REED (WILLIAM JOSEPH) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 4, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000266-MR
WILLIAM JOSEPH REED
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 09-CR-001439
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND VACATING IN PART
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE
LAMBERT, JUDGE: William Reed appeals from the Jefferson Circuit Court’s
judgment of conviction and sentence entered on December 21, 2009, imposing a
felony fine in the amount of $1,000.00. Because we believe the trial court had
previously found Reed to be indigent, the imposition of a felony fine was in error,
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statues (KRS)
21.580.
and we therefore vacate the portion of the judgment imposing such. Otherwise, we
affirm the trial court’s judgment.
Reed was charged in the Jefferson Circuit Court in Indictment No. 09CR-001439 with burglary in the second degree, criminal mischief in the first
degree, fleeing or evading police in the second degree (motor vehicle), and fleeing
or evading police in the second degree (pedestrian). Reed, who was found to be
indigent, was represented by an assistant public defender from the Office of the
Louisville Metro Public Defender.
Reed entered into an agreement with the Commonwealth to plead
guilty to the above charges, and the Commonwealth recommended a sentence of
five years’ imprisonment. Part of the agreement stated, “Commonwealth
recommends a fine of $1,000.00.” A hand-written notation on the agreement
stated, “Defense counsel objects to felony fine.” On November 5, 2009, Reed
entered pleas of guilty to each of the above charges, and his plea was accepted, but
sentencing was passed to December 9, 2009.
On that date, the trial court imposed the five-year sentence and a
felony fine in the amount of $1,000.00. Reed’s counsel again objected to the fine,
citing KRS 534.030 and Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994).
Final judgment was entered on December 21, 2009. Reed’s counsel tendered an
order to the trial court to allow him to proceed in forma pauperis on appeal. On
January 5, 2010, the Jefferson Circuit Court entered the in forma pauperis order,
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and in an order entered on April 23, 2010, this Court granted Mr. Reed a belated
appeal.
On appeal, Reed argues that the imposition of the $1,000.00 fine was
in error and that the portion of the judgment ordering the payment of the fine
should be vacated. We agree.
KRS 534.030(1) states: “[A] person who has been convicted of any
felony shall, in addition to any other punishment imposed upon him, be sentenced
to pay a fine in an amount not less than one thousand dollars ($1,000) and not
greater than ten thousand dollars ($10,000) or double his gain from commission of
the offense, whichever is the greater.” However this same statute states, “[f]ines
required by this section shall not be imposed upon any person determined by the
court to be indigent pursuant to KRS Chapter 31.” KRS 534.030(4) (emphasis
added).
In Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky. 1994), our
Supreme Court addressed the same issue presented in Reed’s appeal and
concluded:
Pursuant to [KRS 534.030], the judge must
independently determine the appropriateness of any fine,
and if so, the appropriate amount and method of payment
thereof. In so doing, the judge must also consider
whether the appellant is indigent. In this connection, we
observe that at sentencing in this case, the appellant was
represented by an assistant public advocate. Thus, we
may assume that the trial judge had already determined
that the appellant was indigent. For this reason,
imposition of any fine was inappropriate, and
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accordingly, we vacate such portions of the sentence as
pertain thereto.
Before this Court, the Commonwealth concedes that under KRS 534.030 and
Simpson, Reed’s argument that a fine was incorrectly included in his judgment is
correct. However, the Commonwealth argues that under O’Neil v. Commonwealth,
114 S.W.3d 860 (Ky. App. 2003), Reed is not entitled to the relief he is requesting,
specifically that this Court vacate the portion of the judgment imposing the
$1,000.00 fine. Instead, the Commonwealth contends that under O’Neil, Reed is
not entitled to pick and choose which terms of a plea agreement he desires to have
enforced.2 The Commonwealth also argues that the Kentucky Supreme Court’s
decision in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), supports
its arguments.
In McClanahan, the defendant accepted a plea agreement with a
recommended sentence of ten years’ imprisonment. Id. at 696. Because the
defendant wanted to be released from jail to tend to family matters but was unable
to post the required bail, the Commonwealth agreed that the defendant could be
released on his own recognizance, provided that he agreed to what the trial court
and the parties in the case referred to as a “hammer clause,” whereby if he failed to
fully cooperate with the authorities throughout sentencing he agreed to serve a
2
Although the Commonwealth does not make such an argument, we note that in Taylor v.
Commonwealth, 2010 WL 323180 (Ky. App. 2010) (2008-CA-001585-MR), this Court held that
a defendant who knowingly pleaded guilty to a felony fine was not permitted to then argue that
the felony fine violated KRS 534.030. In that case, unlike here, the defendant did not object to
the felony fine prior to accepting the terms of the plea agreement, as Reed did in the instant case.
Therefore, the facts in this case are distinguishable from Taylor.
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forty-year sentence and to forfeit his right to seek probation or shock probation.
Id. The defendant failed to appear for sentencing, and the trial judge determined
that the potential charges reflected in the guilty plea judgments added up to only
thirty-five years. The trial judge then sentenced him to thirty-five years
imprisonment accordingly.
Finding that the thirty-five year sentence exceeded the lawful range of
punishment established by the General Assembly for the defendant’s crimes, the
Supreme Court held that the trial court’s imposition of such a sentence violated the
separation of powers doctrine embodied in Sections 27 and 28 of the Kentucky
Constitution and amounted to an abuse of discretion. Id. at 698. Based on its
finding that the plea agreement was a contract between the defendant and the
Commonwealth, and that an agreement that runs contrary to the law will not be
enforced, the Supreme Court found that the plea agreement between the
Commonwealth and the defendant could not be enforced. Accordingly, the Court
reversed the matter and remanded it to the trial court for further proceedings
permitting the defendant to withdraw his guilty plea. Id. at 701-02.
In the instant case, the Commonwealth argues that the Court may not vacate
the portion of the judgment imposing a fine, but instead, as the Court did in
McClanahan, must reverse the judgment and remand for further proceedings in the
trial court. We disagree with the Commonwealth’s arguments and find the
Kentucky Supreme Court’s holding in Simpson to still be controlling and sound
precedent. The facts in the instant case are directly analogous to Simpson, in
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which the Court simply vacated the portion of the judgment requiring the indigent
defendant to pay a felony fine. Furthermore, McClanahan did not in any way
overrule Simpson, which is indicative of the Supreme Court’s decision not to
overturn plea agreements improperly imposing felony fines.
For the foregoing reasons, the portion of the December 21, 2009, judgment
requiring Reed to pay a felony fine of $1,000.00 is hereby vacated. The judgment
is otherwise affirmed.
ISAAC, SENIOR JUDGE, CONCURS.
MOORE, JUDGE, DISSENTS BY SEPARATE OPINION.
MOORE, JUDGE, DISSSENTING: Respectfully, I must dissent from the
majority’s opinion. First, I am not certain that Reed’s argument is properly
preserved. His guilty plea was not conditionally entered, and there is no mention
in his brief that he filed a motion to withdraw his guilty plea. Nonetheless, even
assuming that the issue is properly preserved, I do not join in the majority’s
application of Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994), to the facts
of this case.
I do agree with the majority, however, that McClanahan v. Commonwealth,
308 S.W.3d 694 (Ky. 2010), can be read to apply to the case at bar, and even the
Commonwealth appears to concede this. At the time the trial court entered the
judgment of sentence in this case, it did not have the benefit of McClanahan.
As noted in McClanahan, “plea agreements in criminal cases are contracts
between the accused and the Commonwealth, and are interpreted according to
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ordinary contract principles.” 308 S.W.3d at 701 (citations omitted). Courts
cannot enforce agreements that are contrary to the law. Id. (citations omitted).
McClanahan dealt with a plea agreement that included a “hammer clause” making
the sentence agreed to in the plea agreement longer than that called for by the law.
The Court in McClanahan held that the trial court should have rejected the plea
agreement because it contravened the law and was accordingly legally invalid and
unenforceable.
Likewise, in Reed’s case, the trial court should have rejected the plea
agreement, as there was not a legally enforceable bargain between the parties. In
McClanahan, the Kentucky Supreme Court reversed and remanded the case to the
trial court, ruling that the trial court erred when it did not allow the appellant to
withdraw his guilty plea because it was based on an invalid and unenforceable
contract with the Commonwealth.
I agree with the majority that McClanahan did not overrule Simpson, but,
unlike the majority, I do not think that Simpson applies to this case. Simpson did
not involve a plea agreement. But, instead, the fine in that case was imposed after
a jury trial. Rather than entering into a bargain with the Commonwealth, Simpson
went to trial. Thus, the issue in Simpson was not a plea agreement, i.e., a contract
with the Commonwealth, as was the case in McClanahan. Consequently, Simpson
is distinguishable and does not apply to the case at bar because the fine in Simpson
was imposed by the court following a jury trial.
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In Reed’s case, he did not have to stand before a jury to be tried.
Rather, he voluntarily chose to waive his right to a jury trial, voluntarily agreed to
enter into the plea agreement--against the advice of counsel-- and received a lesser
prison sentence than he may have received if he exercised his right to a jury trial.
To allow Reed to benefit from a plea agreement that the trial court should have
rejected, in my view, actually goes against the holding in McClanahan.
Presumably, in lieu of the agreed upon fine, the Commonwealth may have offered
a higher sentence. Nonetheless, the plea agreement, pursuant to McClanahan, is
unenforceable and should have been rejected by the trial court; hence there really is
not an enforceable agreement between Reed and the Commonwealth.
Accordingly, I believe that McClanahan compels that we reverse and remand this
matter to the trial court, rather than allowing Reed to benefit from a plea bargain
that is contrary to law and one which the Commonwealth likely would not have
offered had McClanahan been the law at the time the agreement was made.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Chief Appellate Defender
Office of Louisville Metro
Public Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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