RENDERED: MAY 7, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0724-MR

CHARLES R. CAVINS APPELLANT

APPEAL FROM WHITLEY CIRCUIT COURT

v. HONORABLE PAUL K. WINCHESTER, JUDGE

ACTION NO. 16-CR-00012

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING IN PART, 

REVERSING IN PART, 

VACATING IN PART,

AND REMANDING

**   **  **

BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.

MAZE, JUDGE: Charles Cavins appeals from a post-judgment order of the 

Whitley Circuit Court denying his motion to waive costs and attorney fees imposed 

as part of his judgment of conviction. He argues that the trial court erred by 

imposing the fees without determining his ability to pay. For the reasons that 
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follow, we conclude that Cavins raised the issue timely and was entitled to a 

hearing to determine whether he has or will have the ability to pay costs. We 

further conclude that the trial court clearly erred by requiring Cavins to pay a 

portion of his attorney fees. Hence, we affirm in part, reverse in part, vacate in 

part, and remand for additional proceedings.

On January 19, 2016, a Whitley County grand jury indicted Cavins on 

two counts of first-degree trafficking in a controlled substance (methamphetamine 

and heroin, respectively), two counts of theft of identity, and one count of being a 

first-degree persistent felony offender (PFO I). At his arraignment, the court found

Cavins indigent and appointed counsel from the Department of Public Advocacy. 

Thereafter, on September 19, 2017, Cavins entered a guilty plea to one count each 

of first degree trafficking in a controlled substance and theft of identity.

On September 29, 2017, the trial court entered a final judgment on the 

plea of guilty, fixing his sentence at a total of five years’ imprisonment. The court 

also ordered Cavins to pay court costs of $130, a fee of $10 to the Kentucky State 

Police for Internet Crimes against Children Task Force, attorney fees of $450, and 

$36 in restitution to the Kentucky State Police Lab.1 The court also added a 5% 

service fee to each payment. The trial court directed Cavins to pay $50 per month 

on these fees and costs until paid.

 

1 Cavins does not challenge the imposition of restitution on appeal.
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On March 27, 2019, Cavins filed a motion to dispense with the costs 

and fees pursuant to KRS2 453.190, KRS 31.110, and KRS 534.030. He argued 

that the fees and costs were not appropriate because he was indigent. On April 22, 

2019, the trial court denied the motion. This appeal followed.

Cavins argues that the trial court was not authorized to impose any 

fees or costs on him because he had previously been found to be indigent for 

purposes of KRS 31.120(1). However, court costs are not governed by KRS 

31.120. Rather, court costs are mandatory “unless the court finds that the 

defendant is a poor person as defined by KRS 453.190(2) and that he or she is 

unable to pay court costs and will be unable to pay the court costs in the 

foreseeable future.” KRS 23A.205(2). KRS 453.190(2), in turn, defines a “poor 

person” as one “unable to pay the costs and fees of the proceeding in which he is 

involved without depriving himself or his dependents of the necessities of life, 

including food, shelter, or clothing.” 

The assessment of court costs in a judgment fixing sentencing is 

illegal only if it orders a person adjudged to be poor to pay costs. Spicer v. 

Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014). And unlike an indigency 

determination for public defender appointment, poor person status and the 

imposition of court costs require consideration of the defendant’s present ability to 

 

2 Kentucky Revised Statutes.
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pay and his or her ability to pay in the foreseeable future. Elliott v. 

Commonwealth, 553 S.W.3d 207, 211 (Ky. 2018) (citing Maynes v. 

Commonwealth, 361 S.W.3d 922, 929 (Ky. 2012)). Furthermore, the trial court is 

not obligated to make a determination of the defendant’s status as a poor person 

unless a request is made. Id.

The Commonwealth cites to Rice v. Commonwealth, No. 2013-CA1812-MR, 2015 WL 5095158 (Ky. App. Aug. 28, 2015), as holding that a 

defendant may waive the right to claim indigency in exchange for an otherwise 

favorable plea agreement. But in Rice, the fine and costs were imposed as part of 

the specific terms of the plea agreement. Id. at *1. Furthermore, the defendant in 

Rice sought to convert his fine and court costs into a definite term of 

imprisonment. This Court concluded that the motion was premature because that 

remedy is only available after the fine has not been paid. Id. (citing KRS 534.060). 

See also Elliott, 553 S.W.3d at 213.

In this case, the plea agreement is silent as to any specific fines or 

costs, including only form language that “COURT COSTS, AND ANY FEES, 

FINES OR RESTITUTION must be paid as assessed by the Court.” 

(Capitalization and emphasis in original.) Unlike in Rice, there was no express or 

implied agreement that Cavins would waive any objection to costs or fees as part 
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of his guilty plea. Therefore, we disagree with the Commonwealth that Cavins is 

precluded from raising the issue now.

The Commonwealth further argues that there is no error because 

Cavins did not request a finding that he was a “poor person” at the sentencing 

hearing. Spicer, 442 S.W.3d at 35. Here, Cavins waived a final sentencing 

hearing, so there was no opportunity to raise the issue until the final judgment was 

entered. Under the circumstances, we conclude that Cavins was entitled to a 

determination of whether he was a “poor person” as defined in KRS 453.190(2), 

whether he is unable to pay court costs now, and whether he will be unable to pay 

court costs in the foreseeable future. Thus, we remand this matter for an 

evidentiary hearing and factual findings on these matters. We express no opinion 

whether Cavins will be entitled to a waiver of court costs following that hearing.

Lastly, with respect to the imposition of attorney fees, KRS 31.211(1) 

provides:

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 

determination shall be made at each stage of the 

proceedings.
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The trial court made the initial determination that Cavins was indigent 

and entitled to appointment of counsel. There is no record of any hearing in which 

the trial court later found good cause to determine Cavins should not continue to be 

considered an indigent person. Without such findings, the trial court’s imposition 

of a $450.00 attorney fee was improper. Spicer, 442 S.W.3d at 35. Therefore, we 

must vacate that fee.

Accordingly, we vacate the sentence imposed by the Whitley Circuit 

Court requiring Cavins to pay attorney fees. We reverse the sentence imposed 

requiring Cavins to pay costs and remand this matter for a hearing and additional 

findings, concerning Cavins’ ability to pay the amount now and in the foreseeable 

future. We affirm the remaining portions of the trial court’s judgment and 

sentence.

TAYLOR, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS AND FILES SEPARATE 

OPINION.

THOMPSON, K., JUDGE, CONCURRING: I concur as I agree that 

it is appropriate to vacate attorney fees and reverse and remand for a hearing 

regarding Cavins’s ability to pay costs. I write separately to address the imposition 

of facially invalid restitution.
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In the final judgment, the trial court ordered Cavins to pay $36 in 

restitution to the Kentucky State Police Lab. No written explanation was given as 

to why this restitution was due. I can only conclude that this amount may have 

related to lab tests conducted to establish that the substances seized from Cavins 

were in fact methamphetamine and heroin. There appears to be no valid basis for 

ordering reimbursement of such lab costs to the Kentucky State Police Lab as 

restitution.

“Restitution” is defined as meaning “any form of compensation paid 

by a convicted person to a victim for counseling, medical expenses, lost wages due 

to injury, or property damage and other expenses suffered by a victim because of a 

criminal act[.]” Kentucky Revised Statutes (KRS) 532.350(1)(a). As explained in 

Fields v. Commonwealth, 123 S.W.3d 914, 918 (Ky.App. 2003), “even where there 

is a guilty plea, the record must establish an adequate factual predicate for a 

restitution order.” 

In Vaughn v. Commonwealth, 371 S.W.3d 784, 786 (Ky.App. 2012), 

the Court reversed restitution orders requiring payment for extradition expenses, 

explaining: “the Commonwealth simply was not a victim who suffered a loss as a 

result of criminal acts committed by the Appellants; consequently, the trial courts 

were without statutory authority to order the Appellants to pay restitution to the 

Kentucky State Treasury for extradition expenses. See KRS 532.350(1)(a).” 
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Cases from our sister courts explain when the government does and 

does not qualify as a victim for purposes of restitution. They contrast the 

government’s entitlement to restitution when it is a victim as a direct result of 

criminal conduct (such as when a suspect causes damage to a police vehicle) from 

the collateral expenses that are normally incurred for regular law enforcement 

activities. See City of Centerville v. Knab, 2019-Ohio-1903, ¶¶ 24-34, 136 N.E.3d 

808, 814-16 (2019); State v. Shears, 920 N.W.2d 527, 539 (Iowa 2018); People v. 

Ford, 2016 IL App (3d) 130650, ¶ 29, 49 N.E.3d 954, 959-60 (2016); State v. 

Storlie, 2002 WI App 163, ¶ 8, 256 Wis. 2d 500, 505, 647 N.W.2d 926, 928

(2002); People v. Barnett, 237 A.D.2d 917, 918, 654 N.Y.S.2d 918, 919 (N.Y. 

App. Div. 1997); State v. Depaoli, 835 P.2d 162, 163-64 (Utah 1992). Under this 

reasoning, lab fees for drug testing are not considered to be appropriate for 

restitution because a state’s lab is not a “victim” of the crime committed. Aguilar 

v. State, 279 S.W.3d 350, 353-54 (Tex. App. 2007). 

While there are states that do permit trial courts to order convicted 

felons to pay lab fees, payment is ordered pursuant to statutes directly authorizing 

such payment as a cost rather than pursuant to their restitution statutes. See, e.g.,

State v. Jones, 216 N.C. App. 519, 528, 718 S.E.2d 415, 422 (2011); Daniels v. 

State, 656 So. 2d 251, 251-52 (Fla. Dist. Ct. App. 1995). We do not have an 

analogous statute.
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The Commonwealth failed to provide any factual basis to establish 

that Kentucky State Police Lab is a victim entitled to restitution and it appears that 

such restitution was wholly unjustified. I caution the Commonwealth and trial 

courts that pursuing and imposing restitution where there is no victim is 

unauthorized by KRS 532.350(1)(a) and if appropriately challenged, warrants 

reversal. However, because Cavins failed to raise this issue, he waived any error. 

Accordingly, I concur.

BRIEF FOR APPELLANT:

J. Ryan Chailland

Assistant Public Advocate

Department of Public Advocacy

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Leilani K.M. Martin

Assistant Attorney General

Frankfort, Kentucky