Jones v. Commonwealth, 2010–SC–000328–MR.

• Decision Date: 22 December 2011
• Docket Number: No. 2010–SC–000328–MR.,2010–SC–000328–MR.
• Citation: 382 S.W.3d 22
• Parties: Thomas E. JONES, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

382 S.W.3d 22

Thomas E. JONES, Jr., Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000328–MR.

Supreme Court of Kentucky.

Dec. 22, 2011.

Samuel N. Potter, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, for appellant.

Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, for appellee.

Opinion of the Court by Justice VENTERS.

When Appellant, Thomas E. Jones Jr., pled guilty to third-degree rape and other charges, the trial court imposed a twenty-year prison sentence and ordered him to pay $288,000.00 in restitution, $175.00 in court costs, and a jail fee of $5,126,00. While he does not deny his guilt and he does not challenge the conviction or the prison sentence imposed for his crimes, he appeals to this Court as a matter of right under Ky. Const. § 110(2)(b) to challenge the pecuniary aspects of the sentence imposed.

Specifically, Appellant argues that restitution was imposed against him in a manner that violated his right to due process guaranteed under the Kentucky Constitution and the United States Constitution, as explained in Fields v. Commonwealth, 123 S.W.3d 914 (Ky.App.2003). He also contends that the trial court's judgment with respect to restitution exceeded the $100,000.00 limit established by KRS 533.030(3). Finally, he contends that the court costs and jail fee were assessed in violation of KRS 534.030(4) because he was before the court as an indigent person.

The Commonwealth concedes that the assessment of court costs was improper and so we will reverse that aspect of the judgment without further discussion. For the reasons set forth below, we also reverse the judgment insofar as it imposes restitution, and we remand this matter to the trial court for a new hearing on the question of restitution. We affirm the imposition of the jail fee.

I. BACKGROUND

On several occasions, Appellant, then 37 years old, had sex with K.E., a 15–year–old girl. As a result, she was infected with herpes. He also provided alcohol to K.E. and her underage friends at a New Year's Eve party. Appellant was subsequently indicted on three counts of third-degree unlawful transaction with a minor and one count of third-degree rape, one count of first-degree unlawful transaction with a minor, and being a first-degree persistent felony offender.

Appellant entered into a plea agreement with the Commonwealth in which he agreed to plead guilty to third-degree rape, first-degree unlawful transaction with a minor, and one of the three counts of third-degree unlawful transaction with a minor. In exchange, the Commonwealth agreed to dismiss the remaining charges, including the persistent felony offender charge, as well as other charges contained in an unrelated indictment in a different county. The Commonwealth also agreed to recommend prison sentences of fifteen years for the first-degree unlawful transaction, five years for the third-degree rape, and twelve months on the third-degree unlawful transaction charge, with no recommendation as to whether the sentences should be served concurrently or consecutively. There was no discussion of restitution.

Appellant entered his guilty plea as agreed. Other than the express terms of the plea agreement, Appellant's plea was without conditions.¹

At the sentencing hearing, the judge duly considered the pre-sentence investigation report and heard the Commonwealth's recommendation to impose the agreed upon sentence. Restitution was again not mentioned. The judge then permitted K.E. and her mother to address the court to describe the effects of Appellant's crimes upon their lives, including the fact that K.E. was infected with herpes. The mother said to the court that K.E. “has a lot of problems because of [Appellant's crimes]. She takes medicine every day for the herpes, something she's going to live with the rest of her life. The medicine alone is over $600.00 a month. I had to fight the insurance company to pay. Later, we will have to pay.”

Following those remarks, the judge imposed the agreed upon sentences, to be served consecutively for a total of twenty years. Then, he added the following:

Court costs [are] assessed in the amount of $175.00. You've got 233 days you've got to pay back to the Hickman County Jail. That's a total of $5,126.00 that you owe to the Hickman County Jail. You are also going to pay all [the victim's] medical expenses for herpes at $600.00 a month for forty years. I just calculated that up, that's $288,000.00.

Then, after warning Appellant that his failure to pay the restitution following his eventual release from prison could result in additional imprisonment for contempt, the judge embellished upon the sentence by saying to Appellant:

It's not within my power to have you shot or hung. If it was, that's most likely exactly what I'd do. And I will make you at least suffer something out of pocket that she's got, and her suffering goes far past whatever the medicine may cost.

The restitution award, court costs, and the jail fee were then written into the judgment form and the matter was concluded.² Appellant did not present in the trial court any of the objections that he now raises in this appeal. We, therefore, look first at the Commonwealth's claim that the matters are not subject to appellate review.

II. PRESERVATION OF ISSUES FOR APPELLATE REVIEW

Appellant acknowledges that he did not preserve the issues with a contemporaneous objection, but argues that because the imposition of restitution, fines and court costs is a “sentencing issue,” his failure to object does not result in a waiver.³See Cummings v. Commonwealth, 226 S.W.3d 62, 66 (Ky.2007) (holding that because “sentencing is jurisdictional,” “sentencing issues” may be raised for the first time on appeal.). In the alternative, he requests palpable error review under RCr 10.26. The Commonwealth responds that the issues Appellant raises are not “sentencing issues,” and that because he failed to object in the trial court, his only avenue for appellate review is by way of palpable error. The Commonwealth further contends that, even if we review the order for palpable error, the trial court's ruling is correct.

While the phrase, “sentencing is jurisdictional” has been applied in published and unpublished opinions of this Court and the Court of Appeals more than 25 times since it first appeared in Wellman v. Commonwealth, 694 S.W.2d 696 (Ky.1985), its meaning remains somewhat obscure. We begin, therefore, with an explanation of that term. We follow with a consideration of whether the matters that Appellant now raises are true “sentencing issues” which qualify for appellate review without preservation, or whether they are simply procedural errors subject to palpable error review under RCr 10.26.

Shannon v. Commonwealth, 562 S.W.2d 301 (Ky.1978) held that although the imposition of consecutive life sentences violated KRS 532.080(6)(a), a defendant's failure to preserve the issue with an objection in the trial court barred appellate review of the issue. In 1985, Wellman, 694 S.W.2d at 698, overruled Shannon, stating without further elaboration that “despite the fact that the trial counsel failed to object at the time of the judgment's entry, since sentencing is jurisdictional it cannot be waived by failure to object.” (emphasis added). Despite comments in some appellate opinions to the contrary, in the context in which it originated, the phrase “sentencing is jurisdictional” is not a reference to the trial court's jurisdiction or the lack thereof. Rather, it is a reference to the appellate court's inherent jurisdiction to correct an illegal sentence. As we noted in Myers v. Commonwealth,⁴ “It is simply incorrect to say that a court is without jurisdiction to impose an unauthorized sentence. Rather, the imposition of an unauthorized sentence is an error correctable by appeal, by writ, or by motion pursuant to RCr 11.42 or CR 60.02.”

In Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky.2010), ⁵ we reviewed our earlier cases and concluded that a “sentencing issue” constitutes “a claim that a sentencing decision is contrary to statute, as in Ware [ ⁶], or was made without fully considering what sentencing options were allowed by statute, as in Hughes.[ ⁷]” We further clarified the point in Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky.2010), by holding that this Court has “inherent jurisdiction to cure such sentencing errors.” ⁸ We therefore regard the phrase, “sentencing is jurisdictional,” simply as a manifestation of the non-controversial precept that an appellate court is not bound to affirm an illegal sentence just because the issue of the illegality was not presented to the trial court.

Since Wellman in 1985, a substantial body of Kentucky law has developed following the principle that appellate review of a sentencing issue is not waived by the failure to object at the trial court level. RCr 10.26 provides a standard of review for alleged errors “not sufficiently raised or preserved for [appellate] review.” However, where we have held that certain issues are preserved for appellate review despite there having been no objection in the trial court, it is difficult to conceive a level of inaction that could be regarded as “not sufficiently raised or preserved.” When nothing is required to preserve the issue for appellate review, palpable error review is superfluous. Thus, the palpable error standard of review under RCr 10.26 is not applicable to appellate review of a true “sentencing issue.”

III. IMPOSITION OF RESTITUTION

A. Standards of Review

Appellant makes two complaints about the imposition of restitution ⁹ in the final judgment. First, he argues that the manner by which the trial court fixed and imposed restitution denied him even the minimal indicia of due process to which he was entitled under Fields v. Commonwealth, 123 S.W.3d 914 (Ky.App.2003). He...