Opinion
NO. 2011-CA-001290-MR
08-17-2012
LACY SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 11-CR-00047
OPINION
AFFIRMING IN PART, REVERSING IN PART,
VACATING IN PART, AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; NICKELL AND STUMBO, JUDGES. STUMBO, JUDGE: Lacy Smith entered a conditional guilty plea to one count of flagrant nonsupport and one count of being a first-degree persistent felony offender (PFO). He was sentenced to 10 years and ordered to pay $150 in court costs, $500 in public defender fees, and all past support restitution. Smith appeals the trial court's order denying his motion to amend the indictment and the court's assessment of court costs and public defender fees. The trial court correctly denied Smith's motion to amend the indictment. We also find that the trial court erred by assessing court costs because Smith is a "poor person." Finally, we find that the trial court did not hold a hearing to determine if Smith could pay his public defender fees. We therefore affirm the denial of Smith's motion to amend, vacate the imposition of court costs, and reverse and remand for a hearing to determine if Smith can pay his public defender fees.
On February 25, 2011, Smith was indicted by the Jessamine County Grand Jury for one count of flagrant nonsupport and one count of first-degree PFO. The indictment alleged that on or about December 8, 2006, Smith committed the offense of flagrant nonsupport when he persistently failed to provide child support pursuant to a known court order and that failure resulted in six consecutive months without payment and an arrearage in excess of $1,000. The PFO count stems from a previous conviction in February of 2002 for first-degree sexual abuse.
Smith moved to amend the PFO charge from first-degree to second-degree arguing that the pre-2006 amendments to the PFO statute applied. He claimed that he met the requirements for flagrant nonsupport in 2003; therefore, the pre-2006 PFO statute should apply. Smith argued that he was ordered to pay monthly child support on September 24, 2002, that he only made two payments, and that by February 24, 2003, his arrearages would have been in excess of $1,000. His argument is that it was at this point he had committed the crime of flagrant nonsupport, requiring the use of the 2003 version of the PFO statute, which would only allow him to be charged with second-degree PFO. The trial court denied the motion.
Under the pre-2006 PFO statute, the Commonwealth would need to prove Smith had been convicted of two prior felonies to charge him with first-degree PFO. Under the revised, 2006 version, only one prior felony is needed provided it was a sex crime against a minor. Smith's one prior felony was a sex crime against a minor.
Smith then entered a conditional guilty plea, reserving the right to appeal the trial court's denial of his motion to amend the indictment. The Commonwealth recommended a 5-year sentence, enhanced to 10 years by virtue of the PFO. Smith was sentenced accordingly. He was also ordered to pay court costs, public defender fees, and past support in restitution. This appeal followed.
Smith's first argument is that the trial court erred when it denied his motion to amend the indictment from first-degree PFO to second-degree PFO. We find no error because flagrant nonsupport is a continuing course of conduct.
KRS 530.050(2) states in relevant part:
A person is guilty of flagrant nonsupport when he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor or to a child adjudged mentally disabled, indigent spouse or indigent parent and the failure results in:
(a) An arrearage of not less than one thousand dollars ($1,000); or
(b) Six (6) consecutive months without payment of support[.]
Flagrant nonsupport is a continuing course of conduct crime. It does not occur at the precise moment there is a $1,000 arrearage or six consecutive months have passed without a support payment. The unpublished opinions Barbour v. Commonwealth, 2003 WL 22271333 (Ky. App. 2003), and Baker v. Commonwealth, 2004 WL 1416366 (Ky. App. 2004), are directly on point on this issue. As long as Smith met the elements of flagrant nonsupport at the date listed on his indictment, December 8, 2006, he can be charged with that crime. Because he was charged with flagrant nonsupport after the 2006 amendment of the PFO statute for conduct occurring after the amendment, he was properly charged with first-degree PFO.
Smith's other claim of error is that the trial court erred when it assessed court costs and a public defender fee against him. These errors were not preserved and Smith requests the issues be reviewed as palpable error under RCr 10.26.
Court costs shall be imposed on a defendant unless he is a "poor person." KRS 23A.205. 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." It has also been held that "[w]ithout some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper." Maynes v. Commonwealth, 361 S.W.3d 922, 930 (Ky. 2012). Additionally, because someone qualifies for a public defender does not automatically mean he or she is also a "poor person" for the purposes of paying court costs. Id.
We find this issue is ripe for reversal under palpable error. "Under KRS 23A.205(2), a trial court shall impose court costs on a defendant unless it finds that the defendant is a 'poor person.' In this regard, we have previously found it to be 'manifestly unjust' to impose court costs on an indigent defendant." Wiley v. Commonwealth, 348 S.W.3d 570, 574 (Ky. 2010)(citations omitted). In the case at hand, Smith was ordered to pay $150 in court costs, $500 in public defender fees, and all past support arrearages. He was also sentenced to a maximum prison sentence of 10 years. Because Smith has been ordered to pay his child support arrearage and could spend up to 10 years in prison, we find that he is a "poor person." Further, due to his lengthy prison sentence, we find it is apparent he will not be able to pay the court costs any time soon. We therefore reverse and vacate the imposition of court costs.
As for the public defender fee, KRS 31.211(1) states that "[a]t 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[.]" Smith claims that no such hearing was held. The Commonwealth neither confirms nor denies this allegation, but merely argues that the record is silent on this issue, which is consistent with Smith's contention that no such hearing was held. The KRS 31.211(1) hearing is mandatory; therefore, we reverse and remand pursuant to a finding of palpable error. McEntire v. Commonwealth, 344 S.W.3d 125, 128 (Ky. App. 2010). On remand, the trial court will hold a hearing to determine if Smith can pay the partial public defender fee assessed to him.
For the foregoing reasons we affirm the trial court's denial of Smith's motion to amend, reverse and vacate the court costs, and reverse and remand on the issue of the public defender fees.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Buck
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Frankfort, Kentucky