Chase Stone v. Commonwealth of Kentucky ( 2023 )

RENDERED: MARCH 24, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0394-MR
CHASE STONE APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 21-CR-00122
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
THOMPSON, CHIEF JUDGE: Chase Stone appeals the trial court’s imposition of
court costs. Appellant argues that he is a poor person and the costs should have
been waived. We agree; therefore, we vacate the portion of Appellant’s conviction
that requires him to pay court costs. We remand for the entry of a new judgment
and sentence which waives the court costs.
FACTS AND PROCEDURAL HISTORY
On March 18, 2022, Appellant was sentenced to two years in prison
pursuant to a guilty plea.1 He was also ordered to pay $185 in court costs and a
$25 bond fee, for a total of $210 in court costs and fees. Appellant had secured his
release prior to sentencing by paying $150 toward a partially secured bond.2 At
sentencing, the court indicated that it was going to release the bond and apply the
$150 toward the court costs and fees. Appellant was then ordered to pay the
remainder of the costs and fees by March 1, 2023. Appellant appeals the
imposition of court costs.
ANALYSIS
This issue was not preserved for review; therefore, we will review it
for palpable error. Jones v. Commonwealth, 527 S.W.3d 820, 822 (Ky. App.
2017).
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
1
We note that this two-year term was to run consecutively with a six-year term of imprisonment
stemming from another conviction for a total of eight years in prison.
2
Appellant’s bond was $1,500, but he was allowed to post a partially secured bond in the
amount of $150. This was ten percent of the full bond amount.
-2-
Kentucky Rules of Criminal Procedure (RCr) 10.26. “[I]f upon consideration of
the whole case the reviewing court does not conclude that a substantial possibility
exists that the result would have been any different, the error complained of will be
held to be nonprejudicial.” Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky.
App. 1986) (citation omitted). This Court has previously held that the imposition
of court costs on a poor defendant is palpable error. Jones, 527 S.W.3d at 822.
Kentucky Revised Statutes (KRS) 23A.205 states:
(1) Court costs for a criminal case in the Circuit Court
shall be one hundred dollars ($100).
(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.
(3) If the court finds that the defendant does not meet the
standard articulated in subsection (2) of this section and
that the defendant is nonetheless unable to pay the full
amount of the court costs, fees, or fines at the time of
sentencing, then the court may establish an installment
payment plan in accordance with KRS 534.020.
KRS 453.190(2) defines a poor person as “a person who . . . 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.”
-3-
On appeal, Appellant argues that he is a poor person and should not
have been ordered to pay the court costs and fees. We agree.
KRS 23A.205 contemplates three distinct and mutually
exclusive classifications of persons: (1) those who are
able to pay their costs, (2) “poor persons” who are not
required to pay court costs at all, and (3) those who are
not “poor persons,” yet nevertheless cannot pay
immediately and are entitled to enter into a payment plan.
Jones, 527 S.W.3d at 823. Here, during the sentencing hearing, the court asked if
Appellant could pay the full amount of the court costs. He responded in the
negative. Evidence in the record also indicates that, while Appellant is an able
bodied person who could conceivably hold a job, he was unemployed at the time of
sentencing.
In addition, Appellant moved to pursue his appeal in forma pauperis.
The trial court granted the motion on April 1, 2022, finding that he was a pauper
pursuant to KRS 453.190 and KRS 31.110(2)(b). KRS 31.110(2)(b) entitles a
“needy person” to representation by an attorney even if they cannot afford one.3
KRS 453.190(1), on the other hand, allows a “poor person” to proceed on appeal
without paying any costs. The case of Miller v. Commonwealth, 391 S.W.3d 857,
870 (Ky. 2013), held that an appellate court can consider whether a defendant was
3
A “needy person” for purposes of appointed counsel is not the same as a “poor person” for the
purposes of waiving court costs. Maynes v. Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012).
-4-
granted in forma pauperis status pursuant to KRS 453.190 in determining whether
court costs and fees should have been waived.
Finally, Appellant’s sentence was filled out on an AOC form. This
form has a section allowing a defendant to pay costs and fees pursuant to an
installment plan. This section was left blank by the court. Although Appellant
was given just under a year to pay the costs and fees, he was specifically not put on
an installment plan, his payment was only deferred. See Chadwell v.
Commonwealth, 627 S.W.3d 899 (Ky. 2021).
Taking all the above information into consideration, we conclude that
Appellant was a poor person who was entitled to have his court costs and bond fee
waived. Appellant stated he was unable to pay the remainder of the costs and fees
after the $150 was applied. He was also unemployed and was entering an eight-
year term of imprisonment. These facts indicate Appellant was unable to pay the
costs at present or within the foreseeable future; therefore, he does not fit within
the Jones classification number one. Appellant was also not put on an installment
plan; therefore, he does not fit within the Jones classification number three.
Finally, fourteen days after Appellant was sentenced, the trial court considered him
to be a poor person for the purposes of filing an appeal. Appellant could not pay
the full amount of the costs at sentencing, will not be able to pay for the
foreseeable future, and the trial court classified Appellant as a poor person for the
-5-
purposes of filing an appeal. This means that Appellant fits within the Jones
classification number two and the court costs and bond fee should have been
waived.
We believe the Jones case cited above supports our decision. In
Jones, another panel of this Court held that the imposition of $160 in court costs to
William Jones was erroneous. The Court held that Mr. Jones “had no job, assets or
income, was facing a three and one-half year prison sentence, and had nothing but
a phone card while in jail.” Jones, 527 S.W.3d at 823. The Court in Jones also
took into consideration the fact that the trial court considered Mr. Jones a poor
person for purposes of filing an in forma pauperis appeal. Id. at 824. A similar
situation is before us. Appellant was deemed a poor person for purposes of appeal,
he has no employment, he is facing a multiyear sentence, and it appears the only
asset he has is the $150 bond payment.
CONCLUSION
Based on the forgoing, we vacate that part of Appellant’s conviction
which required him to pay court costs and the bond fee. Appellant is a poor person
and those costs and fees should have been waived. The court’s conclusion to the
contrary was palpable error.
-6-
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia K. Pearson Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-7-