RENDERED: FEBRUARY 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0008-DG
DILLIAN FORD APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-1488 CARLISLE CIRCUIT COURT NO. 21-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING
This case is before the Court upon discretionary review from the Court of
Appeals’ opinion which affirmed the imposition of jail fees upon the Appellant,
Dillian 1 Ford. KRS 441.265(2)(a) allows a county jailer to adopt, with approval
of the county’s governing body, a jail reimbursement policy. In Capstraw v.
Commonwealth, we held that a trial court may not impose jail fees at
sentencing without “some evidence presented that a jail fee reimbursement
policy has been adopted by the county jailer with approval of the county's
governing body in accordance with KRS 441.265(2)(a).” 641 S.W.3d 148, 161-
62 (Ky. 2022).
1 The record refers to Appellant alternatively as Dillan or Dillian. His own brief
asserts the correct spelling is Dillan. The Commonwealth, however, refers to him as Dillian consistent with the original indictment and AOC court-tracking system. We follow the latter spelling for the same reasons. After review of the record below, we hold the Court of Appeals erred. Both
Ford and the Commonwealth agree that the only evidence in this record
regarding a jail reimbursement policy in Carlisle or McCracken County was the
stipulation by Ford that those two counties had an agreement whereby Carlisle
County would pay McCracken County twenty-six dollars a day for housing
inmates on its behalf. We agree with Ford that this stipulation is distinct from
the evidentiary burden required by Capstraw. As such, there is no evidence in
the record justifying the imposition of jail fees. That being the only issue before
this Court, that portion of Ford’s sentence is vacated.
Ford raises two arguments before this Court challenging the jail fees.
First, is the lack of evidence, which is the argument also presented to the Court
of Appeals. Second, and for the first time, he argues an amendment to KRS
441.265(1)(a) in 2022, effective by the time of his sentencing, removes the trial
court from the process of collecting jail fees. The latter argument does present
a valid question and is a sentencing issue as it challenges the authority of the
trial court to impose jail fees at sentencing. On the other hand, it is bound up
with the Commonwealth’s well-founded argument of lack of preservation. It
was not raised in the Court of Appeals below nor mentioned in the motion for
discretionary review.
This Court has inherent authority to cure illegal sentences. Chadwell v.
Commonwealth, 627 S.W.3d 899, 900-01 (Ky. 2021). But “[i]t is an unvarying
rule that a question not raised or adjudicated in the court below cannot be
considered when raised for the first time in this court.” Combs v. Knott Cnty.
2 Fiscal Court, 141 S.W.2d 859, 860 (Ky. 1940). Moreover, “[o]ur rules require a
party to address specifically each issue, the relevant law, and a statement as to
why the judgment below should be reviewed, in a motion for discretionary
review . . . [and] [f]ailure to comply with this rule precludes review.” Savage v.
Co-Part of Conn., Inc., 671 S.W.3d 48, 52 (Ky. 2023); RAP 44(c)(5). Our own
research does not reveal a previous case in Kentucky where these rules have
clashed. The courts of Virginia, the Old Dominion from which Kentucky
sprang, adhere to the rule that judicial decisions ought to be decided “on the
best and narrowest grounds available.” Levick v. MacDougall, 805 S.E.2d 775,
785 (Va. 2019); see also Air Courier Conf. of America v. American Postal Workers
Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring) (“Faithful adherence
to the doctrine of judicial restraint provides a fully adequate justification for
deciding this case on the best and narrowest ground available.”). The same can
be said here. The preserved evidentiary argument is the best and narrowest
ground available for resolving this issue, while avoiding the unpreserved
question of the statutory authority of a trial court to impose jail fees.
Proceeding to the merits, the Commonwealth and Ford agree that only
one piece of evidence exists in this record pertaining to the imposition of jail
fees—a stipulation which occurred at a pre-sentencing hearing on October 20,
2022. The following colloquy between the trial court and Ford’s trial counsel
occurred:
Trial Court: Does he want to have a hearing in regard to whether or not Carlisle County has a jail agreement—policy agreement with
3 McCracken to pay them for—Carlisle to pay McCracken twenty-six dollars a day? Counsel: No, your honor. Trial Court: He will stipulate to that? Counsel: He does, your honor. On November 17, 2022, Ford was sentenced to a total of fifteen years for the
underlying charges and a total of $10,972 in jail fees, representing the 422
days he had been held in custody.
In Capstraw, we vacated a sentence imposing jail fees “because there
was no evidence of record that the Hardin County jail had adopted a jail fee
reimbursement policy.” 641 S.W.3d at 161. Ford’s argument is simple: the
stipulation above pertained only to whether an agreement existed between
Carlisle and McCracken counties that the former would reimburse the latter for
housing its inmates at twenty-six dollars a day and is not a stipulation that
either county had a jail reimbursement policy approved by the county’s
governing body. We agree with this basic distinction and find the
Commonwealth’s arguments that Ford should not be allowed to back out of a
stipulation or that this issue is invited error unpersuasive.
Capstraw cited several unpublished decisions to highlight the need for a
published decision on this issue. Id. One of those cases involved a similar
inmate housing reimbursement policy. Campbell v. Commonwealth, No. 2020-
CA-0690-MR, 2021 WL 1051590, at *5 (Ky. App. Mar. 19, 2021). In Campbell,
the only evidence before the trial court for imposing jail fees was the existence
between Hickman and Ballard counties that the former would pay the latter
4 twenty-five dollars a day to house inmates on its behalf. The Court of Appeals
reversed, holding “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. Our citation to
Campbell in Capstraw was a clear indication of our approval of the reasoning of
that decision. An agreement between counties concerning reimbursement for
housing prisoners is not the same as a jail reimbursement policy promulgated
by the county jailer with the approval of county’s governing body, pursuant to
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RENDERED: FEBRUARY 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0008-DG
DILLIAN FORD APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-1488 CARLISLE CIRCUIT COURT NO. 21-CR-00057
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING
This case is before the Court upon discretionary review from the Court of
Appeals’ opinion which affirmed the imposition of jail fees upon the Appellant,
Dillian 1 Ford. KRS 441.265(2)(a) allows a county jailer to adopt, with approval
of the county’s governing body, a jail reimbursement policy. In Capstraw v.
Commonwealth, we held that a trial court may not impose jail fees at
sentencing without “some evidence presented that a jail fee reimbursement
policy has been adopted by the county jailer with approval of the county's
governing body in accordance with KRS 441.265(2)(a).” 641 S.W.3d 148, 161-
62 (Ky. 2022).
1 The record refers to Appellant alternatively as Dillan or Dillian. His own brief
asserts the correct spelling is Dillan. The Commonwealth, however, refers to him as Dillian consistent with the original indictment and AOC court-tracking system. We follow the latter spelling for the same reasons. After review of the record below, we hold the Court of Appeals erred. Both
Ford and the Commonwealth agree that the only evidence in this record
regarding a jail reimbursement policy in Carlisle or McCracken County was the
stipulation by Ford that those two counties had an agreement whereby Carlisle
County would pay McCracken County twenty-six dollars a day for housing
inmates on its behalf. We agree with Ford that this stipulation is distinct from
the evidentiary burden required by Capstraw. As such, there is no evidence in
the record justifying the imposition of jail fees. That being the only issue before
this Court, that portion of Ford’s sentence is vacated.
Ford raises two arguments before this Court challenging the jail fees.
First, is the lack of evidence, which is the argument also presented to the Court
of Appeals. Second, and for the first time, he argues an amendment to KRS
441.265(1)(a) in 2022, effective by the time of his sentencing, removes the trial
court from the process of collecting jail fees. The latter argument does present
a valid question and is a sentencing issue as it challenges the authority of the
trial court to impose jail fees at sentencing. On the other hand, it is bound up
with the Commonwealth’s well-founded argument of lack of preservation. It
was not raised in the Court of Appeals below nor mentioned in the motion for
discretionary review.
This Court has inherent authority to cure illegal sentences. Chadwell v.
Commonwealth, 627 S.W.3d 899, 900-01 (Ky. 2021). But “[i]t is an unvarying
rule that a question not raised or adjudicated in the court below cannot be
considered when raised for the first time in this court.” Combs v. Knott Cnty.
2 Fiscal Court, 141 S.W.2d 859, 860 (Ky. 1940). Moreover, “[o]ur rules require a
party to address specifically each issue, the relevant law, and a statement as to
why the judgment below should be reviewed, in a motion for discretionary
review . . . [and] [f]ailure to comply with this rule precludes review.” Savage v.
Co-Part of Conn., Inc., 671 S.W.3d 48, 52 (Ky. 2023); RAP 44(c)(5). Our own
research does not reveal a previous case in Kentucky where these rules have
clashed. The courts of Virginia, the Old Dominion from which Kentucky
sprang, adhere to the rule that judicial decisions ought to be decided “on the
best and narrowest grounds available.” Levick v. MacDougall, 805 S.E.2d 775,
785 (Va. 2019); see also Air Courier Conf. of America v. American Postal Workers
Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring) (“Faithful adherence
to the doctrine of judicial restraint provides a fully adequate justification for
deciding this case on the best and narrowest ground available.”). The same can
be said here. The preserved evidentiary argument is the best and narrowest
ground available for resolving this issue, while avoiding the unpreserved
question of the statutory authority of a trial court to impose jail fees.
Proceeding to the merits, the Commonwealth and Ford agree that only
one piece of evidence exists in this record pertaining to the imposition of jail
fees—a stipulation which occurred at a pre-sentencing hearing on October 20,
2022. The following colloquy between the trial court and Ford’s trial counsel
occurred:
Trial Court: Does he want to have a hearing in regard to whether or not Carlisle County has a jail agreement—policy agreement with
3 McCracken to pay them for—Carlisle to pay McCracken twenty-six dollars a day? Counsel: No, your honor. Trial Court: He will stipulate to that? Counsel: He does, your honor. On November 17, 2022, Ford was sentenced to a total of fifteen years for the
underlying charges and a total of $10,972 in jail fees, representing the 422
days he had been held in custody.
In Capstraw, we vacated a sentence imposing jail fees “because there
was no evidence of record that the Hardin County jail had adopted a jail fee
reimbursement policy.” 641 S.W.3d at 161. Ford’s argument is simple: the
stipulation above pertained only to whether an agreement existed between
Carlisle and McCracken counties that the former would reimburse the latter for
housing its inmates at twenty-six dollars a day and is not a stipulation that
either county had a jail reimbursement policy approved by the county’s
governing body. We agree with this basic distinction and find the
Commonwealth’s arguments that Ford should not be allowed to back out of a
stipulation or that this issue is invited error unpersuasive.
Capstraw cited several unpublished decisions to highlight the need for a
published decision on this issue. Id. One of those cases involved a similar
inmate housing reimbursement policy. Campbell v. Commonwealth, No. 2020-
CA-0690-MR, 2021 WL 1051590, at *5 (Ky. App. Mar. 19, 2021). In Campbell,
the only evidence before the trial court for imposing jail fees was the existence
between Hickman and Ballard counties that the former would pay the latter
4 twenty-five dollars a day to house inmates on its behalf. The Court of Appeals
reversed, holding “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. Our citation to
Campbell in Capstraw was a clear indication of our approval of the reasoning of
that decision. An agreement between counties concerning reimbursement for
housing prisoners is not the same as a jail reimbursement policy promulgated
by the county jailer with the approval of county’s governing body, pursuant to
KRS 441.265(1)(a). Therefore, when we said in Capstraw that “there must be
some evidence presented that a jail fee reimbursement policy has been adopted
by the county jailer with approval of the county's governing body in accordance
with KRS 441.265(2)(a)[,]” we meant it literally. 641 S.W.3d at 161-62. If the
Commonwealth does not put on evidence demonstrating the existence of such
a policy with the concomitant approval, then the evidentiary burden for jail fees
is not met and they cannot be imposed. That burden was not met below;
therefore, the jail fees were improperly imposed.
To be blunt, we cannot fathom why the Commonwealth would find it
difficult to submit a jail reimbursement policy into evidence, which presumably
would exist in some written format, as well as the public record of said policy
being approved by the county’s governing body which also presumably would
exist in some written format. Nor do we believe Capstraw was ambiguous in
requiring such evidence that would somehow confuse a trial court as to what
evidence would suffice to impose jail fees. If the jailers of a given circuit have
5 not promulgated a jail reimbursement policy pursuant to KRS 441.265(2)(a), or
if the governing bodies of the counties constituting that circuit have not
approved said policies, then the trial court must accept that fact and accept
that it may not impose jail fees in the applicable cases. If, however, a jail
reimbursement policy exists and has been approved by the appropriate
governing body in accordance with KRS 441.265(2)(a), then there is no excuse
for evidence of such not to be in the record. That is what Capstraw
unambiguously requires, and we reaffirm it.
The Court of Appeals is reversed and the trial court’s sentence imposing
jail fees is vacated; but nothing in this opinion pertains to the validity of the
fifteen-year sentence for the underlying convictions.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Aaron R. Baker Kathleen Kallaher Schmidt Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Elizabeth Hedges Shawn D. Chapman Assistant Solicitors General