Robert Frazier v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 2, 2023
• Docket: 2022 CA 000484
• Status: Unknown

Opinion

RENDERED: FEBRUARY 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0484-MR

ROBERT FRAZIER APPELLANT

APPEAL FROM FULTON CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD, JUDGE ACTION NO. 21-CR-00077

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING AND REMANDING

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BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.

EASTON, JUDGE: The trial court entered a judgment against the Appellant

(Frazier) upon his guilty plea to various charges, including trafficking in

marijuana. As part of the sentencing, the trial court imposed jail fees of $320 for

the sixteen days Frazier had been in the Fulton County Detention Center. Frazier

appeals the imposition of the jail fees. Because the record does not contain

required evidence for the imposition of such fees, we vacate and remand. This Court has reviewed the sentencing hearing on February 24, 2022. The

trial court orally imposed the jail fees during that hearing. The trial court then

entered a written order imposing the jail fees. Any error in the imposition of the

jail fees was not preserved by a simultaneous objection to the fees at the time of

sentencing. “Nonetheless, since sentencing is jurisdictional it cannot be waived by

failure to object. Thus, sentencing issues may be raised for the first time on

appeal[.]” Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010) (internal

quotation marks and citations omitted). Frazier then requests palpable error

review. RCr1 10.26.

The trial court judge did not have the benefit of the Kentucky

Supreme Court’s decision in Capstraw v. Commonwealth, 641 S.W.3d 148 (Ky.

2022), which was rendered on the same day as the sentencing in this case. The

Supreme Court in Capstraw established that the imposition of jail fees pursuant to

KRS2 441.265(2)(a) requires evidence of the fees policy enacted by the county to

be presented at the sentencing hearing.

The Kentucky Supreme Court followed Capstraw with the

unpublished decision in Williams v. Commonwealth, No. 2021-SC-0493-MR, 2022

1 Kentucky Rules of Criminal Procedure. 2 Kentucky Revised Statutes.

-2- WL 12211935 (Ky. Oct. 20, 2022). In Williams, the same trial court judge3 in

Capstraw had tried to address the concern about evidence of the jail fees policy by

taking judicial notice of the policy as noted in the judgment imposing the fees.

The Supreme Court found this insufficient yet recognized the ruling as a “highly

technical” application of the rule announced in Capstraw. Williams, 2022 WL

12211935, at *2.

The Supreme Court in Williams did not determine the taking of

judicial notice was not permitted for this purpose. Rather, if that manner of

admitting evidence is chosen, an opportunity to object to judicial notice must be

provided. KRE4 201(e). We note the Commonwealth asks this Court to take

judicial notice of the policy enacted by Fulton County. We decline to do so. The

question of required evidence should be first addressed by the trial court.

We recognize the rules of evidence, which would include the rule for

judicial notice, do not apply to a sentencing hearing. KRE 1101(d)(5). We then

take from the Capstraw and Williams decisions a requirement that some evidence

of the enacted county policy must be provided on the record. Similarly, a good

practice could include providing evidence for the number of days or other expenses

for which reimbursement may be ordered.

3 The author of this Opinion is the same former Hardin Circuit Court judge. 4 Kentucky Rules of Evidence.

-3- This issue of jail fees should not become a burden for sentencing

hearings. Calling witnesses to establish jail fees ordinances and fees incurred is

not necessary. Upon remand, it should suffice for the record to include a copy of

the policy with a print-out of the jail fees claimed by the county. A practice could

be instituted to create a standard submission by the Commonwealth (perhaps with

the county preparing it as they seek the collection of the fees) for the sentencing

record. Regardless of how the trial court decides to address the issue, this Court

has no choice but to vacate and remand the imposition of the fees under our

Supreme Court’s recent decisions.

The order of the Fulton Circuit Court imposing jail fees is VACATED

and REMANDED for proceedings consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Steven J. Buck Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

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