Blake Jeffreys v. Commonwealth of Kentucky

RENDERED: JANUARY 20, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0949-MR
BLAKE JEFFREYS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 20-CR-001599
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: In May of 2021, the Appellant, Blake Jeffreys (Jeffreys),
pled guilty to one count of promoting human trafficking. In doing so, Jeffreys
acknowledged that he had communicated with an undercover officer posing as a
minor who informed him that she was sixteen years old, and that they had agreed
to meet at a hotel to engage in commercial sexual activity. Jeffreys further
acknowledged that he had arrived at the hotel for the purpose of engaging in such
activity.
Jeffreys pled guilty to one count of promoting human trafficking on
May 14, 2021. The Jefferson Circuit Court probated Jeffreys’ one-year sentence
for a period of five years, and ordered him to pay the $10,000 human trafficking
service fee pursuant to KRS1 529.130. Jeffreys’ counsel requested that the court
waive the fee because of his client’s indigency, which was denied. However, the
court indicated that it would revisit that decision if Jeffreys’ probation officer later
recommended waiving the service fee and the law permitted doing so. The court
waived all other cost, fines, and fees, except a $10 per month probation fee.
Lastly, the court explained that the $10,000 fee could be paid over the course of the
five-year probation period.
ANALYSIS
Jeffreys raises two arguments on appeal. First, he argues that the trial
court erred by failing to waive the $10,000 fee based on his indigent status.
Second, he argues that the service fee is an excessive fine under the Eighth and
Fourteenth Amendments of the United States Constitution, and Section 17 of the
Kentucky Constitution. We will address each in turn. KRS 529.130 is titled
“Human trafficking victims service fee.” It provides as follows:
Any person convicted of an offense in KRS 529.100 or
529.110 shall be ordered to pay, in addition to any other
fines, penalties, or applicable forfeitures, a human
trafficking victims service fee of not less than ten
1
Kentucky Revised Statutes.
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thousand dollars ($10,000) to be remitted to the fund
created in KRS 529.140.
Although this issue is sufficiently preserved, waiver of the fee was only briefly
discussed during Jeffreys’ sentencing hearing, and we are without the benefit of
specific findings on the issue. On appeal, Jeffreys argues that, as a matter of first
impression, the human trafficking service fee should be waived pursuant to KRS
534.030(4), which forbids the imposition of fines upon an indigent person, as
required by that section. The fee at issue here is not included in that section. See
KRS 529.130. Therefore, Jeffreys is not entitled to a waiver pursuant to KRS
534.030(4).
In further support of his argument, Jeffreys cites Commonwealth v.
Moore, 545 S.W.3d 848, 853 (Ky. 2018) (holding that the DUI service fee was not
a fine). Ultimately concluding that the trial court did not abuse its discretion in
assessing the DUI fee, the Court elaborated as follows:
Even though the service fee is not a fine, it is
subject to waiver under KRS 534.020(3)(a)(1), which
may or may not result in complete elimination of the
defendant’s responsibility for payment of the service
fee. . . . The service fee must be imposed in all cases.
Only after its imposition can the court analyze a
defendant’s ability to pay by way of a show cause
hearing. If a defendant is unable to pay, “the court may
enter an order allowing additional time for payment,
reducing the amount of each installment, or modifying
the manner of payment in any other way.” KRS
534.020(3)(a)(1).
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Id. at 853-54. The same logic applies to a human trafficking service fee pursuant
to KRS 529.130. Accordingly, the circuit court did not abuse its discretion here.
As to his constitutional argument, Jeffreys concedes that this issue is
not properly preserved, and therefore seeks palpable error review pursuant to RCr2
10.26 as follows:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal, even
though insufficiently raised or preserved for
review, and appropriate relief may be
granted upon a determination that manifest
injustice has resulted from the error.
. . . For an error to rise to the level of palpable, it must be
easily perceptible, plain, obvious and readily noticeable.
Generally, a palpable error affects the substantial rights
of the party only if it is more likely than ordinary error to
have affected the judgment.
Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation
marks and citations omitted). We cannot say that the alleged error is “easily
perceptible, plain, obvious and readily noticeable.” Id. In fact, we cannot
conclude that it was an error at all. To do so would require this Court to first
categorize it as a fine, and then to assess its constitutionality under our state and
federal constitutions in what appear to be matters of first impression. This would
2
Kentucky Rules of Criminal Procedure.
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necessitate multiple substantive determinations by this Court that would bypass our
rules of preservation and negate the purpose of RCr 10.26. Therefore, we affirm
the judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Euva D. May Daniel Cameron
Kate Hatheway Attorney General of Kentucky
Louisville, Kentucky
Matthew F. Kuhn
Brett R. Nolan
Jeffrey A. Cross
Daniel J. Grabowski
Assistant Attorneys General
Frankfort, Kentucky
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