being dated “August 3, 2018,” which this
Court treated as a typographical error.
3
Presumably, the circuit court consolidated the two appeals as there was only one appeal case
number assigned to the appeal.
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The Court of Appeals granted the motion by order entered September 3, 2021. Our
review follows.
Adkins contends that the district court and the circuit court erred by
denying his motion to proceed in forma pauperis on appeal. Upon review of the
record and pertinent legal authority, we are of the opinion that the district court and
circuit court committed error. Our reasoning is as follows.
In Kentucky, it is well-settled “that an indigent criminal defendant is
entitled to appointment of counsel in any proceeding in which he could be
sentenced to a term of imprisonment.” Tinsley v. Commonwealth, 185 S.W.3d
668, 671 (Ky. App. 2006). To determine whether a defendant is indigent or
“needy,” our focus turns to Kentucky Revised Statute (KRS) 31.120(2), which
provides:
(2) In determining whether a person is a needy person
and in determining the extent of his or her and, in the
case of an unemancipated minor under KRS
31.100(5)(c), his or her custodial parents’ or guardians’
inability to pay, the court concerned shall consider such
factors as:
(a) Income;
(b) Source of income;
(c) Property owned;
(d) Number of motor vehicles owned and in working
condition;
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(e) Other assets;
(f) Outstanding obligations;
(g) The number and ages of his or her dependents;
(h) The poverty level income guidelines compiled and
published by the United States Department of
Labor;
(i) Complexity of the case;
(j) Amount a private attorney charges for similar
services;
(k) Amount of time an attorney would reasonably
spend on the case; and
(l) Payment of money bail, other than a property bond
of another, whether deposited by the person or
another, to secure the person’s release from
confinement on the present charge of which he or
she stands accused or convicted; and
(m) Any other circumstances presented to the court
relevant to financial status.
Release on bail, or any other method of release
provided in KRS Chapter 431, shall not necessarily
prevent him or her from being a needy person. In each
case, the person and, if an unemancipated minor
under KRS 31.100(5)(c) and (d), his or her custodial
parent or guardian, subject to the penalties for perjury,
shall certify by affidavit of indigency which shall be
compiled by the pretrial release officer, as provided
under KRS Chapter 431 and Supreme Court Rules or
orders promulgated pursuant thereto, the material
factors relating to his or her ability to pay in the form
the Supreme Court prescribes.
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In cases involving indigency and appointment of counsel, the Court of
Appeals has instructed the trial court:
[F]irst, if a defendant raises the issue of indigency, a
hearing must be held thereon for a determination in
accordance with the requirements set forth in KRS
Chapter 31, and the court must enter findings at the
conclusion thereof. If the findings support indigency,
counsel shall be appointed. Second, if the findings do
not support indigency, and the defendant persists in not
employing counsel, he shall be deemed to have waived
counsel, whereupon he is entitled to the protections
of Faretta [v. California, 422 U.S. 806 (1975)]. . . .
Tinsley, 185 S.W.3d at 675. To comply with Faretta v. California, 422 U.S. 806(1975), our Court has set forth three duties imposed upon a trial court:
First, the trial court must conduct a hearing in which the
defendant testifies as to whether the waiver is voluntary,
knowing, and intelligent. Second, the trial court must
warn the defendant in the hearing of the benefits
relinquished and the perils arising from the waiver of
counsel. Finally, the trial court must make a finding on
the record that the waiver is voluntary, knowing, and
intelligent.
Tinsley, 185 S.W.3d at 674 (citations omitted).
In the case sub judice, the record is clear that Judge Ruttle failed to
hold an evidentiary hearing in the district court and failed to render any findings of
fact as to Adkins’ indigency. Rather, Judge Ruttle summarily denied the motion
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for appointment of counsel and motion to proceed in forma pauperis. This
constituted reversible error.4 See Tinsley, 185 S.W.3d at 674-75.
On appeal, the circuit court effectively conducted the evidentiary
hearing that the district court failed to do. In an appeal from a district court, the
circuit court’s review is not by trial de novo. Section 115 of the Kentucky
Constitution; see also Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987).
To the contrary, the circuit court reviews a decision of the district court “in an
appellate capacity only.” Id. While it appears the circuit court was attempting to
remedy the district court’s error by conducting a hearing to determine Adkins’
indigency, the circuit court could not conduct an evidentiary hearing on appeal as
the court was exercising appellate jurisdiction only. Id. By doing so, the circuit
court exceeded the proper scope of the court’s appellate review and committed
error as a matter of law.
In sum, we reverse and remand with directions that the circuit court
shall remand this matter to the district court. Upon remand, the district court shall
conduct a hearing and render written findings of fact and conclusions of law per
Kentucky Rules of Civil Procedure 52.01 and Tinsley, 185 S.W.3d at 672 as to
4
Additionally, we note that Judge Ruttle improperly failed to hold a hearing or make findings
pursuant to Faretta v. California, 422 U.S. 806 (1975) before accepting Joshua Adkins’ guilty
plea. See Tinsley v. Commonwealth, 185 S.W.3d 668, 674 (Ky. App. 2006).
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whether Adkins qualifies as being indigent. In so doing, the district court shall
permit the public advocate to appear at the hearing.
For the foregoing reasons, the Order of the circuit court is reversed,
and this cause is remanded with directions that the circuit court remand to the
district court for the purpose of holding a hearing and rendering findings of fact
and conclusions of law as to whether Adkins is indigent.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE:
FOR APPELLANT:
Daniel Cameron
Adam Meyer Attorney General of Kentucky
Department of Public Advocacy Frankfort, Kentucky
Frankfort, Kentucky
Christopher S. Nordloh
Special Assistant Attorney General
Covington, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Christopher S. Nordloh
Special Assistant Attorney General
Covington, Kentucky
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