KY SC March 22 - Smith - Instructions and Court Costs

ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part. 

First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim.  But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim.  While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.

Contributed by Susan Balliet

Important New Court Costs Case - Maynes v. Commonwealth

DESEAN MAYNES V. COMMONWEALTH,

2010-SC-68-DG  - March 22, 2012, Affirming.

“Needy" persons under KRS 31.110 who qualify for DPA representation are no longer automatically immune from the court costs imposed by KRS 23A.205.  “A person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney and yet may not qualify as ‘poor’ under KRS 23A.205 unless he is also unable to pay court costs without ‘depriving himself or his dependents of the necessities of life, including food, shelter or clothing.’”  Under KRS 23A.205 the defendant must be able to pay court costs at the time of sentencing or "in the foreseeable future."  Since Maynes' plea agreement released him from prison, he would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205.

KRS 23A.205 requires imposition of court costs unless the defendant qualifies as a "poor person" defined as a person unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life. The restoration of Maynes' freedom was also the restoration of his ability to work, and so justified the trial court's order that he pay the statutorily mandated court costs pursuant to KRS 23A.205.

SENTENCING ALERT:  Trial counsel must now address court cost issues at sentencing and should put on evidence either that the sentence imposed is so long that the defendant should be exempt because he won’t be able to pay in the “foreseeable future,” or --if he will be released in the “foreseeable future”-- he should be exempt because he either has too many dependents, or is disabled or otherwise incapable of obtaining or holding a job.

Contributed by Susan Balliet

Featured Case - Buchanan - Costs

Gloria Buchanan v. Commonwealth

2010-CA-1120

Opinion dated October 28, 2011

Not to be published. 

The Court of Appeals, among other things, affirmed the trial court’s decision to impose “court costs, fines, and/or fees in the amount of $295.00” following Ms. Buchanan’s conviction of Wanton Exploitation of a Vulnerable Adult.  The Court of Appeals held that it was not palpable error in this case.  Trial Practice Tip: Object and argue that the client is a poor person and cannot pay court costs, fines, or fees.

Contributed by Robert Yang

9/16 Court of Appeals - Martin - Faretta hearing & Court Costs

Martin v. Commonwealth

10-CA-322 and 10-CA-1905

9/16/11 Court of Appeals opinion - To be published.

The Court of Appeals held the trial court should have held a Faretta hearing when: the client filed pre- and post-trial pro se motions; the trial court ruled on many of those motions; and the client was also receiving benefit of appointed counsel. By ruling on the pro se motions, the court treated Martin as a pro se litigant.  Accordingly, the court should have conducted a hearing, given the warnings required pursuant to Faretta, and made a finding that his waiver was voluntary and intelligently made. The Court’s failure to do so is reversible error.

 In a 2-1 decision, this panel also distinguished Travis and held that court costs were properly imposed as a condition of probation.  This panel found that the defendant had asked to be released from custody so he could work to support his family and that he was released on probation.  Based on his stated ability to work, the imposition of court costs was not a manifest injustice.  This issue was not preserved at the trial level, so it was reviewed under the palpable error standard.  If this is an issue important to the client, raise an objection to improve the odds of winning on appeal.

Contributed by Robert Yang

Martin - KY Court of Appeals 9/16/11 - Probation Revocation & Court Costs

Martin v. Commonwealth, 2010-CA-000322-MR and  2010-CA-001905-MR

To Be Published - OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Mr. Martin was charged with Burglary in the Second-degree.  He was found guilty and was placed on probation, which was later revoked.  The appeal of the conviction and that of the revocation were consolidated on appeal. 

Martin attacked his conviction by alleging that the Fayette Circuit Court had erred by not conducting a Faretta hearing prior to accepting, and ruling upon, pro se pleadings.  The Court agreed, but, interestingly, held that the Faretta violation did not impact the later revocation of probation, holding the revocation was not error. 

The majority also found no error in the imposition of court costs on Mr. Martin, an indigent as he had argued for probation “in order to maintain employment and to support his family.”  Dissenting, Judge Taylor argued that no distinction should be made between imposition of court costs on probated vs. no-probated indigents.

Contributed by Linda Horsman