RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0391-MR
ALEXANDER HILL APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 21-CR-00107
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2022-CA-0392-MR
ALEXANDER HILL APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 21-CR-00108
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART AND
VACATING IN PART
** ** ** ** **
BEFORE: EASTON, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This is a consolidated appeal of two criminal cases where
Appellant, Alexander Hill (Hill), pleaded guilty in the Ballard Circuit Court to two
counts of third-degree assault. He was sentenced to five years’ imprisonment for
each count, probated for a total of ten years. Hill appeals the court’s imposition of
fees and costs. For the following reason, we affirm the court’s final judgment in
part, and vacate in part.
Hill specifically argues that the circuit court erred when it levied the
jail fees against him, and that the final judgment should be corrected. He requests
palpable error review pursuant to RCr1 10.26 as follows:
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
Kentucky Rules of Criminal Procedure.
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For an error to rise to the level of palpable, it must be
easily perceptible, plain, obvious and readily noticeable.
Generally, a palpable error affects the substantial rights
of the party only if it is more likely than ordinary error to
have affected the judgment.
Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal quotation
marks and citations omitted). With this standard in mind, we turn to the record at
issue here.
The circuit court’s order imposing jail reimbursement fees stated that
“Ballard County had adopted a jail fee ordinance pursuant to applicable statute”
and that the applicable fees were $22.00 per day prior to July 1, 2021, and $30.00
per day after July 1, 2021. However, there is a discrepancy between the fee rates
used in the court’s separate order assessing jail fees, and those used in the final
judgment. The Commonwealth relies on the former, which assessed jail fees
totaling $5,028.00. Hill relies on the latter, which assessed jail fees at $5,274.00.2
However, both parties agree that Hill was also ordered to pay $185.00 in court
costs and $25.00 in other fees, in each of his two cases. We will first address the
jail fees, and then court costs.
2
Even this sum is unclear given that the daily rate is hand-written. It was to be repaid at a rate
of $50.00 per month.
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KRS3 441.265(1)(a) provides that a prisoner in a county jail “shall be
required . . . to reimburse the county for expenses incurred by reason of the
prisoner’s confinement . . . .” To facilitate the assessment of such fees, the county
jailer “may adopt, with the approval of the county’s governing body, a prisoner fee
and expense reimbursement policy . . . .” KRS 441.265(2)(a). However, our
Supreme Court has reiterated and emphasized that “in order to impose jail fees
against a criminal defendant during sentencing, there must be some evidence
presented that a jail fee reimbursement policy has been adopted by the county
[jailor] with approval of the country’s governing body in accordance with KRS
441. 265(2)(a).” Capstraw v. Commonwealth, 641 S.W.3d 148, 161-62 (Ky. 2022)
(footnote omitted). In the absence of such evidence, the Court concluded that “the
portion of the judgment whereby jail fees are imposed against him is hereby
vacated.” Id. at 162. In addition to Capstraw, we have addressed nearly identical
issues as follows:
[T]he Kentucky Supreme Court . . . clarified that “since
sentencing is jurisdictional it cannot be waived by failure
to object. Thus, sentencing issues may be raised for the
first time on appeal[.]” Capstraw v. Commonwealth, 641
S.W.3d 148, 161 (Ky. 2022) (quoting Travis v.
Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010)). In
Capstraw – contrary to the Commonwealth’s assertions –
the Kentucky Supreme Court found error where a circuit
court imposed jail fees, the defendant failed to preserve
3
Kentucky Revised Statutes.
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the issue, and the defendant requested palpable error
review. Id. at 161-62. As we have an identical situation
before us, we will follow the relevant precedent, i.e.,
Capstraw.
Daniels v. Commonwealth, No. 2022-CA-0212-MR, 2022 WL 17724283, at *2
(Ky. App. Dec. 16, 2022); and
Campbell correctly asserts that the trial court failed to
make any finding that the jailer adopted, with the
approval of the county’s governing body, a prisoner fee
and expense reimbursement policy under KRS
441.265(2)(a). In the absence of such a finding, the trial
court improperly imposed jail fees on Campbell.
Campbell v. Commonwealth, No. 2020-CA-0690-MR, 2021 WL 1051590, at *5
(Ky. App. Mar. 19, 2021), disc. review denied (Aug. 18, 2021).
Similarly, the record cited herein does not indicate that Ballard
County established a jail fee reimbursement policy pursuant to statute, or that such
a policy was presented to the circuit court when considering sentencing. See also
Alderson v. Commonwealth, No. 2022-SC-0071-MR, 2023 WL 4037704, at *15
(Ky. Jun. 15, 2023) (observing that evidence could be “as simple as the
Commonwealth Attorney providing a copy of the relevant ordinances”).
Therefore, the imposition of jail fees resulted in palpable error, and the order of the
Ballard Circuit Court imposing jail fees is VACATED.
Hill also asserts that the circuit court committed a clerical error by
assessing $185.00 in court costs, and that the correct amount permitted under KRS
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23A et seq. is $165.00. As a remedy, Hill states that “RCr 10.10 gives this Court
authority to order the trial court to enter an amended final judgment which reflects
the correct court costs of $165, not $185.” In response, the Commonwealth cites
Spicer v. Commonwealth:
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. Thus, while an appellate court may
reverse court costs on appeal to rectify an illegal
sentence, we will not go so far as to remand a facially-
valid sentence to determine if there was in fact error.
442 S.W.3d 26, 35 (Ky. 2014) (internal quotation marks omitted). We cannot
conclude that the assessment of $185.00 in court costs was erroneous, and certainly
not palpably erroneous. Therefore, the order of Ballard Circuit Court imposing
court costs AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE:
Julia K. Pearson Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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