Brian Perry v. Commonwealth of Kentucky

RENDERED: AUGUST 25, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1394-MR
BRIAN PERRY APPELLANT
APPEAL FROM BATH CIRCUIT COURT
v. HONORABLE DAVID A. BARBER, JUDGE
ACTION NO. 20-CR-00012
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Brian Perry appeals the order of the Bath Circuit Court, entered
on November 14, 2022, revoking his probation. After careful review of the record,
briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On February 20, 2020, Perry was indicted for first-degree possession
of a controlled substance (methamphetamine), first offense, and possession of drug
paraphernalia. On July 2, 2020, Perry agreed to plead guilty to an amended charge
of second-degree possession of a controlled substance and the drug paraphernalia
charge in return for a sentence of 12 months, which the Commonwealth ultimately
agreed would be probated. Perry waived a separate sentencing hearing due to the
probation of his sentence. On July 7, 2020, the trial court entered a written
judgment and sentence pursuant to these terms and imposed $165.00 in court costs
to be paid within 90 days.
On September 28, 2022, Perry was arrested on a bench warrant issued
on November 5, 2020, following a reported probation violation. On October 6,
2022, the trial court subsequently appointed the Department of Public Advocacy to
represent Perry at the probation revocation hearing. After an evidentiary hearing
on November 3, 2022, the trial court revoked Perry’s probation and ordered he
serve his original sentence. This appeal followed.
LEGAL ANALYSIS
On appeal, Perry argues he qualifies as a “poor person” under KRS1
453.190(2), and as a result, the trial court erred by imposing court costs against
him. Perry concedes this issue is unpreserved but asserts it constitutes a sentencing
matter which may be raised for the first time on appeal. Alternatively, he requests
review for palpable error. See Commonwealth v. Moore, 664 S.W.3d 582, 590
1
Kentucky Revised Statutes.
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(Ky. 2023) (footnotes omitted) (“[T]he trial court and appellate court have inherent
authority to correct an unlawful sentence at any time, [and] a defendant may raise a
sentencing issue through any of the following relief mechanisms: direct appeal,
with the standard of review being abuse of discretion even when the sentencing
issue is not preserved; RCr[2] 11.42; CR[3] 60.02; or a writ of habeas corpus.”).
In response to Perry’s arguments, the Commonwealth first contends
that Perry’s notice of appeal challenging the trial court’s November 14, 2022, order
revoking probation is silent concerning court costs and, therefore, cannot provide
relief from payment of these costs. Moreover, the Commonwealth notes that it was
the trial court’s order of judgment and sentence entered on July 7, 2020, which
imposed court costs, and maintains that Perry’s argument is unpreserved for
appellate review due to his failure to timely appeal that order. Finally, the
Commonwealth argues that Perry’s claim does not involve a sentencing issue
because the trial court never entered a finding relating to “poor person” status. See
Spicer v. Commonwealth, 442 S.W.3d 26, 34-35 (Ky. 2014). We agree with the
Commonwealth on all three arguments.
“When an issue has not been addressed in the order on appeal, there is
nothing for us to review.” Owens v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App.
2
Kentucky Rules of Criminal Procedure.
3
Kentucky Rules of Civil Procedure.
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2017) (footnote and citations omitted). Thus, a reversal of the November 14, 2022,
revocation order will not grant the relief requested since it contains no provision
concerning court costs.
In the alternative, Perry’s brief specifically “requests that this Court
reverse the court costs portion of the final judgment.” (Emphasis added.) In Ready
v. Jamison, 705 S.W.2d 479, 482 (Ky. 1986), the Kentucky Supreme Court held
that the doctrine of substantial compliance applies when a notice of appeal
misidentifies the order appealed from, and “the judgment appealed from can be
ascertained within reasonable certainty from a complete review of the record on
appeal and no substantial harm or prejudice has resulted to the opponent.” To the
extent we can construe this appeal as intending to challenge the July 7, 2020,
judgment and sentence, Perry’s notice of appeal was filed over two years after
entry of that order in violation of the 30-day filing requirement set forth by RAP4
2(A)(3), and substantial compliance will not cure an untimely filed appeal. See
Excel Energy, Inc. v. Commonwealth Institutional Sec., Inc., 37 S.W.3d 713, 716-
17 (Ky. 2000); Demoss v. Commonwealth, 765 S.W.2d 30, 32 (Ky. App. 1989)
(“The appellate court lacks jurisdiction unless the notice is seasonably filed.”).
While the courts of the Commonwealth have inherent authority to cure an unlawful
sentence at any time, that authority can only be exercised once its jurisdiction has
4
Kentucky Rules of Appellate Procedure.
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been established. See Smothers v. Lewis, 672 S.W.2d 62, 65 (Ky. 1984) (emphasis
added) (“[A] court, once having obtained jurisdiction of a cause of action, has, as
incidental to its general jurisdiction, inherent power to do all things reasonably
necessary to the administration of justice in the case before it . . . .”).
Even if Perry’s claim was properly preserved for review, we would
nevertheless find no error. “Under KRS 23A.205(2), the imposition of court costs
is mandatory ‘unless the court finds that the defendant is a poor person as defined
by KRS 453.190(2) and that he or she is unable to pay court costs and will be
unable to pay the court costs in the foreseeable future.’” Constant v.
Commonwealth, 603 S.W.3d 654, 662 (Ky. App. 2020). “If a trial judge was not
asked at sentencing to determine the defendant’s poverty status and did not
otherwise presume the defendant to be an indigent or poor person before imposing
court costs, then there is no error to correct on appeal.” Spicer, 442 S.W.3d at 35.
“A sentencing error only occurs when a defendant’s poverty status is clearly
established and the trial judge imposes costs contrary to that finding.” Roe v.
Commonwealth, 493 S.W.3d 814, 831 (Ky. 2015), as modified (May 5, 2016), as
corrected (Nov. 14, 2016).
On July 2, 2020, during Perry’s sentencing, no request was made of
the trial court to determine his poverty status for purposes relating to court costs.
Despite this, the trial court inquired on its own accord as to Perry’s previous and
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current employment and education status, and Perry informed he was unemployed,
never had a job, and dropped out of high school. However, the trial court did not
enter an express finding as to Perry’s “poor person” status based on this
information. Regardless, it does not clearly establish such status because the
record is silent regarding his capacity to pay court costs within the foreseeable
future. See KRS 23A.205(2); Maynes v. Commonwealth, 361 S.W.3d 922, 929
(Ky. 2012) (emphasis added) (“[T]he KRS 23A.205 directive to consider not only
the defendant’s present ability to pay court costs but also his ability ‘in the
foreseeable future’ cannot be overlooked.”). At that time, Perry was a 21-year-old
individual whose sentence was probated. There was nothing to indicate he could
not secure income to cover the nominal costs within the required deadline imposed,
and further, the fact he was appointed an attorney based on indigent status does not
automatically preclude imposition of court costs. See Maynes, 361 S.W.3d at 929-
30, 933 (“[W]e conclude that the trial court was authorized under Kentucky law to
impose court costs despite [Appellant’s] status as an indigent defendant entitled to
the services of a public defender. . . . [Appellant] was to be released from custody
pursuant to his diversion agreement, and so . . . he could reasonably be expected in
the near future to acquire the means to pay the relatively modest court costs of
$130.00. . . . The restoration of . . . freedom [is] also the restoration of [the] ability
to work, and so justified the trial court’s order that [the Appellant] pay the
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statutorily mandated court costs pursuant to KRS 23A.205.”). Thus, we find no
error in the trial court’s imposition of court costs, and this appeal does not present
a sentencing issue or any other issue otherwise properly preserved for appellate
review.
CONCLUSION
For the reasons discussed above, the order of the Bath Circuit Court is
hereby AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer Wade Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
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