RENDERED: AUGUST 25, 2016 

TO BE PUBLISHED 

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2015-SC-000377-MR LI 1-1 

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DONALD HOWARD APPELLANT 

ON APPEAL FROM CARROLL CIRCUIT COURT 

V. HONORABLE REBECCA LESLIE KNIGHT, JUDGE 

NO. 15-CR-00005 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION OF THE COURT BY CHIEF JUSTICE MINTON 

AFFIRMING, IN PART, VACATING IN PART, AND REMANDING 

Donald Howard entered an open guilty plea to five counts of first-degree 

trafficking in a controlled substance, second offense. He was sentenced to ten 

years' imprisonment with a $1,000 fine on each count with two counts running 

consecutively for a maximum twenty-year total sentence. 

He now appeals that judgment as a matter of right', contending that the 

trial court's imposition of the statutory maximum sentence was 

unconstitutional and that the court erred by imposing a partial fee to the 

public defender and court costs. We hold that the trial court did not err in 

sentencing Howard, assessing court costs, or imposing a partial fee for the 

public defender. We agree that the trial court erred by imposing the criminal 

1Ky. Const. § 110(2)(b). 
fines, so we vacate the criminal fines imposed in the judgment and remand the 

case to the trial court for entry of a conforming judgment. 

I. FACTUAL AND PROCEDURAL BACKGROUND. 

In addition to Howard, the prosecution involved his two sons, Thomas 

Howard and Travis Howard, and a fourth person, Lloyd Lee. The four men, in 

various levels of involvement for each transaction, sold prescription pain pills 

to a confidential informant, Larry Fry. Fry, then on probation himself for 

trafficking in a controlled substance, was the only confidential informant used 

in this case. 

On the first transaction, Howard and Thomas sold two pills to Fry. A 

similar transaction occurred two days later. Then, Howard sold four more pills 

to Fry. And a similar transaction occurred again several days later. One month 

later, Howard set aside six pills for Travis to sell, which he did. A short time 

later, all four were arrested and charged with trafficking in a controlled 

substance. 

Howard entered an open, unconditional guilty plea to all five counts of 

the trafficking charges. When Howard entered his plea, the trial court warned 

him that he could be sentenced to a maximum of twenty years and, without a 

guilty-plea agreement with the Commonwealth, the court could impose up to 

the maximum sentence. 

In determining Howard's sentence, the trial court considered the nature 

of his current charges and his criminal history and considered him a danger to 

the community and his family members by involving his sons in the drug trade. 

2 
The trial court imposed the maximum twenty years' imprisonment. Howard 

considers it noteworthy that he received a harsher sentence that all of his codefendants. 2 

The trial court also imposed a series of fees and a fine: $600 public 

defender partial fee, a $1,000 fine, and court costs. Howard's counsel moved 

the trial court to waive these expenses, but the trial court denied his motion. 

Howard was ordered to make monthly payments of $100 beginning 90 days 

after his release; the court informed him that if he failed to make timely 

payments he would be returned to jail. 

Howard now appeals to this Court, contending that his sentence was 

unconstitutional and that the imposition of the fine and fees by the trial court 

was erroneous. 

II. ANALYSIS. 

A. The Trial Court did not Abuse Its Discretion by Imposing the 

Statutory Maximum Sentence. 

Howard's first claim of error is that the trial court abused its discretion 

in imposing the maximum sentence of twenty years for his trafficking offenses. 

He alternatively invokes two constitutional provisions in support of his theory. 

First, he argues that his rights under the Double Jeopardy Clause of the Fifth 

2Thomas Howard was offered five years on two Class C trafficking counts and a 

$1,000 fine, five years on one Class D possession of a controlled substance charge, 

and twelve months and a $500 fine for possession of drug paraphernalia—all charges 

would run concurrently for one five year sentence. Travis Howard was offered five 

years on one trafficking charge. Lloyd Lee was offered five years on each trafficking 

charge to run concurrently for a five year total sentence, in addition to a $1,000 fine. 

The record reflects that the prosecutor distinguished the co-defendants from Howard 

because the pills sold were originally prescribed to Howard. 

3 
Amendment3were violated because the repeated sales of oxycodone over the 

course of a short period of time is a continuing course of conduct rather than 

six distinct charges. And second, he alleges that imposition of the maximum 

sentence is disproportionate to his offense and consequently is contrary to the 

Eighth Amendment's 4prohibition of "cruel and unusual punishments." 

1. Abuse of discretion. 

Kentucky statutory law affords trial courts immense discretion in setting 

criminal penalties. 5As the Commonwealth correctly acknowledges, trial courts 

retain discretion in decreasing unduly harsh sentences 6 , in granting or denying 

probation7 , and in determining whether a defendant should serve sentences 

concurrently or consecutively. 8In reaching sentencing decisions, Kentucky law 

does require trial courts to consider certain factors. For example, the trial court 

must consider the contents of the written Pre-Sentencing Investigation (PSI) 

Report9 , and it must also consider the effect of a sentence on a defendant's 

potential future criminal behavior. 19But because such decisions are ultimately 

committed to the trial court's sound discretion, we review these rulings for an 

3U.S. Const. amend. V ("...nor shall any person be subject for the same offense 

to be twice put in jeopardy or life or limb..."). 

4U.S. Const. amend VIII ("Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted."). 

5 See generally Kentucky Revised Statutes (KRS) Chapter 532. 

6 KRS 532.070. 

7 KRS 532.040. 

8 KRS 532.110. 

9 KRS 532.050. 

19 KRS 532.007. 

4 
abuse of discretion. So we will not disturb the trial court's sentencing 

determination unless convinced that its decision was "arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles."u 

In support of his claim that the trial court abused its discretion in setting 

his sentence, Howard relies primarily on our holding in Edmonson v. 

Commonwealth. 12 In Edmonson, we held that the defendant was entitled to a 

new sentencing hearing because the trial court had already made up its mind 

on the appropriate punishment before the hearing. The trial court's discretion 

"must be exercised only after the defendant has had a fair opportunity to 

present evidence at a meaningful hearing in favor of having the sentences run 

concurrently or present other matters in mitigation of punishment." 13We 

cautioned trial judges that "the statutes and rule are not mere procedural 

formalities, but are substantive and may not be ignored." 14 

Howard contends that the trial court in his case similarly had no 

intention of considering any factors in mitigation of punishment. 

Unfortunately, he offers no proof that the trial court failed to consider his 

mitigating circumstances. But in support of his theory, Howard points to 

several pieces of evidence he offered at trial that he believes warranted a lighter 

sentence. This includes his rationalization that he was not dealing hard drugs 

and only sold the pills to assist a friend (Fry) who was supposedly in pain. He 

11 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1995). 

12725 S.W.2d 595 (Ky. 1987). 

13 Id. at 596. 

14 Id. 

5 
offered to assist the Commonwealth as a confidential informant—a route taken 

by Fry to avoid harsher punishment. And Howard suggests that his medical 

condition at the time of sentencing should have influenced the trial court to 

impose a lesser sentence. He claims he had a serious back condition, heart 

trouble, spinal stenosis, and he was completely disabled. Howard concludes 

that the only way the trial court could have sentenced him to the statutory 

maximum under these circumstances is if the trial court failed truly to 

consider mitigation at all. 

But, as the Commonwealth rightly notes, Howard knowingly, 

intelligently, and willingly entered into an open guilty plea expressly 

acknowledging this sentence was a possible outcome. The trial court thrice 

engaged in a colloquy with Howard about the implications of his open plea, and 

each time Howard acknowledged he wanted to proceed under these 

circumstances. 

The record indicates that the trial court observed the proper sentencing 

procedures. The trial court acknowledged receipt and review of the PSI report 

and both parties' sentencing memoranda and contemplated other factors, 

including Howard's prior criminal history. There is simply no indication that 

the trial court summarily dismissed Howard's position before first considering 

it. 

As for the trial court's motivations for imposing a harsher sentence, the 

trial court relied on a variety of factors. First, the court noted its disfavor with 

Howard's use of his sons in a drug trafficking enterprise. This factor is 

6 
certainly not dispositive because Howard's sons were adults with their own 

criminal backgrounds, but we do not fault the trial court for using this fact as 

one aspect of her criterion. In making its sentencing decision, the trial court 

also pointed to Howard's criminal history for the exact same offense. Howard 

had a previous felony conviction for this exact same charge—first-degree 

trafficking in a controlled substance. 15While he was on parole for that 

conviction, he was indicted again for the same offense and ultimately pled 

guilty to a lesser misdemeanor charge. But Howard's propensity for reoffending after release bolstered the trial court's determination that Howard 

presented a danger to himself and the community and led to the decision to 

impose the statutory-maximum sentence. 

When Howard entered the open guilty plea, he knowingly accepted the 

fact that this sentence was a possibility. There is no indication that the trial 

court failed to follow proper sentencing procedures, and the sentencing 

decision was based on a number of factors, including Howard's recidivism after 

two earlier convictions for the same activity. So we cannot conclude that the 

trial court's sentencing decision was "arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles." The trial court did not abuse its 

discretion in imposing the twenty-year maximum sentence. 

2. Double Jeopardy. 

Howard next claims that his sentence violated the double-jeopardy 

clauses of the Fifth Amendment to the United States Constitution and Section 

15This prior offense is why Howard's trafficking charge was enhanced from a 

Class D felony to the harsher sentences associated with Class C felonies. 

7 
13 of the Kentucky Constitution. 16The text of the Kentucky constitutional 

provision bears remarkable similarity to its Fifth Amendment counterpart, and 

we have previously held that Kentucky's double jeopardy provision 

encompasses identical protections. 17And double jeopardy issues may be raised 

on appeal regardless of whether Howard properly preserved the issue below. 18 

Howard claims the Double Jeopardy Clause was violated through the 

Commonwealth's choice to characterize his criminal activity as a series of 

individual violations rather than one continuous course of criminal conduct. 

And to be sure, under KRS 505.020, a defendant may not be convicted of 

multiple offenses when "the offense is designed to prohibit a continuing course 

of conduct and the defendant's course of conduct was uninterrupted by legal 

process, unless the law expressly, provides that specific periods of such conduct 

constitute separate offenses." He sold the pills to the same person in similarly 

small quantities over a relatively short period of time. So he suggests that the 

legislature intended, in drafting KRS 218A.1412, to allow aggregation of small 

quantities in a short timespan to constitute one count of trafficking. Or, in 

other words, his position is that instead of being charged with several Class C 

felonies, he should have been charged with one Class D offense. 

16 "No person shall, for the same offense, be twice put in jeopardy of his life or 

limb..." 

17 See Wilson v. Commonwealth, 438 S.W.3d 345, 351 (Ky. 2014). See also Little 

v. Commonwealth, 422 S.W.3d 238, 248 (Ky. 2013) (federal and state double jeopardy 

clauses guarantee the same right). 

18 See Menna v. New York, 423 U.S. 61 (1975); Brooks v. Commonwealth, 217 

S.W.3d 219, 221-22 (Ky. 2007). 

8 
Unfortunately for Howard, we have already addressed this precise issue. 

In Gray v. Commonwealth, we held that multiple counts of trafficking in a 

controlled substance do not violate double jeopardy protections. 19We have 

since staked a firm position on the course-of-conduct doctrine in our method of 

statutory interpretation. In Williams v. Commonwealth, we held that as a basic 

rule of construction, if the text does not refer to a course of conduct and 

instead only refers to singular and specific acts, each offense may be charged 

individually.20Howard asks us to revisit and overrule these decisions without 

offering any meritorious arguments for why they were incorrect. Without a 

compelling reason undermining our opinion in Gray, we see no reason to 

compromise that position today. Because Gray is binding precedent to this 

Court, we accordingly hold that Howard's sentence did not violate the Double 

Jeopardy Clauses of the United States and Kentucky Constitutions. 

3. Cruel and unusual punishment. 

Howard contends that the punishment imposed by the trial court violates 

the prohibition of cruel-and-unusual punishments under the Eighth 

Amendment to the United States Constitution and Section 17 of the Kentucky 

Constitution. 21He asserts that the sentence he received was disproportionate 

to both the severity of the crime he committed and incongruent with 

punishments meted out to his co-defendants. Howard has not preserved this 

19979 S.W.2d 454, 455 (Ky. 1998), overruled on other grounds by Morrow v. 

Commonwealth, 77 S.W.3d 558 (Ky. 2002). 

20178 S.W.3d 491, 495 (Ky. 2005). 

21 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel 

punishment inflicted." 

9 
issue for appeal and urges us to review this issue for palpable error under 

Kentucky Rule of Criminal Procedure (RCr) 10.26. Under that standard, we will 

not grant him relief unless we find that "a manifest injustice has resulted" from 

the trial court's error. 22 

In Riley v. Commonwealth, we established a three-part test for analyzing 

the proportionality of a contested sentence. 23On review, an appellate court 

should consider: (1) the gravity of the offense and harshness of the penalty; (2) 

the sentences imposed on other criminals in the same jurisdiction; and (3) the 

sentences imposed for commission of the same crime in other jurisdictions. 24 

 The United States Supreme Court has also recognized that a trial court may 

punish recidivists more harshly than a first-time offender. 25This essentially 

leaves us to comb through the totality of the circumstances in Howard's case to 

determine whether his sentence was constitutionally disproportionate. And we 

hold that it was not. 

As previously noted, Howard is a repeat offender with respect to 

trafficking controlled substances. And in the present case he was charged with 

multiple counts of the same offense. In fact, he was the only one of his codefendants to be involved in every drug transaction with the confidential 

informant, which likely explains why he received a harsher punishment than 

the other three members of this common criminal scheme. He is not 

22RCr 10.26. 

23 120 S.W.3d 622 (Ky. 2003). 

24 Id. at 633. 

25 See Rummel v. Estelle, 445 U.S. 263, 268 (1980). 

10 
challenging the validity of the sentencing structure for the crimes for which he 

was convicted but instead chooses to assail the trial court's discretion in 

selecting a punishment within the bounds fixed by the legislature. But most 

importantly, Howard knowingly accepted the possibility of this sentence when 

he entered his open guilty plea. All things considered, we cannot conclude that 

the twenty-year sentence, while no doubt harsh, raises constitutional concerns 

of arbitrary and unfair disproportionality. 

B. The trial court did not err by imposing the fees but did err by 

imposing the fine. 

Howard argues that the fees associated with his prosecution were 

improperly assessed against him. At the close of his case, the trial court 

ordered that Howard pay court costs, a partial fee to the public defender of 

$600, and a $1,000 criminal fine. Howard adequately preserved this issue by 

moving the trial court to waive all costs and fines associated with his sentence, 

arguing that he is a "poor person" exempt from such fees by statute. Our 

authority to review criminal sentences is jurisdictional, and we maintain 

inherent authority to cure defective sentencing with respect to fines and court 

costs. 26 

KRS 23A.205 states that court costs may not be waived unless the trial 

court finds that the defendant is a "poor person" under KRS 453.190(2). There, 

a "poor person" is defined as "a person who is unable to pay the costs and fees 

of the proceeding in which he is involved without depriving himself or his 

26 See Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky. 2010). 

11 
dependents of the necessities of life, including food, shelter, or clothing." 27 

 Howard urges this Court to accept his status as a "poor person" for purposes of 

this statute to vacate the costs associated with his sentence. We address each 

fee in turn. 

First, the trial court did not err in imposing court costs. As KRS 23A.205 

unambiguously states, trial courts do not have discretion to waive court costs 

unless they make a factual determination that a defendant meets the statutory 

standard as a "poor person." Howard supports his argument that he was 

adjudged a poor person throughout his trial process because he was deemed 

indigent for purposes of appointing appellate counsel. But in Spicer v. 

Commonwealth, we directly rejected that argument, holding that a "defendant 

who qualifies as 'needy' under KRS 31.110 because he cannot afford the 

services of an attorney is not necessarily 'poor' under KRS 23A.205." 28And 

more importantly, "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. 

If a trial court was not asked at sentencing to determine the defendant's 

poverty status and did not otherwise presume the defendant to be an indigent 

or poor person before imposing court costs, then there is no error to correct on 

appeal."29The record appears to indicate that the trial court had not previously 

27KRS 453.190(2). 

28442 S.W.3d 26, 35 (Ky. 2014). 

29 Id. at 34. 

12 
determined Howard was a "poor person" for KRS 23A purposes, so the trial 

court did not abuse its discretion imposing court costs. 

As for the $600 public-defender partial fee, Howard claims he is not 

subject to this cost because he was only represented by a public defender at 

the time of sentencing, and proceeded in forma pauperis on appeal. But he did 

have periodic private representation during various portions of this 

prosecution. KRS 31.211 provides, in pertinent part, that: 

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. 

The trial court determined that Howard could contribute some amount to his 

representation and found a reasonable basis to believe he would be able to pay 

the fee within the foreseeable future. And we are not convinced the trial court 

abused its discretion in assessing this partial fee. 

Finally, the Commonwealth concedes that the trial court erroneously 

imposed the $1,000 criminal fine. Howard had been previously adjudged an 

"indigent" person for purposes of KRS Chapter 31. KRS 534.030(4) states that 

fines "required by this section shall not be imposed upon any person 

determined by the court to be indigent pursuant to KRS Chapter 31." Because 

proceedings reflected Howard's indigent status, we agree that imposition of the 

$1,000 criminal fine should be vacated. 

13 
III. CONCLUSION. 

For the foregoing reasons, we affirm the trial court's judgment with 

respect to Howard's twenty-year sentence and the imposition of court costs and 

a public-defender partial fee, but we vacate that portion of the judgment that 

imposes the $1000 criminal fine against Howard. We remand the case to the 

trial court for entry of a new judgment consistent with this opinion. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Kathleen Kallaher Schmidt 

Assistant Public Advocate 

Department of Public Advocacy 

COUNSEL FOR APPELLEE: 

Andy Beshear 

Attorney General of Kentucky 

Thomas Allen Van de Rostyne 

Assistant Attorney General 

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