RENDERED: AUGUST 25, 2016
TO BE PUBLISHED
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2015-SC-000377-MR LI 1-1
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DONALD HOWARD APPELLANT
ON APPEAL FROM CARROLL CIRCUIT COURT
V. HONORABLE REBECCA LESLIE KNIGHT, JUDGE
NO. 15-CR-00005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING, IN PART, VACATING IN PART, AND REMANDING
Donald Howard entered an open guilty plea to five counts of first-degree
trafficking in a controlled substance, second offense. He was sentenced to ten
years' imprisonment with a $1,000 fine on each count with two counts running
consecutively for a maximum twenty-year total sentence.
He now appeals that judgment as a matter of right', contending that the
trial court's imposition of the statutory maximum sentence was
unconstitutional and that the court erred by imposing a partial fee to the
public defender and court costs. We hold that the trial court did not err in
sentencing Howard, assessing court costs, or imposing a partial fee for the
public defender. We agree that the trial court erred by imposing the criminal
1 Ky. Const. § 110(2)(b).
fines, so we vacate the criminal fines imposed in the judgment and remand the
case to the trial court for entry of a conforming judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND.
In addition to Howard, the prosecution involved his two sons, Thomas
Howard and Travis Howard, and a fourth person, Lloyd Lee. The four men, in
various levels of involvement for each transaction, sold prescription pain pills
to a confidential informant, Larry Fry. Fry, then on probation himself for
trafficking in a controlled substance, was the only confidential informant used
in this case.
On the first transaction, Howard and Thomas sold two pills to Fry. A
similar transaction occurred two days later. Then, Howard sold four more pills
to Fry. And a similar transaction occurred again several days later. One month
later, Howard set aside six pills for Travis to sell, which he did. A short time
later, all four were arrested and charged with trafficking in a controlled
substance.
Howard entered an open, unconditional guilty plea to all five counts of
the trafficking charges. When Howard entered his plea, the trial court warned
him that he could be sentenced to a maximum of twenty years and, without a
guilty-plea agreement with the Commonwealth, the court could impose up to
the maximum sentence.
In determining Howard's sentence, the trial court considered the nature
of his current charges and his criminal history and considered him a danger to
the community and his family members by involving his sons in the drug trade.
2
The trial court imposed the maximum twenty years' imprisonment. Howard
considers it noteworthy that he received a harsher sentence that all of his co-
defendants. 2
The trial court also imposed a series of fees and a fine: $600 public
defender partial fee, a $1,000 fine, and court costs. Howard's counsel moved
the trial court to waive these expenses, but the trial court denied his motion.
Howard was ordered to make monthly payments of $100 beginning 90 days
after his release; the court informed him that if he failed to make timely
payments he would be returned to jail.
Howard now appeals to this Court, contending that his sentence was
unconstitutional and that the imposition of the fine and fees by the trial court
was erroneous.
II. ANALYSIS.
A. The Trial Court did not Abuse Its Discretion by Imposing the
Statutory Maximum Sentence.
Howard's first claim of error is that the trial court abused its discretion
in imposing the maximum sentence of twenty years for his trafficking offenses.
He alternatively invokes two constitutional provisions in support of his theory.
First, he argues that his rights under the Double Jeopardy Clause of the Fifth
2 Thomas Howard was offered five years on two Class C trafficking counts and a
$1,000 fine, five years on one Class D possession of a controlled substance charge,
and twelve months and a $500 fine for possession of drug paraphernalia—all charges
would run concurrently for one five year sentence. Travis Howard was offered five
years on one trafficking charge. Lloyd Lee was offered five years on each trafficking
charge to run concurrently for a five year total sentence, in addition to a $1,000 fine.
The record reflects that the prosecutor distinguished the co-defendants from Howard
because the pills sold were originally prescribed to Howard.
3
Amendment3 were violated because the repeated sales of oxycodone over the
course of a short period of time is a continuing course of conduct rather than
six distinct charges. And second, he alleges that imposition of the maximum
sentence is disproportionate to his offense and consequently is contrary to the
Eighth Amendment's 4 prohibition of "cruel and unusual punishments."
1. Abuse of discretion.
Kentucky statutory law affords trial courts immense discretion in setting
criminal penalties. 5 As the Commonwealth correctly acknowledges, trial courts
retain discretion in decreasing unduly harsh sentences 6 , in granting or denying
probation7 , and in determining whether a defendant should serve sentences
concurrently or consecutively. 8 In reaching sentencing decisions, Kentucky law
does require trial courts to consider certain factors. For example, the trial court
must consider the contents of the written Pre-Sentencing Investigation (PSI)
Report9 , and it must also consider the effect of a sentence on a defendant's
potential future criminal behavior. 19 But because such decisions are ultimately
committed to the trial court's sound discretion, we review these rulings for an
3 U.S. Const. amend. V ("...nor shall any person be subject for the same offense
to be twice put in jeopardy or life or limb...").
4 U.S. Const. amend VIII ("Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.").
5 See generally Kentucky Revised Statutes (KRS) Chapter 532.
6 KRS 532.070.
7 KRS 532.040.
8 KRS 532.110.
9 KRS 532.050.
19 KRS 532.007.
4
abuse of discretion. So we will not disturb the trial court's sentencing
determination unless convinced that its decision was "arbitrary, unreasonable,
unfair, or unsupported by sound legal principles."u
In support of his claim that the trial court abused its discretion in setting
his sentence, Howard relies primarily on our holding in Edmonson v.
Commonwealth. 12 In Edmonson, we held that the defendant was entitled to a
new sentencing hearing because the trial court had already made up its mind
on the appropriate punishment before the hearing. The trial court's discretion
"must be exercised only after the defendant has had a fair opportunity to
present evidence at a meaningful hearing in favor of having the sentences run
concurrently or present other matters in mitigation of punishment." 13 We
cautioned trial judges that "the statutes and rule are not mere procedural
formalities, but are substantive and may not be ignored." 14
Howard contends that the trial court in his case similarly had no
intention of considering any factors in mitigation of punishment.
Unfortunately, he offers no proof that the trial court failed to consider his
mitigating circumstances. But in support of his theory, Howard points to
several pieces of evidence he offered at trial that he believes warranted a lighter
sentence. This includes his rationalization that he was not dealing hard drugs
and only sold the pills to assist a friend (Fry) who was supposedly in pain. He
11 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1995).
12 725 S.W.2d 595 (Ky. 1987).
13 Id. at 596.
14 Id.
5
offered to assist the Commonwealth as a confidential informant—a route taken
by Fry to avoid harsher punishment. And Howard suggests that his medical
condition at the time of sentencing should have influenced the trial court to
impose a lesser sentence. He claims he had a serious back condition, heart
trouble, spinal stenosis, and he was completely disabled. Howard concludes
that the only way the trial court could have sentenced him to the statutory
maximum under these circumstances is if the trial court failed truly to
consider mitigation at all.
But, as the Commonwealth rightly notes, Howard knowingly,
intelligently, and willingly entered into an open guilty plea expressly
acknowledging this sentence was a possible outcome. The trial court thrice
engaged in a colloquy with Howard about the implications of his open plea, and
each time Howard acknowledged he wanted to proceed under these
circumstances.
The record indicates that the trial court observed the proper sentencing
procedures. The trial court acknowledged receipt and review of the PSI report
and both parties' sentencing memoranda and contemplated other factors,
including Howard's prior criminal history. There is simply no indication that
the trial court summarily dismissed Howard's position before first considering
it.
As for the trial court's motivations for imposing a harsher sentence, the
trial court relied on a variety of factors. First, the court noted its disfavor with
Howard's use of his sons in a drug trafficking enterprise. This factor is
6
certainly not dispositive because Howard's sons were adults with their own
criminal backgrounds, but we do not fault the trial court for using this fact as
one aspect of her criterion. In making its sentencing decision, the trial court
also pointed to Howard's criminal history for the exact same offense. Howard
had a previous felony conviction for this exact same charge—first-degree
trafficking in a controlled substance. 15 While he was on parole for that
conviction, he was indicted again for the same offense and ultimately pled
guilty to a lesser misdemeanor charge. But Howard's propensity for re-
offending after release bolstered the trial court's determination that Howard
presented a danger to himself and the community and led to the decision to
impose the statutory-maximum sentence.
When Howard entered the open guilty plea, he knowingly accepted the
fact that this sentence was a possibility. There is no indication that the trial
court failed to follow proper sentencing procedures, and the sentencing
decision was based on a number of factors, including Howard's recidivism after
two earlier convictions for the same activity. So we cannot conclude that the
trial court's sentencing decision was "arbitrary, unreasonable, unfair, or
unsupported by sound legal principles." The trial court did not abuse its
discretion in imposing the twenty-year maximum sentence.
2. Double Jeopardy.
Howard next claims that his sentence violated the double-jeopardy
clauses of the Fifth Amendment to the United States Constitution and Section
15 This prior offense is why Howard's trafficking charge was enhanced from a
Class D felony to the harsher sentences associated with Class C felonies.
7
13 of the Kentucky Constitution. 16 The text of the Kentucky constitutional
provision bears remarkable similarity to its Fifth Amendment counterpart, and
we have previously held that Kentucky's double jeopardy provision
encompasses identical protections. 17 And double jeopardy issues may be raised
on appeal regardless of whether Howard properly preserved the issue below. 18
Howard claims the Double Jeopardy Clause was violated through the
Commonwealth's choice to characterize his criminal activity as a series of
individual violations rather than one continuous course of criminal conduct.
And to be sure, under KRS 505.020, a defendant may not be convicted of
multiple offenses when "the offense is designed to prohibit a continuing course
of conduct and the defendant's course of conduct was uninterrupted by legal
process, unless the law expressly, provides that specific periods of such conduct
constitute separate offenses." He sold the pills to the same person in similarly
small quantities over a relatively short period of time. So he suggests that the
legislature intended, in drafting KRS 218A.1412, to allow aggregation of small
quantities in a short timespan to constitute one count of trafficking. Or, in
other words, his position is that instead of being charged with several Class C
felonies, he should have been charged with one Class D offense.
16 "No person shall, for the same offense, be twice put in jeopardy of his life or
limb..."
17 See Wilson v. Commonwealth, 438 S.W.3d 345, 351 (Ky. 2014). See also Little
v. Commonwealth, 422 S.W.3d 238, 248 (Ky. 2013) (federal and state double jeopardy
clauses guarantee the same right).
18 See Menna v. New York, 423 U.S. 61 (1975); Brooks v. Commonwealth, 217
S.W.3d 219, 221-22 (Ky. 2007).
8
Unfortunately for Howard, we have already addressed this precise issue.
In Gray v. Commonwealth, we held that multiple counts of trafficking in a
controlled substance do not violate double jeopardy protections. 19 We have
since staked a firm position on the course-of-conduct doctrine in our method of
statutory interpretation. In Williams v. Commonwealth, we held that as a basic
rule of construction, if the text does not refer to a course of conduct and
instead only refers to singular and specific acts, each offense may be charged
individually. 20 Howard asks us to revisit and overrule these decisions without
offering any meritorious arguments for why they were incorrect. Without a
compelling reason undermining our opinion in Gray, we see no reason to
compromise that position today. Because Gray is binding precedent to this
Court, we accordingly hold that Howard's sentence did not violate the Double
Jeopardy Clauses of the United States and Kentucky Constitutions.
3. Cruel and unusual punishment.
Howard contends that the punishment imposed by the trial court violates
the prohibition of cruel-and-unusual punishments under the Eighth
Amendment to the United States Constitution and Section 17 of the Kentucky
Constitution. 21 He asserts that the sentence he received was disproportionate
to both the severity of the crime he committed and incongruent with
punishments meted out to his co-defendants. Howard has not preserved this
979 S.W.2d 454, 455 (Ky. 1998), overruled on other grounds by Morrow v.
19
Commonwealth, 77 S.W.3d 558 (Ky. 2002).
20 178 S.W.3d 491, 495 (Ky. 2005).
21 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel
punishment inflicted."
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issue for appeal and urges us to review this issue for palpable error under
Kentucky Rule of Criminal Procedure (RCr) 10.26. Under that standard, we will
not grant him relief unless we find that "a manifest injustice has resulted" from
the trial court's error. 22
In Riley v. Commonwealth, we established a three-part test for analyzing
the proportionality of a contested sentence. 23 On review, an appellate court
should consider: (1) the gravity of the offense and harshness of the penalty; (2)
the sentences imposed on other criminals in the same jurisdiction; and (3) the
sentences imposed for commission of the same crime in other jurisdictions. 24
TheUnitdSasuprmCohlecgnizdtaroumy
punish recidivists more harshly than a first-time offender. 25 This essentially
leaves us to comb through the totality of the circumstances in Howard's case to
determine whether his sentence was constitutionally disproportionate. And we
hold that it was not.
As previously noted, Howard is a repeat offender with respect to
trafficking controlled substances. And in the present case he was charged with
multiple counts of the same offense. In fact, he was the only one of his co-
defendants to be involved in every drug transaction with the confidential
informant, which likely explains why he received a harsher punishment than
the other three members of this common criminal scheme. He is not
22 RCr 10.26.
23 120 S.W.3d 622 (Ky. 2003).
24 Id. at 633.
25 See Rummel v. Estelle, 445 U.S. 263, 268 (1980).
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challenging the validity of the sentencing structure for the crimes for which he
was convicted but instead chooses to assail the trial court's discretion in
selecting a punishment within the bounds fixed by the legislature. But most
importantly, Howard knowingly accepted the possibility of this sentence when
he entered his open guilty plea. All things considered, we cannot conclude that
the twenty-year sentence, while no doubt harsh, raises constitutional concerns
of arbitrary and unfair disproportionality.
B. The trial court did not err by imposing the fees but did err by
imposing the fine.
Howard argues that the fees associated with his prosecution were
improperly assessed against him. At the close of his case, the trial court
ordered that Howard pay court costs, a partial fee to the public defender of
$600, and a $1,000 criminal fine. Howard adequately preserved this issue by
moving the trial court to waive all costs and fines associated with his sentence,
arguing that he is a "poor person" exempt from such fees by statute. Our
authority to review criminal sentences is jurisdictional, and we maintain
inherent authority to cure defective sentencing with respect to fines and court
costs. 26
KRS 23A.205 states that court costs may not be waived unless the trial
court finds that the defendant is a "poor person" under KRS 453.190(2). There,
a "poor person" is defined 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
26 See Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010).
11
dependents of the necessities of life, including food, shelter, or clothing." 27
HowardurgesthisCourt oac epthis tausa "po rperson"forpurpose of
this statute to vacate the costs associated with his sentence. We address each
fee in turn.
First, the trial court did not err in imposing court costs. As KRS 23A.205
unambiguously states, trial courts do not have discretion to waive court costs
unless they make a factual determination that a defendant meets the statutory
standard as a "poor person." Howard supports his argument that he was
adjudged a poor person throughout his trial process because he was deemed
indigent for purposes of appointing appellate counsel. But in Spicer v.
Commonwealth, we directly rejected that argument, holding that a "defendant
who qualifies as 'needy' under KRS 31.110 because he cannot afford the
services of an attorney is not necessarily 'poor' under KRS 23A.205." 28 And
more importantly, "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.
If a trial court 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." 29 The record appears to indicate that the trial court had not previously
27 KRS 453.190(2).
28 442 S.W.3d 26, 35 (Ky. 2014).
29 Id. at 34.
12
determined Howard was a "poor person" for KRS 23A purposes, so the trial
court did not abuse its discretion imposing court costs.
As for the $600 public-defender partial fee, Howard claims he is not
subject to this cost because he was only represented by a public defender at
the time of sentencing, and proceeded in forma pauperis on appeal. But he did
have periodic private representation during various portions of this
prosecution. KRS 31.211 provides, in pertinent part, that:
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.
The trial court determined that Howard could contribute some amount to his
representation and found a reasonable basis to believe he would be able to pay
the fee within the foreseeable future. And we are not convinced the trial court
abused its discretion in assessing this partial fee.
Finally, the Commonwealth concedes that the trial court erroneously
imposed the $1,000 criminal fine. Howard had been previously adjudged an
"indigent" person for purposes of KRS Chapter 31. KRS 534.030(4) states that
fines "required by this section shall not be imposed upon any person
determined by the court to be indigent pursuant to KRS Chapter 31." Because
proceedings reflected Howard's indigent status, we agree that imposition of the
$1,000 criminal fine should be vacated.
13
III. CONCLUSION.
For the foregoing reasons, we affirm the trial court's judgment with
respect to Howard's twenty-year sentence and the imposition of court costs and
a public-defender partial fee, but we vacate that portion of the judgment that
imposes the $1000 criminal fine against Howard. We remand the case to the
trial court for entry of a new judgment consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Thomas Allen Van de Rostyne
Assistant Attorney General
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