BOBBY JACK LEWIS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 1, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000996-MR
BOBBY JACK LEWIS
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NOS. 05-CR-00173 & 05-CR-00231
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: STUMBO, JUDGE; BUCKINGHAM AND HENRY, SENIOR JUDGES.1
STUMBO, JUDGE: This appeal comes from an order entered March 28, 2006, by the
Henderson Circuit Court. This order required Bobby Jack Lewis (Lewis) to reimburse
the county for expenses incurred by his incarceration in the county jail as is authorized by
KRS 441.265. A prisoner may be exempt from said payment if good cause can be
shown. KRS 441.265(1). Lewis, who brings this appeal pro se, presents the following
arguments: that this statute is unconstitutional as it constitutes a Bill of Attainder; it is
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Senior Judges David C. Buckingham and Michael L. Henry, sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
being unconstitutionally applied to him because it forces prisoners who have not been
convicted to pay for their incarceration expenses; that it unconstitutionally singles out
indigent individuals for harsher treatment; and that the trial judge abused his discretion in
ordering Lewis to pay the expenses. After reviewing the arguments set forth by Lewis
and the Commonwealth, we affirm the Henderson Circuit Court order.
Lewis was incarcerated due to two cases from Henderson County. In case
05-CR-00173, Lewis pled guilty to twenty-three counts of second-degree possession of a
forged document. He was sentenced to serve five years imprisonment on each count,
with terms to be served concurrently, for a total of five years. In case 05-CR-00231,
Lewis pled guilty to one count of possession of a forged instrument, one count of theft by
deception over three-hundred dollars, and three counts of theft by deception under threehundred dollars. Lewis was sentenced to a total term of five years imprisonment for
these crimes. Lewis was ordered to serve the sentences for each case concurrently, for a
total of five years imprisonment.
Before we begin our analysis of the issues in this case, we must deal with a
preliminary matter raised by Lewis’s reply brief. Therein, Lewis argues that the
Commonwealth filed its brief in an untimely manner. Lewis filed his brief September 13,
2006, and argues that the Commonwealth’s brief was due 60 days after that date. Lewis
requests judgment in his favor according to Kentucky Rule of Procedure 76.12(8)(c)(iii).
Civil Rule 76.12(2)(b)(ii) sets forth the time requirement for filing a brief. This rule
states:
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If counsel for the appellant is someone other than the Public
Advocate of the Commonwealth or the Attorney General of
the Commonwealth, or designee, the appellee's brief shall be
filed within 60 days after the date on which [Lewis’s] brief
was filed or within 60 days after the date on which the record
on appeal was received by the clerk of the appellate court,
whichever is the later.
Since Lewis is representing himself pro se, the Commonwealth could have filed its brief
either 60 days after Lewis’s brief is filed or 60 days after the record was received by the
clerk of the Court of Appeals, whichever is later. The record in this case was filed with
the clerk of this Court on October 11, 2006. The Commonwealth's brief was filed on
December 4, 2006, well within the sixty-day window if counted from the date the record
was filed. Thus, the Commonwealth’s brief was filed within the 60-day time limit set
forth by rule 76.12.
The first three arguments set forth by Lewis can be easily dismissed by this
Court as none were presented to the circuit court. The Appellate courts of the
Commonwealth have repeatedly declared that “[w]hen a trial court has not had the
opportunity to rule, the appellate court is unable to review the alleged error.” Sherley v.
Commonwealth, 889 S.W.2d 794, 799 (Ky. 1994); see also Shelton v. Commonwealth,
992 S.W.2d 849 (Ky. App. 1998); West v. Commonwealth, 780 S.W.2d 600 (Ky. 1989).
The only issue ripe for review is Lewis’s final argument that the judge
abused his discretion by ordering the payment. “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by
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sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The relevant part of the trial court’s order directing the payment states as follows:
Under KRS 441.265, the sentencing court shall require a
prisoner in the county jail to reimburse the county for the
expenses incurred by his incarceration, “except for good
cause.” The Court has reviewed the record and believes that
good cause has not been shown. Mr. Lewis is eligible for
parole in May 2006. Therefore, the Court hereby ORDERS
that the defendant reimburse the Henderson County Detention
Center for his incarceration by June 5, 2006. If he does not
pay by this date, he must appear in court to show cause why
he cannot pay. If he does not appear, the Court will issue a
warrant for his arrest.
Lewis apparently took umbrage with the last line stating that a warrant would be issued
for his arrest. Lewis took it to mean that if he did not pay, then he would be arrested.
This is not what the order says. The order says if he did not pay then he would have to
appear before the court to show cause why he could not pay. Only if he did not appear in
court to show cause would there be a warrant issued.
The order does, however, state that no good cause was shown as to why
Lewis was unable to reimburse the detention center. An oral motion was made during
Lewis’s trial proceeding requesting that Lewis not be ordered to pay the county jail fees
due to his poverty. The Court indicated that it would take this motion under
consideration, but did not address the issue in the final judgment. After Lewis was
incarcerated, the detention center began removing money from his jail canteen account in
order to help pay the costs of his incarceration. The county jail authorities apparently
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advised Lewis that an order was necessary to stop the deductions. Lewis moved for an
order specifically addressing the issue. The Court then entered the order quoted infra.
In order to review the order of a lower court for an abuse of that court’s
discretion, there must be sufficient findings to permit that review. CR 52.01 addresses
when a court is required to make findings of fact. It provides as follows:
In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specifically and
state separately its conclusions of law thereon and render an
appropriate judgment; and in granting or refusing temporary
injunctions the court shall similarly set forth the findings of
fact and conclusions of law which constitute the grounds of
its action. Requests for findings are not necessary for
purposes of review except as provided in Rule 52.04.
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. The
findings of a commissioner, to the extent that the court adopts
them, shall be considered as the findings of the court. If an
opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact and conclusions of law appear
therein. Findings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or
any other motion except as provided in Rule 41.02. (emphasis
added)
The motion submitted by Lewis which led to the order appealed from falls into the “other
motion” category and not one which requires a finding of fact. CR 52.04 also has some
bearing on our decision. That rule states:
A final judgment shall not be reversed or remanded because
of the failure of the trial court to make a finding of fact on an
issue essential to the judgment unless such failure is brought
to the attention of the trial court by a written request for a
finding on that issue or by a motion pursuant to Rule 52.02.
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In order to provide this Court with the findings necessary to permit a review for abuse of
discretion, Lewis should have requested findings of fact from the trial court as required
by CR 52.04 before bringing this appeal.
As the order stands, we cannot find an abuse of discretion that would
necessitate our reversing it. We, therefore, hold that Lewis’s first three arguments are
improperly before this Court as they were not first raised at the trial court and that there
was no abuse of discretion in ordering Lewis to reimburse the Henderson County
detention center. Accordingly, the order of the Henderson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby Jack Lewis, pro se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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