IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDE NC
2019-SC-000189-MR
KEVIN IPINA-GARCIA
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE LUCY ANNE VANMETER, JUDGE CASE NO. 17-CR-00152
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Kevin Ipina-Garcia entered a conditional guilty plea to murder, first-degree
wanton endangerment, and tampering with physical evidence and was
sentenced to thirty-three years of imprisonment. His plea was conditioned on
his ability to appeal the trial court’s denial of his motion to suppress
statements that he made to the police during his interrogation. He now appeals
that denial of his motion to suppress and argues that the warnings given prior
to his interrogation did not comply with the requirements of Miranda v.
Arizona, 384 U.S. 436 (1966), thereby violating the Fifth Amendment of the
United States Constitution and Section 11 of the Kentucky Constitution. He
also asks this Court to review the trial court’s final judgment to the extent it
ordered him to pay $165.00 in court costs. Having reviewed the record and the arguments of the parties, we hereby affirm the decision of the Fayette Circuit
Court.
I. BACKGROUND
On November 24, 2016, fourteen-year-old Angel Juarez was fatally shot in
Lexington, Kentucky. Lexington police quickly identified Ipina-Garcia as a
suspect based on witness statements, and they attempted to locate him.
However, he was not at his home and his family informed police that he was
fleeing to North Carolina. Lexington police pinged Ipina-Garcia’s cell phone and
found him traveling on 1-64 in West Virginia. The Lexington officers then
relayed this information to West Virginia police officers, who apprehended
Ipina-Garcia on November 25, 2016. He was taken to the Western Regional Jail
just outside of Huntington, West Virginia. That same day, Detective Bill Brislin
and Detective Steven McCowan traveled to the Western Regional Jail to speak
with Ipina-Garcia. Officer Lorenzo Bueno, a native Spanish-speaker,
accompanied the two officers to act as an interpreter because the officers were
unsure if Ipina-Garcia spoke English.
The interview lasted approximately one hour and twenty-one minutes. At
the outset, Detective Brislin provided Miranda warnings to Ipina-Garcia in
English. He read these warnings from a pre-printed form. The form did not
have the Miranda warnings printed in Spanish, however.1 Rather, Officer
Bueno interpreted the English version of the Miranda warnings to Spanish.
1 There was some confusion at the suppression hearing as to whether Officer Bueno read the Miranda warnings from the form. He initially testified that the form had the warnings written in English at the top and Spanish at the bottom, and he had
2 Officer Bueno testified at the suppression hearing that after he finished
his recitation of the Miranda warnings, Ipina-Garcia responded in the
affirmative. More specifically, he testified that Ipina-Garcia responded “yes”
multiple times when asked if he was clear on what had just been read to him
and if he understood his rights. When asked if the “yes” on the audio recording
was his own voice, rather than Ipina-Garcia’s, Officer Bueno clarified that he
would only have said “yes” if Ipina-Garcia first said “yes.” Detective Brislin
similarly testified that Ipina-Garcia responded in the affirmative. He testified
that Ipina-Garcia nodded his head to indicate that he understood his rights.
However, he also testified about a verbal acknowledgment, saying, “I don’t
think you can clearly hear [Ipina-Garcia’s] acknowledgment on the audio”
because Ipina-Garcia is “very soft-spoken.”
The officers then interrogated Ipina-Garcia about Juarez’s death. Detective
Brislin lead the interrogation, and Officer Bueno interpreted. Detective Brislin
testified that he would ask a question in English, and Officer Bueno would
then repeat that question in Spanish. Ipina-Garcia would then answer the
question in Spanish, and Officer Bueno would translate the answer into
English for Detective Brislin. Detective Brislin testified that Ipina-Garcia
appeared to understand what Officer Bueno was asking him. According to
Detective Brislin, Ipina-Garcia understood some English because he would nod
read directly from the Spanish version. However, he was shown a copy of the form, which did not have the Spanish text on it. He then clarified that he referred to the English on the form and interpreted the English version into Spanish for Ipina-Garcia.
3 his head in response to Detective BrisEn or otherwise looked like he
understood what Detective Brislin was saying. Officer Bueno also testified that
Ipina-Garcia appeared to understand what was being said and was able to
respond to the questions. He testified that he heard no protestation and no
request to repeat any questions or statements, nor did Ipina-Garcia ever state
that he was unclear about something or ask to stop the interview. Ipina-Garcia
ultimately admitted to fatally shooting Juarez.
At the conclusion of the interview, the detectives advised Ipina-Garcia
that he was being charged with murder. They thanked him for taking the time
to speak to the officers and reminded him that he had not been obEgated to
speak to them, and that was why he had been read his Miranda rights. Ipina-
Garcia then commented, “Thank God, I feel better having gotten it off my
chest.”
Ipina-Garcia was ultimately charged with murder, first-degree wanton
endangerment, and tampering with physical evidence. He filed a motion to
suppress the statements made during his interrogation. He argued that the
Miranda warnings, as interpreted by Officer Bueno, were insufficient and the
waiver of those rights was involuntary.
At the suppression hearing, Detective BrisEn and Officer Bueno testified
on behalf of the Commonwealth. The defense caEed one witness: Nidia Pecol, a
certified court interpreter and professional translator and interpreter. Pecol
testified that she had listened to the audio recording of the interview. During
her testimony, the defense attorney, who did not speak any Spanish, repeated
4 certain Spanish phrases from Officer Bueno’s recitation of the Miranda
warnings, and Pecol explained why she believed these phrases were
problematic. For example, Officer Bueno used the term “franqueado,” but Pecol
testified that “franqueado” could mean many things (to open the way to
something, to clear the way to something, to pay a tariff and free something
from customs, etc.). After reviewing a handful of these terms and phrases,
Pecol testified that Officer Bueno’s interpretation was “very poor Spanish” and
she did not believe it was an effective interpretation of the Miranda rights. She
also testified that a head nod does “not necessarily” mean “yes” in Hispanic
culture; rather, it is often used to show that one is paying attention to the
speaker.
The trial judge2 orally denied the motion to suppress. He explained on
the record:
The court’s going to note that Officer Bueno testified that at the time of this interview in November of [2016] that he was working with the Lexington Police Department. He was bilingual and biliterate. He grew up speaking Spanish, spoke Spanish language daily on the job and in the home. He testified that he read his— read Miranda warnings to suspects or defendants on a daily basis during the twenty plus years of his career. He testified that he had a dialogue with Mr. Garcia and that he believed Mr. Garcia understood the conversation and was able to understand what he was being told. As the defense points out, in [Duckworth v. Eagan, 492 U.S. 195 (1989)], the Miranda warnings have to be reasonably conveyed. I think we’ve heard here from them, your own transcript, that those were reasonably conveyed. I would agree it’s probably a better practice to have a pre-printed Miranda warning typed in Spanish for all officers. Had that been done here, I think it might
2 At the time of the suppression hearing, Judge John Reynolds was serving as interim judge after the retirement of Judge James Ishmael Jr. Judge Lucy VanMeter then began presiding over this case after her election to the bench.
5 have been a little bit easier to get through this, but it doesn’t have to be specific, it just has to be reasonably conveyed, and I think the evidence shows it was, so I will overrule the motion to suppress.
Ipina-Garcia ultimately entered a conditional guilty plea reserving his
right to appeal the trial court’s denial of his suppression motion. The trial
judge3 issued a final judgment to reflect this plea and sentenced Ipina-Garcia
to thirty-three years of imprisonment. The final judgment also ordered Ipina-
Garcia to pay $165.00 in court costs. Ipina-Garcia now appeals the trial court’s
denial of his suppression motion, as well as the trial court’s imposition of court
costs.
II. ANALYSIS
Ipina-Garcia presents two arguments on appeal. He first argues that the
trial court erred in denying his motion to suppress because the Miranda
warnings provided by Officer Bueno were inadequate. He next argues that the
trial court erred in assessing court costs against him, as he is a “poor person”
under Kentucky Revised Statute (“KRS”) 23A.205(2). We address each
argument in turn.
A. Motion to Suppress
As noted above, Ipina-Garcia contends that the Miranda warnings, as
interpreted by Officer Bueno, were inadequate, and his waiver of his Miranda
rights was therefore invalid. He argues that, due to the invalid waiver, the
3 Judge Lucy VanMeter was presiding over this case at the time the final judgment was entered.
6 admission of his statements would violate his right against self-incrimination
under the Fifth Amendment of the United States Constitution and Section 11 of
the Kentucky Constitution. Thus, he argues, the trial court erred in denying
his motion to suppress these statements.
When reviewing a trial court’s denial of a motion to suppress, we first
“defer to the trial court’s factual findings if they are supported by substantial
evidence and only review such findings for clear error.” Bond v. Commonwealth,
453 S.W.3d 729, 732 (Ky. 2015) (citations omitted). “[W]hen the findings of fact
are supported by substantial evidence, we review the court’s application of the
law to those facts de novo.” Id. (citation omitted). When doing so, “we take care
'to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.”’ Id. (quoting Ornelas v. United States, 517 U.S.
690, 699 (1996)).
In this case, we must consider whether the Miranda warnings provided to
Ipina-Garcia were inadequate, thereby rendering his Miranda waiver invalid.
On this point, we first note that it is the Commonwealth’s burden to show that
Ipina-Garcia knowingly, intelligently, and voluntarily waived his Miranda
rights. Mills v. Commonwealth, 996 S.W.2d 473, 482 (Ky. 1999), overruled on
other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010).
However, “the Commonwealth only needs to prove waiver of Miranda rights by
a preponderance of the evidence.” Id. (citing Colorado v. Connelly, 479 U.S. 157,
168 (1986)).
7 We next turn to the case cited by the trial court judge, Duckworth v.
Eagan, 492 U.S. 195 (1989). In that case, the Supreme Court of the United
States explained, “We have never insisted that Miranda warnings be given in
the exact form described in [Miranda v. Arizona].” Id. at 202. In fact, the Court
had previously explained that “the ‘rigidity’ of Miranda [does not] exten[d] to the
precise formulation of the warnings given a criminal defendant,” and that “no
talismanic incantation [is] required to satisfy its strictures.” Id. at 202-03
(quoting California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam)) (internal
quotation marks omitted). Rather, “[t]he inquiry is simply whether the
warnings reasonably ‘convefy] to [a suspect] his rights as required by Miranda.”
Id. at 203 (quoting Prysock, 453 U.S. at 361). More specifically, Miranda
requires that the person “be warned that he has a right to remain silent, that
any statement he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or appointed.”
Miranda, 384 U.S. at 444. In Duckworth, the warnings, in their totality,
“touched all of the bases required by Miranda.” 492 U.S. at 203.
Since Duckworth, the Kentucky Supreme Court has also considered the
adequacy of Miranda warnings in various cases. For example, in Smith v.
Commonwealth, No. 2003-SC-000236-MR, 2004 WL 2364596 (Ky. Oct. 21,
2004), the defendant argued that the Miranda warnings provided to him failed
to adequately inform him that he could consult with an attorney prior to police
questioning. We disagreed, noting that Smith was read his rights twice before
the interrogation began, and each time he indicated that he understood his
8 rights. Id., at *4. He was “specifically informed of his right to have an attorney
appointed and present during the questioning” as well as his right to stop the
interrogation at any time. Id. We held that “these two warnings, given
simultaneously, essentially informed [Smith] that he could consult with an
attorney at any time, even before questioning.” Id. In other words, “[t]he
warnings provided an adequate and understandable appraisal of [Smith’s]
rights, and did not materially mislead [Smith] in any way.” Id. (citing United
States v. Caldwell, 954 F.2d 496, 504 (8th Cir. 1991)).
We reached a similar conclusion in Coleman v. Commonwealth, No.
2007-SC-000834-MR, 2009 WL 1110314 (Ky. Apr. 23, 2009). In that case, we
considered whether the following Miranda warnings were sufficient: “You’ve got
the right to remain silent. Anything you say can and will be used against you in
a court of law. You’ve got the right to an attorney. If you can’t afford an
attorney one will be appointed to you free of charge.” The defendant challenged
the adequacy of these warnings, arguing that he was not fully informed that he
had a right to an attorney during questioning. We ultimately held that the
warnings “reasonably conveyed [the Miranda] rights to Coleman, and in
particular adequately conveyed that his right to an attorney began
immediately, prior to questioning, and thus clearly implied that the right
applied during questioning as well.” Id., at *4. Thus, despite lacking that
specific language, the warnings had “reasonably conveyed” to Coleman his
Miranda rights. See also Ragland v. Commonwealth, 191 S.W.3d 569, 585 (Ky.
2006) (“Miranda does not require a “talismanic incantation’ as long as the
9 warnings adequately advise the suspect of his Miranda rights.” (citing Prysock,
453 U.S. at 359-60)).
Ipina-Garcia points to another Kentucky Supreme Court case, Rivera-
Reyes v. Commonwealth, No. 2005-SC-000488-MR, 2006 WL 2986495 (Ky.
Oct. 19, 2006), for support. In that case, Rivera-Reyes was arrested on rape
charges and subsequently made incriminating statements to the police.
However, prior to making these statements, Rivera-Reyes had signed a Spanish
version of the Miranda rights waiver form and initialed beside each of the
enumerated rights. Rivera-Reyes later moved to suppress his statements to
police. Relevant to the current appeal, Rivera-Reyes argued that the
interpreting police officer was not a competent interpreter and his lack of
proficiency in Spanish rendered Rivera-Reyes’s waiver involuntary.
On this point, we first acknowledged that “language barriers are certainly
factors to be considered.” Id., at *6. However, we distinguished the facts of
Rivera-Reyes’s case from cases in other jurisdictions in which a defendant’s
waiver had been found to be involuntary. In those cases, the defendant was
advised of his rights in English only, or never responded to the Miranda
warnings, or asked questions that clearly indicated some confusion about the
warnings. Rivera-Reyes, on the other hand, had been provided with a Spanish
version of his Miranda rights, he signed the form he had been provided,
initialing each of the enumerated rights, and he made no indication that he
was confused. In fact, Rivera-Reyes never asked for an attorney and he had
indicated to the officers that he understood his rights. We therefore held that
10 the interpreting officer’s lack of proficiency in Spanish did not render the
Miranda waiver involuntary.
Ipina-Garcia attempts to distinguish his case from Rivera-Reyes. He first
notes that there was no form with a Spanish translation for Officer Bueno or
Ipina-Garcia to read. Rather, Officer Bueno spontaneously interpreted the
Miranda warnings from English to Spanish, and his interpretation was
troublesome. In addition, Ipina-Garcia argues that he did not clearly
acknowledge his Mirada rights. There was no signed waiver form, and he
argues that there was no verbal acknowledgement by Ipina-Garcia. Instead,
Ipina-Garcia contends that he only gave a head nod, which can mean
something different than “yes” in Hispanic culture. In sum, Ipina-Garcia argues
that, given the incompetent interpretation and the lack of a signed waiver form,
the Commonwealth failed to meet its burden to show that Ipina-Garcia was
properly informed of his rights and knowingly, intelligently, and voluntarily
waived those rights.
We disagree. We believe that the Miranda warnings provided to Ipina-
Garcia reasonably conveyed to him his constitutional rights and were not
materially misleading. Our analysis requires a closer look at Officer Bueno’s
interpretation. At the suppression hearing, the Commonwealth played portions
of the audio recording of the transcript, including Detective Brislin’s recitation
of the Miranda rights in English:
We’re police officers. You have the right to remain silent. You do not have to make any statement or answer any questions. Any statement you do make or any questions you do answer may be
11 repeated at any later hearing or trial, whether it be for you or against you, or for or against any other person. If you decide to make a statement or answer any questions, you need to know that if you change your mind, you have the right to stop giving your statement or answering any questions at any time. You have the right to speak with a lawyer before making any statement or answering any questions. You have the right to have a lawyer here with you during any questioning. If you cannot afford to hire a lawyer, the court can appoint one for you.
The Commonwealth also played Officer Bueno’s interpretation of these rights
and would periodically pause to allow Officer Bueno to explain what he had
said. According to this testimony, Officer Bueno’s recitation of the Miranda
warnings was as follows:
Kevin, do you understand we’re police officers? We’re from Lexington. We’re reading you your rights. You’re not obligated to speak with us. You have the absolute right to remain silent. You don’t have to speak to us. Do you understand so far? Kevin, do you understand that if you do decide to speak with us here and now, whatever is said here, whatever is discussed here, can be used against you in front of a tribunal,4 and that obviously is going to be used against you, whatever you talk about here. If you do decide to speak to us, you can have an attorney present. If you can’t afford an attorney, one can be appointed for you. At any time during this interview, an attorney can be present here for you. If you do decide that you want an attorney present, the attorney would be provided for you free of charge.
Pecol, who testified on behalf of the defense, interpreted Officer Bueno’s
reading of the Miranda rights as follows:5
Look Kevin, we are officers, we are police, understand? You have the right to keep silence, maintain the silence. You know that you are not obligated to make any, give us not one word, direct any comment, but to understand, if you decide to participate in this
4 At the suppression hearing, Officer Bueno clarified that “tribunal” is the “the word [he used] in Spanish, meaning court of law.” 5 When providing this interpretation, Pecol included filler words like “uh” and “um.” We have omitted those filler words in this Opinion.
12 interview, what is talked here could be used against you, or what is, also what is talked here could be used against you in a court, much later. And if you decide, during the interview, that you don’t want to talk with us, you can also say, “That’s it, no more, I wouldn’t want to talk with you.” If you wish to talk with an attorney before the interview, that also goes. You could communicate with an attorney. And if you decide that you want, that you would want an attorney here present with you, that also goes. And if you cannot pay an attorney, the service would be allowed in your favor, (unintelligible) free, you know what I mean? Do you understand what I’m saying? Okay.
At the suppression hearing, Pecol testified about the parts of Officer Bueno’s
recitation that she found troublesome. However, even though Officer Bueno’s
interpretation may not have been an exact recitation of the English version,
there is “no talismanic incantation” required to satisfy Miranda. Duckworth,
492 U.S. at 203 (quoting Prysock, 453 U.S. at 359) (internal quotation marks
omitted). Instead, we ask only whether the officer reasonably conveyed the
Miranda rights to the defendant.
Here, Officer Bueno’s interpretation may have differed slightly from the
pre-printed English version read by Detective Brislin; however, it did not
materially alter the substance of the Miranda warnings. Instead, his
interpretation adequately advised Ipina-Garcia that he had the right to remain
silent, that any statement he made could be used as evidence against him, and
that he had a right to the presence of an attorney, who could be appointed for
him if he could not afford an attorney. These are precisely the procedural
safeguards that the Miranda warnings are intended to convey. See Miranda,
384 U.S. at 444 (“Prior to any questioning, the person must be warned that he
has a right to remain silent, that any statement he does make may be used as
13 evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed.”); Rivera-Reyes, 2006 WL 2986495, at *5. These
warnings are conveyed in both Officer Bueno’s interpretation printed above and
in Pecol’s interpretation of Officer Bueno’s interpretation.
The testimony at the suppression hearing indicates that, when asked if
he understood these rights and if he wished to speak to the officers, Ipina-
Garcia responded in the affirmative by nodding his head and verbally stating
“yes.” According to the undisputed testimony of both Officer Bueno and
Detective Brislin, Ipina-Garcia appeared to understand the questions presented
to him and responded to those questions appropriately. He never asked for a
break or to stop the interview, nor did he give any indication that he did not
understand the questions or his Miranda rights. Under these circumstances,
we believe that the Commonwealth met its burden of demonstrating that Ipina-
Garcia’s waiver was knowing, intelligent, and voluntary.
Accordingly, under the facts of this case, we hold that the Miranda
warnings given to Ipina-Garcia reasonably conveyed to him his constitutional
rights. His waiver of his Miranda rights was therefore valid, and the trial court
did not err in denying his motion to suppress.
B. Order to Pay Court Costs
Ipina-Garcia next argues that the trial court erred in ordering him to pay
$165.00 in court costs. He argues that the trial court had appointed a public
defender to represent him and had also allowed him to proceed in forma
pauperis on the present appeal, and it was therefore error to impose court
14 costs. Additionally, he notes that such court costs were not specifically
referenced in his guilty plea document or in the judgment on the guilty plea,
nor did the trial court specifically mention court costs at the guilty plea hearing
or the final sentencing.
Ipina-Garcia correctly refers to the imposition of court costs as a
sentencing issue, citing Jones v. Commonwealth, 527 S.W.3d 820 (Ky. App.
2017). As such, the issue is not subject to waiver and can be raised for the first
time on appeal. Id. at 822. However, because the alleged error was
unpreserved, we must review it for palpable error under Kentucky Rule of
Criminal Procedure (“RCr”) 10.26. Id. Under that rule, an appellate court may
consider “[a] palpable error which affects the substantial rights of a party . . .
even though insufficiently raised or preserved for review” and grant relief “upon
a determination that manifest injustice has resulted from the error.”
Under KRS 23A.205(2),
The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, 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.
Ipina-Garcia argues that he qualifies as a poor person under this statute and
he is unable to pay his fines in the foreseeable future. However, no hearing was
ever held to determine if Ipina-Garcia qualifies as a poor person. Instead, he
points to the trial court’s initial determination that he was indigent, thereby
15 entitling him to the assistance of a public defender, and the court’s order
allowing him to proceed in forma pauperis on appeal.
We have previously explained the difference between a poor person and
an indigent person. See Elliott v. Commonwealth, 553 S.W.3d 207, 211 (Ky.
2018) (citing Maynes v. Commonwealth, 361 S.W.3d 922, 928-29 (Ky. 2012)). A
poor person in this context is one
who has an income at or below one hundred percent (100%) on the sliding scale of indigency established by the Supreme Court of Kentucky by rule or is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing.
KRS 453.190(2). An indigent person, on the other hand, “is one who is unable
‘to provide for the payment of an attorney and all other necessary expenses of
representation.’” Elliott, 553 S.W.3d at 211 (citing Maynes, 361 S.W.3d at 929).
Thus, “(i]ndigency and public defender appointment determinations require a
present tense analysis, while poor person status and the imposition of court
costs require consideration of the defendant’s present ability to pay and his or
her ability to pay in the foreseeable future.” Id. (citing Maynes, 361 S.W.3d at
929). “It is therefore well settled that an indigent defendant receiving the
services of appointed counsel is not automatically entitled to a waiver of court
costs.” Id.
Furthermore, when the trial court does not make a determination
regarding the defendant’s status as a poor person, or the defendant fails to
16 request such a determination, we will not review the imposition of court costs.
We have explained,
The assessment of court costs in a judgment fixing sentencing is illegal only if it orders a person adjudged to be poor to pay costs. Thus, while an appellate court may reverse court costs on appeal to rectify an illegal sentence, we will not go so far as to remand a facially-valid sentence to determine if there was in fact error. 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. This is because there is no affront to justice when we affirm the assessment of court costs upon a defendant whose status was not determined. It is only when the defendant’s poverty status has been established, and court costs assessed contrary to that status, that we have a genuine sentencing error to correct on appeal.
Id. (quoting Spicer v. Commonwealth, 442 S.W.3d 26, 29 (Ky. 2014)).
Accordingly, a defendant seeking to avoid court costs must ask the trial court
to determine whether he or she qualifies as a “poor person” under KRS
23A.205(2). If the defendant fails to request that determination, and the trial
court does not otherwise presume that the defendant is a poor person before
imposing costs, “there is no error to correct on appeal.” Id. (quoting Spicer, 442
S.W.3d at 29); see also Nunn v. Commonwealth, 461 S.W.3d 741, 753 (Ky.
2015) (“[N]othing in the record reveals that Appellant sought a determination of
‘poor person’ status under KRS 23A.205.”).
In the present case, the trial court did not make a determination as to
whether Ipina-Garcia was a poor person under KRS 453.190(2) or whether he
was unable to pay court costs and would be unable to pay said costs in the
foreseeable future. Ipina-Garcia did not request the trial court to make this
17 determination. Accordingly, there is no illegal sentence for this Court to review,
nor is there any error in the trial court’s decision.
III. CONCLUSION
For the reasons set forth above, we hereby affirm the decision of the
Fayette Circuit Court.
Minton, C.J.; Hughes, Keller, Lambert, Nickell, and Wright, JJ., sitting.
All concur. VanMeter, J., not sitting.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
Peny Thomas Ryan Assistant Attorney General