RENDERED: DECEMBER 16, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of 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.

CETRULO, JUDGE: Appellant Eric Daniels (“Daniels”) appeals the order of the 

Hickman Circuit Court requiring him to pay jail reimbursement fees pursuant to 

KRS1 441.265.

1 Kentucky Revised Statute.
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FACTUAL AND PROCEDURAL HISTORY

In November 2021, Daniels entered an Alford2 plea of guilty to firstdegree rape, third-degree rape, and second-degree unlawful transaction with a 

minor. Prior to sentencing, Daniels spent 83 days in jail. 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-Sentence Investigation 

Report. Then, the circuit court detailed the jail fees owed. The Commonwealth 

did not present evidence regarding the validity of the fees or the county governing 

body’s approval of such fees. The Commonwealth did not appear to know much 

about the fees at all, and initially disagreed with the calculations of the circuit 

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 (1970); a plea under 

which the defendant does not admit to the charges but pleads guilty because the evidence against 

him or her is overwhelming.

3 The circuit court order detailed that the county had implemented a new policy on Daniels’s 

fourteenth day of incarceration that increased the per-day fee by $1.
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The circuit court noted that “it was showing 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 him 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 the Commonwealth 

responded “okay, 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 

incarcerated in jail prior to the date of sentencing, and the 

Court being further aware that Hickman County does not 

operate a jail and had adopted a jail fee ordinance/policy 

pursuant to applicable law and set jail fees at actual costs 

of payment to the other county jails at $25.00 per day,

PRIOR to July 1st, 2021, and the Court being further 

advised that Hickman County has adopted a NEW jail fee 

ordinance pursuant to applicable statute and has 

established a jail fee of $26.00 per day the actual costs of 

payment to other county jails EFFECTIVE July 1, 2021 

and the Court finding that these costs are reasonable 

4 Neither the Commonwealth nor the defense attorney confirmed or presented evidence 

confirming the fees.
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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) prior to 

sentencing[.]

Daniels now appeals the order regarding the jail reimbursement fees 

and claims the Commonwealth failed to present evidence of the reimbursement 

policies, as KRS 441.265 requires. Daniels recognizes that he did not preserve the 

issue below and requests palpable error review. See RCr5 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[.]’” 

Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citing RCr 10.26). An 

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. (citations

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.
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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 jurisdictional it cannot be waived by failure to 

object. Thus, sentencing issues may be raised for the first 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 

circuit court imposed jail fees, the defendant failed to preserve the issue, and the 
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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 each 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 

Consumers, 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 prisoner while 

confined to the jail.
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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 argued that the circuit court 

committed palpable error when it imposed jail fees “because there was no evidence 

of record that the [county] jail had adopted a jail fee reimbursement policy.” Id. at

161. The Kentucky Supreme 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 court 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 using Campbell v. Commonwealth, No. 2020-CA0690-MR, 2021 WL 1051590, at *1, *5 (Ky. App. Mar. 19, 2021). This unpublished case, 
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not the Court’s finding. Instead, the Kentucky Supreme 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 declaring it in the 

circuit court order. Instead, evidence must be presented to the circuit court to be 

considered during sentencing. Id.

Although unpublished, our Supreme Court cited Weatherly when

making such determination. Therefore, we find it valuable to analyze here. In 

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] had 

established a jail fee reimbursement policy pursuant to statute, and no evidence 

released before Capstraw, also reversed the judgment imposing jail fees but noted that “the trial 

court failed to make any finding that the jailer adopted, with the approval of the county’s 

governing body, a prisoner fee and expense reimbursement policy under KRS 441.265(2)(a).” 

Id. at *5. Therefore, the Commonwealth concludes that a circuit court need only mention such 

“findings” 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 conclusions

ignore binding precedent of our Supreme Court, published after Campbell and McAllister, 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.
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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 or the circuit court judge, but from a bystander. 

The written record is equally lacking. The 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 documents in the record that even reference the jail 

fees. Although the circuit court order stated that policies 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 largely 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 reimbursement 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. 
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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, the 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 resulted in palpable error, and the order of the Hickman Circuit Court 

imposing jail fees is VACATED.

ALL CONCUR.

BRIEFS 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