RENDERED: DECEMBER 16, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2022

- CA

- 0212

- MR

ERIC DANIELS APPELLANT

APPEAL FROM HICKMAN CIRCUIT COURT v. HONORABLE TIMOTHY A. LANGFORD , JUDGE ACTION NO. 21

- CR

- 00015

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING
**   **  **
BEFORE: CETRULO, COMBS, AND GOODWINE , JUDGES

. C ETRULO , JUDGE: Appellant Eric Daniels (“Daniels”) appeals the o rder of the
Hickman Circuit Court requiring him to pay jail reimbursement fees pursuant to
KRS 1 441.265.

1 Kentucky Revised Statute.- 2

- FACTUAL AND PROCEDURAL HISTORY In November 2021, Daniels entered an Alford 2 plea of guilty to first

degree rape, third

- degree rape, and second

- degree unlawful transaction with a
minor. Prior to sentencing, Daniels spent 83 days in j ail. At his sentencing in February 2022, the circuit court imposed a sentence of 16 years of imprisonment, along with jail reimbursement fees. The circuit court assessed that Daniels owed Hickman County $2,145 in jail reimbursement fees: $25 a day for the first 13 days, then $26 a day for the each of the remaining 70 days. 3

During the sentencing hearing, the circuit court confirmed that
Daniels had received , reviewed , and agreed with his Pre

- S entence Investigation Report . Then, the circuit court detailed the jail fees owed

. T he Commonwealth
did not pres e nt evidence regarding the validity of the fees or the county governing body’s approval of such fees. T he Commonwealth did not appear to know much about the fees at all, and initially disagreed with the calculations of the circ uit

court , stating that it believed the per

- day rate was the same “whether it was before or after” July 1, 2021.

2 North Carolina v. Alford , 400 U.S. 25 , 91 S. Ct. 160, 27 L. Ed. 2d 162 (197 0 ) ; a plea under which the defendant does not admit to the charges but pleads guilty because the evidence agains t him or her is overwhelming.

3 Th e circuit court order detailed that the county had implemented a new policy on Daniel s ’s fo urteen th day of incarceration that increas ed the per

- day fee by $ 1.- 3

- T he circuit court noted that “ it was s howing a $25 and a $26” and openly asked the courtroom attendees if that was accurate. The individual sitting directly next to the judge, presumably someone who works for hi m or the
courthouse , answered “yes.” 4 The circuit court , having seemingly satisfied the question, then reiterated that it was $26 after July 1 , to which t he Commonwealth responded “o kay, if that’s the case, then [Daniels] has 13 [days] before [July 1] and 70 after.” The discussion ended there. No evidence was presented to validate the policies, the change thereof on July 1, or the governing body’s approval of such policies. Before adjourning , the circuit court mentioned that Daniels’s jail fees would be due when he walked out of jail.

Following the hearing, in February 2022, the circuit court entered an order stating The Court having been advised that [Daniels] has been

incarcer ated in j ail prior to the date of sentencing, and the Court being further aware that Hickman County does not operate a j ail and had adopted a jail fee ordinance/policy pursuant to applicable law and set j ail fees at actual costs of payment to the other cou nty j ails at $25

. 00 per day , PRIOR to July 1 st , 2021 , and the Court being further advised that Hickman County has adopted a NEW jail fee ordinance pursuant to applicable statute and has esta bli shed a jail fee of $26

. 00 per day the actual costs of payment to other county j ails EFFECTIVE July 1 , 2021 and the C ourt finding that these costs are reasonable

4 Neither the Commonwealth nor the defense attorney confirmed or presented evidence confirming the fees.- 4

- pursuant to KRS 441

. 265, and being otherwise sufficiently advised,
IT IS THEREFORE THE ORDER OF THIS COURT that the defendant reimburse Hickman County at the rate of $25

. 00 per day for each of the 13 days spent in incarceration (before July 1, 2021) prior to sentencing

. IT IS THEREFORE THE ORDER OF THIS COURT that the defendant reimburse Hickman County at the rate of $26

. 00 per day for each of the 70 days spent in incarceration (July 1, 2021 to present) p rior to sentencing [.]
Daniels now appeals the order regarding the jail reimbursement fees
and claims the Commonwealth failed to pr esent evidence of the reimbursement polic ies , as KRS 441.265 requires. Daniels recognize s that he did not preserve the
issu e below and request s palpable error review. See RCr 5 10.26.
STANDARD OF REVIEW An unpreserved issue, like that found here, “ may be noticed on appeal only if the error is ‘ palpable ’ and ‘ affects the substantial rights of a party [

. ] ’”
Com monwealth v. Jones , 283 S.W.3d 665, 668 (Ky. 2009) (citing RCr 10.26)

. A n error is palpable “ only if it is clear or plain under current law ” and only if “it is more likely than ordinary error to have affected the judgment.” Id. (citation s omitted). Even when the error is palpable and prejudicial , relief is still not
warranted “ unless the reviewing court further determines that it has resulted in a

5 Kentucky Rule of Criminal Procedure.- 5

-

manifest injustice, ” meaning “ the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘ shocking or jurisprudentially
intolerable. ’ ” Id. (quoting Martin v. Commonwealth , 207 S.W.3d 1, 4 (Ky. 2006) )

. ANALYSIS As an initial matter, quoting Chadwell v. Commonwealth , 627 S.W.3d 899, 902 (Ky. 2021), the Commonwealth claims that Daniels’s failure to raise the issue of jail fees at sentencing and the circuit court’s decision adhering to the facts
in the record means “there is no error, ‘sentencing or otherwise[,]’ to correct on appeal.” We disagree. First , Chadwell stated that the defendant’s failure to raise
the issue of poverty status before the trial court did not constitute error. Id. (citation omitted). Here, we have no issue regarding poverty status or court costs
and find the reference to Chadwell largely irrelevant on the issue of jail fees

.

Second, the Kentucky Supreme Court, more recently than Chadwell , clarified that “since sentencing is jurisdiction al it cannot be waived by failure to object. Thus, sentencing issues may be raised for the f irst time on appeal [

. ] ” Capstraw v. Commonwealth , 641 S.W.3d 148, 161 (Ky. 2022) (quoting Travis v.
Commonwealth , 327 S.W.3d 456, 459 (Ky. 2010) ). In Capstraw

– contrary to the
Commonwealth’s assertions

– the Kentucky Supreme Court found error where a

c ircuit court imposed jail fees, the defendant failed to preserve the issue, and the- 6

-

defendant requested palpable error review. Id. at 161

- 62 . As we have an identical situation before us, we will follow the relevant precedent, i.e. , Capstraw

.

Next, Daniels argues that the failure of the Commonwealth to present evidence regarding the jail reimbursement policy violated KRS 441.265(2)(a) and
relevant caselaw , which amounted to palpable error. We agree. KRS 441.265(2)(a) states :

The jailer may adopt, with the approval of the county ’ s governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:
1. An administrative processing or booking fee;
2. A per diem for room and board of not more than fifty dollars ($50) per day or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail. Not later than the second Friday in February of e ach year, the Department of Corrections shall adjust the fifty dollar ($50) maximum per diem for room and board at a rate accounting for any percentage increase or decrease in the nonseasonally adjusted annual average Consumer Price Index for All Urban Con sumers, U.S. City Average, All Items, as published by the United States Bureau of Labor Statistics, using 2022 as the base year;
3. Actual charges for medical and dental treatment; and
4. Reimbursement for county property damaged or any injury caused by the pr isoner while confined to the jail.- 7

- In Capstraw , the Kentucky Supreme Court emphasized that in order to impose jail fees against a criminal defendant, some evidence that a jail fee policy had “ been adopted by the county jailer with approval of the county’ s governing body in accordance with KRS 441.265(2)(a) ” must be presented at sentencing

. 641 S.W.3d at 161

- 62 (citing Weatherly v. Commonwealth , No. 2017

- SC

- 000522

- MR, 2018 WL 4628570, at *1, *10 (Ky. Sep. 27, 2018) )

.

Like here, the defendant in Capstraw argue d that th e circuit court committed palpable error when it imposed jail fees “ because there was no evidence
of record that the [count y ] jail had adopted a jail fee reimbursement policy. ” Id. at
161 . The Kentucky S upreme Court agreed and vacated the order imposing jail fees, finding that “there [was] no evidence that [the county] had established a jail fee reimbursement policy pursuant to statute, and no evidence that such policy was ever presented to the trial cour t to be considered in sentencing.” Id. (quoting Weatherly , 2018 WL 4628570, at *10).

The Commonwealth, perhaps recognizing its predicament, now attempts to distinguish Capstraw from the present case and argues that our Supreme Court vacated the jail fees in Capstraw “because the court’s sentencing order made no mention of a jail fee reimbursement policy[.]” 6 However, that was

6 The Commonwealth makes a similar claim usi ng Campbell v. Commonwealth , No. 2020

- CA

0690

- MR, 2021 WL 1051590 , at *1, *5 (Ky. App. Mar

. 19, 2021). This unpublished case,- 8

-

not the Court’s finding. Instead, the Kentucky Sup reme Court clearly stated that it was required to vacate the jail fees “ because there was no such evidence presented during [ defendant’s ] sentencing [.]” Id. at 162 (emphasis added)

. Therefore, Capstraw does not support the assertion of the Commonwealth that the jail fee policy ’s validity and approval can be established simply by declar ing it in the
circuit court order. Instead, evidence must be presented to the circuit court to be
considered during sentencing. Id.

Although un published, o ur Supreme Court cited Weatherly when
mak ing such determination

. Therefore, we find it valuable to analyze here

. I n Weatherly , again, the defendant requested discretionary review of the circuit court’s imposition of jail fees for palpable error and, again, the Kentucky Supreme
Court found palpable error. Weatherly , 2018 WL 4628570 , at *10. Our Supreme
Court determined that “[f] rom the record, there is no evidence that [the county] h ad established a jail fee reimbursement policy pursuant to statute, and no evidence

released before Capstraw , also reversed the judgment imposing j ail fees but noted that “the trial court failed to make any finding that the jail er adopted, with the approval of the county’s governing body, a prisoner fee and expense reimbursement policy under KRS 44 1 .265(2)(a).” Id. at *5. Therefore, the Commonwealth concludes that a circuit court need only mention such “fin dings” in its order to adhere to applicable law. See also McAllister v. Commonwealth , No. 2019

- CA

- 0243

- MR, 2020 WL 4917921, at *1 , *3 (Ky. App. Aug. 21, 2020). Such conclusion s ignore binding precedent of our Supreme Court, published after Campbell and M cAllister , which requires the presentation of evidence to be considered at sentencing

. Id. For the same reasons discussed in our Capstraw analysis , we , again, are not persuaded.- 9

-

that such policy was ever presented to the trial court to be considered in sentencing. ” Id. Therefore, our Supreme Court vacated the jail fees. Id.

Similarly, here, the record contains no evidence to establish the jail fee or its adoption by the county’s governing body and no evidence that such proof

was presented at sentencing

. 7 The sole verbal confirmation that any such policies
even existed came not from a party o r the circuit court judge , but from a bystander. The written record is equally lacking. T he circuit court’s order and the Judgment and Sentence on Plea of Guilty , which simply stated the days of incarceration for each per

- day rate, are the only document s in the record that even reference the j ail
fees. Although the circuit court order stated that polic ies existed and that the county adopted the policies “ pursuant to applicable law , ” no evidence was presented to support such claims

. In fact, as discussed, it did not appear that the Commonwealth was even aware of such policies, much less whether each was valid or properly approved under applicable law

.

7 The Commonwealth now attempts to submit new evidence

– found nowhere in the record

– to meet such requirements; and claims that we are permitted to take judicial notice of such documents. Kentucky Rule of Evidence 201(f) (stating “Judicial notice may be taken at any stage of the proceeding.”). Again, this is large ly irrelevant because judicial notice “allows a court to use commonly

- known assumptions of fact as evidence.” Marchese v. Aebersold , 530 S.W.3d 441, 447 (Ky. 2017). An unauthenticated document stating a governing body’s approval of a jail fee reimburseme nt policy would not constitute “commonly

- known assumptions of fact,” especially considering the Commonwealth did not know about the policies. Further, Capstraw was clear that the evidence must be presented to the trial court to be considered in sentencing

. 641 S.W.3d at 162.- 10

- The failure of the Commonwealth to present any evidence (or even be
aware that such policies existed before imposing the fees) resulted in manifest injustice.
CONCLUSION

During sentencing, t he Commonwealth failed to present any evidence
to the circuit court that Hickman County had established the jail fee policies and that the county governing body had approved them

. Therefore, the imposition of jail fees res ulted in palpable error , and the o rder of the Hickman Circuit Court imposing jail fees is VACATED.

ALL CONCUR

.

BRIEF S FOR APPELLANT: Erin Hoffman Yang Kayley V. Barnes Frankfort, Kentucky BRIEF FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky