Eric Daniels v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 15, 2022
• Docket: 2022 CA 000212
• Status: Unknown

Opinion

RENDERED: DECEMBER 16, 2022; 10:00 A.M. NOT TO BE PUBLISHED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-