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Date: 10-06-2018
Case Style:
KEITH MONROE OWENS, JR. V. COMMONWEALTH OF KENTUCKY
Case Number: 2017-SC-000381-MR AND 2017-SC-000445-MR
Judge: MEMORANDUM OPINION OF THE COURT
Court: Kentucky Supreme Court
Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General
Andrew Jacob Gochenaur
Special Assistant Attorney General
Defendant's Attorney: Robert Chung-Hua Yang
Assistant Public Advocate
Description:
On appeal, Owens argues that (1) the Court of Appeals erred in
dismissing his petition for writ as moot, and (2) the trial court erred in
imposing court costs in violation of Kentucky Revised Statute (KRS) 23A.205.
However, by entering a guilty plea, Owens waived all defenses to his charges,
thus rendering his petition for writ moot. Additionally, Owens failed to request
that the trial court determine his ability to pay court costs, which means there
is no error for this Court to correct on appeal. Accordingly, we affirm.
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1 This case is assigned three Supreme Court case numbers: 2017-SC-000381- MR, 2017-SC-000399-OA, and 2017-SC-000445-MR. Owens filed a notice of appeal, pro se, on July 27, 2017, which was assigned case number 2017-SC-000381-MR. On August 7, 2017, the Department of Public Advocacy filed a duplicate notice of appeal, which was assigned case number 2017-SC-000445-MR. Case number 2017-SC- 000399-OA is the appeal from the original action, the petition for writ of mandamus, in the Court of Appeals. On this Court’s own motion, case numbers 2017-SC-000381- MR and 2017-SC-000445-MR were consolidated. On October 31, 2017, this Court granted Owens’ motion to consolidate 2017-SC-000399-OA with the already consolidated cases. Therefore, this opinion addresses all assigned case numbers and deals with the two issues Owens raises on appeal: (1) whether the Court of Appeals properly dismissed his petition for writ of mandamus, and (2) whether the Jefferson Circuit Court properly imposed court costs.
2 Owens titled his pro se motion as “Writ of Mandamus and/or Writ of Prohibition.” The conclusion of the petition states that the relief sought is a mandate to the lower court to dismiss the indictment. This relief falls more squarely in a writ of mandamus, and therefore the petition will be referred to as a writ of mandamus in this opinion.
FACTS AND PROCEDURAL HISTORY
On October 6, 2014, a grand jury in Jefferson Circuit Court indicted
Owens and charged him with eight counts of robbery for robberies that
occurred over a period of ten days in September 2014. The trial court
appointed a public defender to represent Owens on October 7, 2014. On
September 14, 2015, Owens filed his first pro se motion for a fast and speedy
trial. The trial court did not rule on the motion, and Owens followed up with a
letter to the court on July 26, 2016, inquiring about the status of the motion.
If the court intended to deny the motion, Owens requested findings of fact and
conclusions of law.
The trial court had previously scheduled the case for a jury trial on June
20, 2016, and then for August 1, 2016, but on that second trial date defense
counsel requested a continuance. Defense counsel stated that he and Owens
were negotiating a plea agreement with the Commonwealth. The court
scheduled a status conference for September 1, 2016.
At the September 1 status conference, the trial court informed Owens’s
counsel about the July 26 correspondence regarding a speedy trial; defense
counsel was unaware of the correspondence. Additionally, the Commonwealth
stated that despite trying to reach an agreement over the past several weeks,
the parties appeared to be at an impasse. A week later the case was called but
no proceedings were held because neither party appeared. After consultation
with both sides, the court scheduled the trial to begin on April 17, 2017.
On December 2, 2016, Owens filed a pro se motion for final disposition of
the charges pursuant to KRS 500.110. Additionally, on January 23, 2017, he
filed a pro se motion for a hearing on his motions. There is no response from
the court to any of these pro se motions in the record.
On March 8, 2017, Owens filed a pro se motion for writ of mandamus
against Judge Mitch Perry in the Kentucky Court of Appeals, alleging that his
speedy trial rights had been violated. He also tendered a motion to proceed in
forma pauperis but failed to tender the filing fee. The petition was not actually
filed in the Court of Appeals until April 5, 2017, when he submitted a partial
filing fee.
On April 17, 2017, with a jury trial scheduled to begin, Owens pled guilty
to one count of first-degree robbery with an agreed sentence of ten years, and
seven counts of second-degree robbery, with ten years for each count, which
was enhanced to twenty years for each count for Owens being a persistent
felony offender.
In response to Owens’s petition for writ in the Court of Appeals, the
Commonwealth filed a motion to dismiss the petition as moot due to the entry
of a guilty plea.
On June 26, 2017, the trial court sentenced Owens to twenty years’
imprisonment in accordance with the terms of his plea deal. On June 28, the
Court of Appeals granted the Commonwealth’s motion to dismiss the writ of
mandamus as moot. That same day, the trial court entered its judgment.
which included a provision stating that if Owens is released from custody for
any reason, he shall pay court costs in the amount of $130.00.
1. The Court of Appeals Did Not Err in Dismissing the Writ of Mandamus as Moot.
Owens argues that the Court of Appeals erred in dismissing the writ of
mandamus petition as moot. Owens filed numerous pro se motions asserting
that his speedy trial rights were violated, which culminated with his petition for
writ of mandamus to the Court of Appeals. Owens requests that this Court
reverse his convictions and sentence, remand his case to the trial court, and
order the court to dismiss the indictment against him.
In Hoskins v. Mancie, this Court recognized two broad classes of writ
cases: “(1) where the inferior court lacks jurisdiction; and (2) where the court,
having jurisdiction is proceeding erroneously.” 150 S.W.3d 1, 9 (Ky. 2004). In
the second class of cases, there must be a showing of “great injustice and
irreparable injury for which there is no adequate remedy by appeal or
otherwise.” Id
in this case, there is no doubt that the trial court had jurisdiction,
making the second class of writs the only viable option for Owens. While
Owens cites the Hoskins case, he did not establish that he had no other
remedy, nor did he prove that he would suffer great injustice or irreparable
injury. Despite stating that the delay between indictment and trial “hampered
a proper defense,” there is no explanation of such hampering. Owens provided
no evidence of what caused the delays and alleged violation of his right to a
speedy trial. Further, Owens had, and utilized, the remedy of a direct appeal.
5
Moreover, “a plea of guilty made knowingly and voluntarily, waives all
defenses to the original charges other than the defense that the indictment fails
to charge an offense.” Corbett v. Commonwealth, 717 S.W.2d 831, 832 (Ky.
1986). On April 17, 2017, Owens indicated that he wanted to change his plea
to guilty because he had reached a plea agreement with the Commonwealth.
At that time, the trial court engaged in a plea colloquy with Owens to ensure
that Owens understood the ramifications of entering a guilty plea. Owens
affirmed that he had time to talk to counsel and all his questions were
answered; that he did not have any other questions for his attorney or the
judge about anything involving his case; and that he was satisfied with the
legal advice he was given. At no point during the plea colloquy did Owens or
his counsel raise the speedy trial or writ issue. The trial court determined that
Owens’s guilty plea was made knowingly and voluntarily.
Since the plea was made knowingly and voluntarily, the Court of Appeals
was correct in dismissing Owens’s original writ action as moot. Owens argues
that the Court of Appeals’ delay in ruling on the writ was a direct cause of the
mootness. He asserts that if the Court of Appeals had granted the writ prior to
sentencing, Owens could have moved the trial court to withdraw his guilty plea
and have the writ enforced. However, “[rjelief by way of prohibition or
mandamus is an extraordinary remedy and we have always been cautious and
conservative both in entertaining petitions for and in granting such relief.”
Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). If Owens thought the Court
of Appeals would grant his petition for writ of mandamus, he could have
declined the Commonwealth’s plea offer or prolonged entering his guilty plea
until the appellate court ruled.
The law is clear - when a defendant enters a guilty plea, he waives all
defenses, except that the indictment fails to charge an offense. This exception
is not at issue here. Therefore, we affirm the dismissal of the petition for writ
of mandamus as moot.
II. The Trial Court Did Not Err in Ordering Owens to Pay Court Costs.
The final sentencing judgment states: “[i]f the defendant is released from
custody for any reason, he shall pay court costs in the amount of $130.00.”
Owens argues that the trial court erred in ordering him to pay court costs in
violation of KRS 23A.205. Owens admits that this issue was not preserved for
appellate review, but nonetheless asserts that because this is a sentencing
issue, it “cannot be waived by failure to object.” Jones v. Commonwealth, 382
S.W.3d 22, 27 (Ky. 2011). However, in Spicer v. Commonwealth, this Court
held that “[i]f a trial judge 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.” 442 S.W.3d 26, 35 (Ky. 2014).
The trial court did not err in ordering Owens to pay court costs. KRS
23A.205(2) states:
The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, unless the court finds that the defendant is a poor
7
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.
The statute requires the imposition of court costs on a convicted defendant,
“unless the court finds that the defendant is a poor person defined by KRS
453.190(2).” This requires a factual determination by the trial court that the
defendant is a “poor person.” The “poor person” definition in KRS 453.190(2)
states that such a person is “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.”
In Spicer, this Court determined that imposing court costs in a judgment
is only illegal if such costs are imposed on someone adjudged to be “poor.” 442
S.W.3d at 35. This Court declined to reverse court costs on appeal in Spicer
because the trial judge was not asked at sentencing to determine Spicer’s
poverty status “and did not otherwise presume the defendant to be a . . . poor
person before imposing court costs.” Id. “[T]here is no affront to justice when
we affirm the assessment of court costs upon a defendant whose status was
not determined.” Id.
There is nothing in the record to suggest an assessment of Owens’s
financial status, other than the appointment of a public defender. The
appointment of a public defender does not necessarily mean a defendant is
exempt from paying court costs. Spicer, 442 S.W.3d at 35. Owens did file a
motion to proceed in forma pauperis on his original writ action in the Court of
Appeals. This motion appears to be an attachment to one of the several pro se
8
pleadings Owens filed. Additionally, Owens filed a motion to proceed in forma
pauperis on his appeal from his guilty plea, but that motion was not filed until
approximately one month after final sentencing. However, the requirements for
being permitted to proceed as a pauper versus the “needy person” standard
used to determine indigency under KRS 31.110 are distinct.
The “needy person” standard focuses only on the inability “to provide for
the payment of an attorney and all other necessary expenses of
representation.” Maynes v. Commonwealth, 361 S.W.3d 922, 926 (Ky. 2012).
“A defendant who qualifies as ‘needy’ under KRS 31.110 because he cannot
afford services of an attorney is not necessarily ‘poor’ under KRS 23A.205.”
Hall V. Commonwealth, 551 S.W.3d 7, 40 (Ky. 2018). Additionally, the
definition of a “needy person” under KRS 31.100 focuses on a present need,
while KRS 23A.205 takes into account the “foreseeable future” ability to pay
court costs. Therefore, even if the trial court was aware of Owens’s need to
proceed in forma pauperis on appeal, this did not automatically qualify him as
a “poor person” for purposes of considering court costs.
Owens cites, and criticizes the Commonwealth for not addressing, Buster
V. Commonwealth, which held that “all determinations related to whether and
how a defendant will pay court costs must be made by or at the time of
sentencing.” 381 S.W.3d 294, 305 (Ky. 2012). While this is the correct
statement of the law, it’s applicability to the present case is misplaced. In
Buster, the trial court did not determine court costs at sentencing but rather
decided to delay the determination of court costs, and whether Buster was a
“poor person,” until his release. In Owens’s case, the trial court determined
court costs in its final judgment. The trial court did not attempt to reserve
jurisdiction to impose court costs at the time of Owens’s release, as the trial
court incorrectly did in Buster.
In sum, Owens did not ask the trial court to determine his poverty status
at the time of sentencing. “It is only when the defendant’s poverty status has
been established, and court costs assessed contrary to that status, that we
have a genuine ‘sentencing error’ to correct on appeal.” Spicer, 442 S.W.Sd at
35. Owens did not object to the imposition of court costs, and there was no
sentencing error given that the trial court was never asked to assess Owens’s
ability to pay. Therefore, we affirm the imposition of court costs.
Outcome: For the foregoing reasons, we affirm the trial court’s conviction and
sentence and further affirm the Court of Appeals’ dismissal of Owens’s petition for writ of mandamus as moot.
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