McGill v. Commonwealth
| Decision Date | 02 November 2012 |
| Docket Number | NO. 2011-CA-001037-MR,2011-CA-001037-MR |
| Parties | ROBERT MCGILL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT
Following their arrest in a Henderson, Kentucky, motel room on December 16, 2009, McGill and his co-defendant, Felicia Dawn Kelly, were indicted by the Henderson County grand jury. Both were charged with manufacturing and/or complicity to manufacture methamphetamine. McGill was also charged with tampering with physical evidence, possession of drug paraphernalia, and for being a first-degree persistent felony offender. By order entered February 28, 2010, the circuit court found that McGill was indigent, appointed a public defender to represent him, but also assessed a $250.00 recoupment fee against him. McGill moved to suppress the items seized by the Henderson County police officers during their warrantless search of the motel room as well as statements he made to police. Following a hearing, the circuit court denied the motion to suppress in an order entered April 15, 2010.
Shortly thereafter, McGill opted to accept the Commonwealth's offer and enter into an unconditional guilty plea. In exchange for pleading guilty to manufacturing methamphetamine, tampering with physical evidence, and possession of drug paraphernalia, the Commonwealth agreed to dismiss the PFO I charge as well as the complicity allegation. Had McGill been convicted by a jury, he would have faced an enhanced penalty range of up to life imprisonment. Instead, the Commonwealth recommended a fifteen-year sentence on themanufacturing methamphetamine charge, a five-year sentence on the tampering charge, and a 12-month sentence on the possession charge, all to be served concurrently for a total of fifteen years. The Commonwealth's offer also included the following statement: "Payment of court costs is an express condition of this plea offer." The record reflects that both McGill and his attorney signed the offer as well as the accompanying motion to enter a guilty plea. At the sentencing hearing, the court ensured that McGill understood the terms of the plea agreement, including the payment of $155.00 in court costs. The court accepted McGill's plea, adjudged him guilty of the three charges, and sentenced him in accordance with the Commonwealth's recommendation. The judgment specifically stated that the courts costs were due and payable on or before February 14, 2011. The due date was later extended to February 15, 2012.
In early 2011, McGill moved the court to convert the costs imposed on him to a definite term of imprisonment to run concurrently with his fifteen-year sentence. The court denied McGill's motion on March 11, 2011, noting that "court costs were a negotiated part of the plea agreement between the defendant and the Commonwealth." McGill did not appeal this order.
On May 10, 2011, McGill moved for post-conviction relief pursuant to RCr 11.42 and RCr 10.26, to proceed in forma pauperis, and for appointment of counsel in the accompanying financial statement form. In his motion for relief, McGill contended that the circuit court impermissibly ordered him to pay court costs due to his status as an indigent person, citing Kentucky Revised Statutes(KRS) 31.110(1)(b), KRS 23A.205(2), and KRS 534.030(4). He further argued that his appointed counsel was ineffective in that she failed to object to the provision of the judgment ordering him to pay court costs.
The circuit court granted McGill's motion to proceed as a pauper, but it ultimately denied his motion for post-conviction relief because the payment of costs was agreed to as a part of a voluntary plea agreement. In so holding, the court distinguished the Supreme Court's holding in Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994), that the imposition of a fine on an indigent defendant was inappropriate. Instead, the court relied on the holdings in O'Neil v. Commonwealth, 114 S.W.3d 860 (Ky. App. 2003), Myers v. Commonwealth, 42 S.W.3d 594 (Ky. 2001),1 and Taylor v. Commonwealth, 2010 WL 323180 (2008-CA-001585-MR) (Ky. App. 2010), to support its decision to impose the fine, despite McGill's status as a pauper. The circuit court concluded:
The circuit court subsequently permitted McGill to proceed in forma pauperis in his appeal from this ruling. We shall now consider McGill's appeal.
In his pro se brief, McGill presents three arguments: 1) whether the circuit court erred in denying his motion for relief; 2) whether the circuit court erred in not finding that his counsel was ineffective; and 3) whether the circuit court erred in failing to appoint counsel.
For his first argument, McGill contends that the circuit court erred when it refused to vacate the portion of his sentence requiring him to pay $155.00 in court costs as a result of his plea agreement.
Generally, individuals who have been found to be indigent are not required to pay court costs in this Commonwealth. KRS 31.110 provides for the needs of indigent individuals who are involved in criminal cases, including representation by an attorney and the waiver of costs. KRS 23A.205(2) also addresses the payment of court costs in criminal cases and specifically excludes a "poor person" from having to pay such costs.
The imposition of court costs in McGill's case arose as a part of his plea agreement with the Commonwealth. In McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010), the Supreme Court recently held that while plea agreements are generally considered to be contracts between the defendant and the Commonwealth, the agreement in that case was rendered unenforceable because it contained a "hammer clause" which violated KRS 532.110(1)(c) and KRS 532.080(6)(b). McClanahan initiated a direct appeal in order to dispute the imposition of his sentence. McGill, on the other hand, did not directly appeal thejudgment but rather sought post-conviction relief pursuant to RCr 11.42 and RCr 10.26.
Furthermore, while this pronouncement in McClanahan appears to support McGill's argument, we also recognize that the Supreme Court more recently addressed the issue of the payment of court costs by an indigent defendant in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). In Maynes, the Supreme Court held that despite the finding by the trial court that Maynes was indigent, it upheld the imposition of costs payable six months after his release, recognizing that "the KRS 23A.205 directive to consider not only the defendant's present ability to pay court costs but also his ability 'in the foreseeable future' cannot be overlooked." Id. at 929. Noting that the trial court determined that Maynes would be able to earn enough money to pay the costs within six months of his release from prison, the Supreme Court held that the imposition of costs was not clearly erroneous and upheld that portion of the sentence. But we recognize that the underlying facts of Maynes are somewhat different from the facts in this case because McGill would most likely have been continuing to serve his sentence when his court costs were due.
Despite the evolution of case law in this area, we must agree with the Commonwealth that this argument is not properly before the Court because this issue could and should have been raised in a direct appeal. In Commonwealth v. Reed, 374 S.W.3d 298, 300 (Ky. 2012), the Supreme Court discussed a defendant's ability to directly appeal from an unconditional guilty plea:
We begin by noting that "[w]hile an unconditional guilty plea waives the right to appeal many constitutional protections as well as the right to appeal a finding of guilt on the sufficiency of the evidence, there are some remaining issues that can be raised in an appeal," including "sentencing issues." Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008) (internal citations omitted). "Sentencing issues" include "a claim that a sentencing decision is contrary to statute ... or was made without fully considering what sentencing options were allowed by statute...." Grigsby v. Commonwealth, 302 S.W.3d 52, 54 (Ky. 2010).
As stated in Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2004), an RCr 11.42 motion "is limited to the issues that were not and could not be raised on direct appeal." Although McGill did enter into an unconditional guilty plea, he still retained the right to appeal the sentencing issue related to the imposition of the $155.00 fine. Because he failed to seek review on direct appeal, we are precluded from granting relief in an RCr 11.42 proceeding.
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