MCENTIRE (ROCKY CHAD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 5, 2010; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: NOVEMBER 19, 2010; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000916-MR
ROCKY CHAD MCENTIRE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 07-CR-002733
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: KELLER, MOORE, AND STUMBO, JUDGES.
KELLER, JUDGE: Rocky Chad McEntire (McEntire) appeals from a judgment of
the Jefferson Circuit Court following his conditional guilty plea to first-degree rape
and kidnapping. For the reasons set forth below, we affirm in part, reverse in part,
and remand.
FACTS
On August 20, 2007, McEntire was indicted by a Jefferson County
Grand Jury and was charged with first-degree rape and kidnapping. At his
arraignment, McEntire was represented by private counsel and he entered a plea of
not guilty to the charges. On September 20, 2007, McEntire’s private counsel filed
a motion to withdraw as counsel and for the Jefferson Circuit Court to appoint a
public defender. As grounds for the motion, counsel stated that McEntire did not
have sufficient resources to defend against the charges as “the defense may
reasonably be anticipated to require ancillary services such as an investigator and
experts in various professions.” The trial court granted the motion and appointed a
Louisville Metro Public Defender to represent McEntire.
On December 5, 2007, McEntire filed a motion to suppress statements
he made to Louisville Metro Police Detectives, arguing that his statements were
not made voluntarily or knowingly. A suppression hearing was held on January
30, 2008, and on March 11, 2008, the trial court entered an order denying
McEntire’s motion. On January 22, 2009, McEntire entered a conditional guilty
plea to kidnapping and to an amended charge reducing first-degree rape from a
Class A felony to a Class B felony. McEntire’s plea bargain reserved the right to
appeal the trial court’s order denying his motion to suppress. On April 15, 2009,
the trial court entered a final judgment of conviction and sentenced McEntire to ten
years’ imprisonment on each conviction with the sentences to run concurrently.
Additionally, the trial court ordered McEntire to pay court costs in the amount of
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$125 and pay a partial recoupment fee of $200 for representation by the Louisville
Metro Public Defenders’ Office. Finally, the judgment noted that McEntire was
required to register as a sex offender under Kentucky Revised Statute(s) (KRS)
17.520 for lifetime. This appeal followed.
ANALYSIS
Initially, we note that pursuant to Kentucky Rule(s) of Criminal
Procedure (RCr) 8.09, McEntire reserved the right to appeal the trial court’s denial
of his motion to suppress. However, in this appeal, McEntire makes no argument
that the denial of that motion was error. Instead, McEntire first argues that the trial
court erred by imposing court costs and a public defender fee against him.
McEntire’s second argument is that his “sentence” of lifetime registration as a sex
offender constitutes cruel and unusual punishment under the Eighth Amendment of
the United States Constitution and Section 17 of the Kentucky Constitution.
As to the court costs and attorney fees, McEntire contends that the
trial court erred in ordering him to pay these costs without first holding a hearing.
In support of his argument, McEntire cites to KRS 31.211(1), which provides the
following:
At 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, the other necessary services and facilities
of representation, and court costs. The court shall order
payment in an amount determined by the court and may
order that the payment be made in a lump sum or by
installment payments to recover money for representation
provided under this chapter. This partial fee
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determination shall be made at each stage of the
proceedings.
The Commonwealth concedes that the trial court failed to hold a “nonadversarial
hearing” or inquire whether McEntire had the ability to pay court costs and a
partial fee for legal representation by a public defender. However, the
Commonwealth does contend that McEntire failed to preserve this issue in writing
when he entered his conditional guilty plea pursuant to RCr 8.09, and thus waived
the right to appeal this issue.
RCr 8.09 states that “a defendant may enter a conditional plea of
guilty, reserving in writing the right, on appeal from the judgment, to review of the
adverse determination of any specified trial or pretrial motion.” In Dickerson v.
Commonwealth, 278 S.W.3d 145, 149 (Ky. 2009), the Supreme Court of Kentucky
set forth certain circumstances in which an issue raised on appeal from a
conditional guilty plea is properly preserved for review. The Court held that it
would consider such issues on appeal only if they:
(1) involve a claim that the indictment did not charge an
offense or the sentence imposed by the trial court was
manifestly infirm, or (2) the issues upon which appellate
review are sought were expressly set forth in the
conditional plea documents or in a colloquy with the trial
court, or (3) if the issues upon which appellate review is
sought were brought to the trial court’s attention before
the entry of the conditional guilty plea even if the issues
are not specifically reiterated in the guilty plea
documents or plea colloquy.
Furthermore, as noted in Windsor v. Commonwealth, 250 S.W.3d 306,
307 (Ky. 2008), a waiver of the right to appeal in a guilty plea does not extinguish
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all appealable issues. Rather, some issues “survive an express waiver of the right
to appeal[.]” Id. These issues include “competency to plead guilty; whether the
plea complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 244, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969); subject matter jurisdiction and failure to
charge a public offense; and sentencing issues.” Id. (citations omitted).
We have found no published cases addressing this factual situation
precisely, and it is unclear whether this issue is of the type listed in Windsor that
survives an express waiver of the right to appeal. However, the unpublished
opinion of the Supreme Court of Kentucky in Craven v. Commonwealth, 2006 WL
1650968 (Ky. 2006)(2004-SC-000793-MR), is instructive. In Craven, the
appellant plead guilty to complicity to murder. The final judgment and sentence
required payment of court costs and attorney fees to the Department of Public
Advocacy. The appellant argued that the trial court was required to hold a hearing
prior to ordering the appellant to pay these costs. Relying on KRS 31.211(1), the
Court noted that the trial court failed to conduct a “nonadversarial hearing” for the
purpose of determining whether the appellant could pay these costs. Thus, the
Court remanded the case to the trial court for further proceedings to determine
whether the appellant had the ability to pay these costs. Id. at *1-*2.
The Court in Craven did not directly address whether the appellant
waived her right to appeal the assessment of court costs and attorney fees by
entering a guilty plea. However, by addressing it, the Court implicitly
acknowledged that the appellant did not waive her right to appeal this issue. In
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light of Craven, we conclude that McEntire did not waive his right to appeal the
issue of whether the trial court failed to hold a “nonadversarial hearing” as required
by KRS 31.211(1).
We do note however that this issue was not properly preserved for our
review. Therefore, any error may be “noticed on appeal only if the error is
‘palpable’ and ‘affects the substantial rights of a party[.]’” Commonwealth v.
Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citations omitted). Because an inquiry as
to McEntire’s ability to pay the public defender and court costs should have been
made, Donovan v. Commonwealth, 60 S.W.3d 581 (Ky. App. 2001), we are
utilizing our discretion, in the interest of justice, to remand this case for further
proceedings. RCr 10.26. On remand, the trial court shall hold a “nonadversarial
hearing” to determine whether McEntire has the ability to pay the assessed costs
and fees as required by KRS 31.211(1).
McEntire next argues that his “sentence” of lifetime registration as a
sex offender constitutes cruel and unusual punishment under the Eighth
Amendment of the United States Constitution and Section 17 of the Kentucky
Constitution. We disagree.
As noted by the Supreme Court of Kentucky in Hyatt v.
Commonwealth, 72 S.W.3d 566, 572 (Ky. 2002), “the designation of sexual
predator is not a sentence or a punishment but simply a status resulting from a
conviction of a sex crime.” The Court further stated that registration does “not
constitute a disability or restraint; . . .” Id. Because registration as a sex offender
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is not “a punishment but simply a status,” we conclude that lifetime registration as
a sex offender does not constitute cruel and unusual punishment.
We note that the Commonwealth contends that McEntire waived his
right to appeal this issue by entering a guilty plea. Because McEntire does not
prevail on his argument that lifetime sex offender registration is cruel and unusual
punishment, the Commonwealth’s argument that McEntire waived this issue is
moot.
CONCLUSION
For the foregoing reason, the judgment of the Jefferson Circuit Court
is affirmed in part, reversed in part, and remanded.
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STUMBO, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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