Charles R. Cavins v. Commonwealth of Kentucky ( 2021 )

RENDERED: MAY 7, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0724-MR
CHARLES R. CAVINS APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
v. HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 16-CR-00012
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Charles Cavins appeals from a post-judgment order of the
Whitley Circuit Court denying his motion to waive costs and attorney fees imposed
as part of his judgment of conviction. He argues that the trial court erred by
imposing the fees without determining his ability to pay. For the reasons that
follow, we conclude that Cavins raised the issue timely and was entitled to a
hearing to determine whether he has or will have the ability to pay costs. We
further conclude that the trial court clearly erred by requiring Cavins to pay a
portion of his attorney fees. Hence, we affirm in part, reverse in part, vacate in
part, and remand for additional proceedings.
On January 19, 2016, a Whitley County grand jury indicted Cavins on
two counts of first-degree trafficking in a controlled substance (methamphetamine
and heroin, respectively), two counts of theft of identity, and one count of being a
first-degree persistent felony offender (PFO I). At his arraignment, the court found
Cavins indigent and appointed counsel from the Department of Public Advocacy.
Thereafter, on September 19, 2017, Cavins entered a guilty plea to one count each
of first degree trafficking in a controlled substance and theft of identity.
On September 29, 2017, the trial court entered a final judgment on the
plea of guilty, fixing his sentence at a total of five years’ imprisonment. The court
also ordered Cavins to pay court costs of $130, a fee of $10 to the Kentucky State
Police for Internet Crimes against Children Task Force, attorney fees of $450, and
$36 in restitution to the Kentucky State Police Lab.1 The court also added a 5%
service fee to each payment. The trial court directed Cavins to pay $50 per month
on these fees and costs until paid.
1
Cavins does not challenge the imposition of restitution on appeal.
-2-
On March 27, 2019, Cavins filed a motion to dispense with the costs
and fees pursuant to KRS2 453.190, KRS 31.110, and KRS 534.030. He argued
that the fees and costs were not appropriate because he was indigent. On April 22,
2019, the trial court denied the motion. This appeal followed.
Cavins argues that the trial court was not authorized to impose any
fees or costs on him because he had previously been found to be indigent for
purposes of KRS 31.120(1). However, court costs are not governed by KRS
31.120. Rather, court costs are mandatory “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.” KRS 23A.205(2). KRS 453.190(2), in turn, defines a “poor
person” as one “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.”
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. Spicer v.
Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014). And unlike an indigency
determination for public defender appointment, poor person status and the
imposition of court costs require consideration of the defendant’s present ability to
2
Kentucky Revised Statutes.
-3-
pay and his or her ability to pay in the foreseeable future. Elliott v.
Commonwealth, 553 S.W.3d 207, 211 (Ky. 2018) (citing Maynes v.
Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012)). Furthermore, the trial court is
not obligated to make a determination of the defendant’s status as a poor person
unless a request is made. Id.The Commonwealth cites to Rice v. Commonwealth, No. 2013-CA-
1812-MR, 2015 WL 5095158 (Ky. App. Aug. 28, 2015), as holding that a
defendant may waive the right to claim indigency in exchange for an otherwise
favorable plea agreement. But in Rice, the fine and costs were imposed as part of
the specific terms of the plea agreement. Id. at *1. Furthermore, the defendant in
Rice sought to convert his fine and court costs into a definite term of
imprisonment. This Court concluded that the motion was premature because that
remedy is only available after the fine has not been paid. Id. (citing KRS 534.060).
See also Elliott, 553 S.W.3d at 213.
In this case, the plea agreement is silent as to any specific fines or
costs, including only form language that “COURT COSTS, AND ANY FEES,
FINES OR RESTITUTION must be paid as assessed by the Court.”
(Capitalization and emphasis in original.) Unlike in Rice, there was no express or
implied agreement that Cavins would waive any objection to costs or fees as part
-4-
of his guilty plea. Therefore, we disagree with the Commonwealth that Cavins is
precluded from raising the issue now.
The Commonwealth further argues that there is no error because
Cavins did not request a finding that he was a “poor person” at the sentencing
hearing. Spicer, 442 S.W.3d at 35. Here, Cavins waived a final sentencing
hearing, so there was no opportunity to raise the issue until the final judgment was
entered. Under the circumstances, we conclude that Cavins was entitled to a
determination of whether he was a “poor person” as defined in KRS 453.190(2),
whether he is unable to pay court costs now, and whether he will be unable to pay
court costs in the foreseeable future. Thus, we remand this matter for an
evidentiary hearing and factual findings on these matters. We express no opinion
whether Cavins will be entitled to a waiver of court costs following that hearing.
Lastly, with respect to the imposition of attorney fees, KRS 31.211(1)
provides:
At arraignment, the court shall conduct a nonadversarial
hearing to determine whether a person who has requested
a public defender is able to pay a partial fee for legal
representation, the other necessary services and facilities
of representation, and court costs. The court shall order
payment in an amount determined by the court and may
order that the payment be made in a lump sum or by
installment payments to recover money for representation
provided under this chapter. This partial fee
determination shall be made at each stage of the
proceedings.
-5-
The trial court made the initial determination that Cavins was indigent
and entitled to appointment of counsel. There is no record of any hearing in which
the trial court later found good cause to determine Cavins should not continue to be
considered an indigent person. Without such findings, the trial court’s imposition
of a $450.00 attorney fee was improper. Spicer, 442 S.W.3d at 35. Therefore, we
must vacate that fee.
Accordingly, we vacate the sentence imposed by the Whitley Circuit
Court requiring Cavins to pay attorney fees. We reverse the sentence imposed
requiring Cavins to pay costs and remand this matter for a hearing and additional
findings, concerning Cavins’ ability to pay the amount now and in the foreseeable
future. We affirm the remaining portions of the trial court’s judgment and
sentence.
TAYLOR, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS AND FILES SEPARATE
OPINION.
THOMPSON, K., JUDGE, CONCURRING: I concur as I agree that
it is appropriate to vacate attorney fees and reverse and remand for a hearing
regarding Cavins’s ability to pay costs. I write separately to address the imposition
of facially invalid restitution.
-6-
In the final judgment, the trial court ordered Cavins to pay $36 in
restitution to the Kentucky State Police Lab. No written explanation was given as
to why this restitution was due. I can only conclude that this amount may have
related to lab tests conducted to establish that the substances seized from Cavins
were in fact methamphetamine and heroin. There appears to be no valid basis for
ordering reimbursement of such lab costs to the Kentucky State Police Lab as
restitution.
“Restitution” is defined as meaning “any form of compensation paid
by a convicted person to a victim for counseling, medical expenses, lost wages due
to injury, or property damage and other expenses suffered by a victim because of a
criminal act[.]” Kentucky Revised Statutes (KRS) 532.350(1)(a). As explained in
Fields v. Commonwealth, 123 S.W.3d 914, 918 (Ky.App. 2003), “even where there
is a guilty plea, the record must establish an adequate factual predicate for a
restitution order.”
In Vaughn v. Commonwealth, 371 S.W.3d 784, 786 (Ky.App. 2012),
the Court reversed restitution orders requiring payment for extradition expenses,
explaining: “the Commonwealth simply was not a victim who suffered a loss as a
result of criminal acts committed by the Appellants; consequently, the trial courts
were without statutory authority to order the Appellants to pay restitution to the
Kentucky State Treasury for extradition expenses. See KRS 532.350(1)(a).”
-7-
Cases from our sister courts explain when the government does and
does not qualify as a victim for purposes of restitution. They contrast the
government’s entitlement to restitution when it is a victim as a direct result of
criminal conduct (such as when a suspect causes damage to a police vehicle) from
the collateral expenses that are normally incurred for regular law enforcement
activities. See City of Centerville v. Knab, 2019-Ohio-1903, ¶¶ 24-34, 136 N.E.3d
808, 814-16 (2019); State v. Shears, 920 N.W.2d 527, 539 (Iowa 2018); People v.
Ford, 2016 IL App (3d) 130650, ¶ 29, 49 N.E.3d 954, 959-60 (2016); State v.
Storlie, 2002 WI App 163, ¶ 8, 256 Wis. 2d 500, 505, 647 N.W.2d 926, 928
(2002); People v. Barnett, 237 A.D.2d 917, 918, 654 N.Y.S.2d 918, 919 (N.Y.
App. Div. 1997); State v. Depaoli, 835 P.2d 162, 163-64 (Utah 1992). Under this
reasoning, lab fees for drug testing are not considered to be appropriate for
restitution because a state’s lab is not a “victim” of the crime committed. Aguilar
v. State, 279 S.W.3d 350, 353-54 (Tex. App. 2007).
While there are states that do permit trial courts to order convicted
felons to pay lab fees, payment is ordered pursuant to statutes directly authorizing
such payment as a cost rather than pursuant to their restitution statutes. See, e.g.,
State v. Jones, 216 N.C. App. 519, 528, 718 S.E.2d 415, 422 (2011); Daniels v.
State, 656 So. 2d 251, 251-52 (Fla. Dist. Ct. App. 1995). We do not have an
analogous statute.
-8-
The Commonwealth failed to provide any factual basis to establish
that Kentucky State Police Lab is a victim entitled to restitution and it appears that
such restitution was wholly unjustified. I caution the Commonwealth and trial
courts that pursuing and imposing restitution where there is no victim is
unauthorized by KRS 532.350(1)(a) and if appropriately challenged, warrants
reversal. However, because Cavins failed to raise this issue, he waived any error.
Accordingly, I concur.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy
Frankfort, Kentucky Leilani K.M. Martin
Assistant Attorney General
Frankfort, Kentucky
-9-