Opinion of the Court by Justice ABRAMSON.
Kentucky Revised Statute (KRS) 23A.205 provides that persons convicted of a crime in Circuit Court shall pay court costs of $100.00. The statute allows court costs to be waived for "poor persons," as that term is defined in KRS 453.190(2), the in forma pauperis statute. KRS 31.110 provides that "needy persons" facing serious criminal charges are entitled to representation by an attorney at public expense. Should "needy" persons under the latter statute automatically be immune from the court costs imposed by KRS 23A.205? The Court of Appeals said they should not and upheld an order of the Jefferson Circuit Court imposing court costs on Desean Maynes. We accepted Maynes's motion for discretionary review to consider the interplay of these statutes, and we now affirm. Historically and under our current statutory scheme, there is no prohibition on imposition of court costs on a defendant who qualifies for the services of a public defender if the trial court determines under the circumstances of that particular case that the defendant is able to pay such costs.
In August 2009, nineteen-year-old Desean Maynes was involved with others in a residential burglary in Louisville. Because Maynes's role in the offense appeared to be minor, the Commonwealth, in exchange for Maynes's guilty plea, offered to reduce the second-degree burglary charge to third-degree and to recommend that a three-year sentence be diverted for five years. Maynes accepted that offer, and at the plea colloquy in October 2009 the trial court approved the agreement subject to the condition, among others, that within six months Maynes pay the
Upholding the trial court's ruling, a unanimous panel of the Court of Appeals dismissed Maynes's hardship argument by noting that he had not presented any evidence that he was disabled or otherwise incapable of holding a job. The Court also held that when read in conjunction with KRS 23A.205, KRS 31.211, and KRS 453.190, KRS 31.110 does not create the blanket immunity from costs Maynes attributes to it. Before this Court, Maynes does not challenge the trial court's implicit finding that he is capable of working, but he contends that the Court of Appeals erred either by disregarding the plain language of KRS 31.110 or by misconstruing the court costs statute's own immunity provision. We disagree with both contentions.
Statutory construction is a matter of law which requires de novo review by this Court. Hearn v. Commonwealth, 80 S.W.3d 432, 434 (Ky.2002) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, 983 S.W.2d 488 (Ky.1998). In construing statutes, our goal is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration. Osborne v. Commonwealth, 185 S.W.3d 645 (Ky.2006). We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes. Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky.2008); Lewis v. Jackson Energy Cooperative Corporation, 189 S.W.3d 87 (Ky.2005). We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. Layne v. Newberg, 841 S.W.2d 181 (Ky.1992). Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute's legislative history or the canons of construction. MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193 (Ky.2009).
We are confronted in this case with overlapping statutes pertaining to the rights of indigent defendants and the imposition of court costs. To understand how the different provisions relate, it is necessary to review briefly how they came to be.
Kentucky has long recognized that poor persons may be allowed to prosecute a civil action without paying costs or fees and with the assistance of appointed counsel. As originally enacted in 1798, the in forma pauperis statute provided that
Act approved January 30, 1798—2 Litt. 39.
The direct predecessor of our current in forma pauperis statute, extending the status to defendants, was enacted at least as early as the 1850s, and appears at page 286 in the 1860 edition of the Revised Statutes for the Commonwealth compiled by Richard H. Stanton:
This statute became section 884 of Carroll's Kentucky Statutes (1894), which in turn, upon the 1942 adoption of the Kentucky Revised Statutes, became our current in forma pauperis statute, KRS 453.190. The statute now provides in relevant part that "[a] court shall allow a poor person residing in this state to file or defend any action or appeal therein without paying costs."
Although theoretically the in forma pauperis statute was and is available to criminal defendants, and although it was sometimes invoked by such defendants seeking to be relieved of the costs of an appeal, Braden v. Commonwealth, 277 S.W.2d 7 (Ky.1955); Clouse v. Glass Milling Co., 285 Ky. 690, 149 S.W.2d 9 (Ky. 1941); Shipman v. Commonwealth, 264 Ky. 15, 94 S.W.2d 32 (Ky.1936), historically the right of an indigent criminal defendant to appointed counsel at trial was usually asserted under Section 11 of our Kentucky Constitution. Indeed, this Court has noted that that right, like the rights to trial by jury and confrontation, "is a matter of procedural due process, ... not substantive criminal law. The responsibility for determining when and whether counsel must be appointed for a criminal defendant in Kentucky is a function of the judicial department, not the legislature." Fraser v. Commonwealth, 59 S.W.3d 448, 455-56 (Ky.2001) (citation omitted). By the late 1940s, Section 11 had been construed to require that a felony defendant appearing without counsel be advised of his right to counsel, and, upon an adequate showing of the defendant's inability to afford an attorney, that one be assigned to represent him. Calhoun v. Commonwealth, 301 Ky. 789, 193 S.W.2d 420 (1946); Gholson v. Commonwealth, 308 Ky. 82, 212 S.W.2d 537 (1948); Hart v. Commonwealth, 296 S.W.2d 212 (Ky.1956). See also Kentucky Rule of Criminal Procedure (RCr) 3.05(2).
Under the constitutional provision, the practice that developed was for representation to be provided to indigent felony defendants on an involuntary, uncompensated basis. Fraser, supra (describing the former practice and citing B. Deatherage, Comment, The Uncompensated Appointed Counsel System: A Constitutional and Social Transgression, 60 Ky. L.J. 710 (1971-72)). The trial court would assign the case to a member of the local bar, whose duties as an officer of the court were thought to include the pro bono representation of indigent defendants. Id. In
In response, in 1972 the General Assembly passed House Bill 461, the Act creating this state's Department of Public Advocacy. Codified as KRS Chapter 31, the Department of Public Advocacy (DPA) Act provides:
1972 Ky. Acts. Chapter 353, Section 11 (emphasis supplied); currently, with some amendment not pertinent here, KRS 31.110(1). "Serious crime" was defined to include felonies and "a misdemeanor or offense any penalty for which includes the possibility of confinement for 6 months or more or a fine of $500 or more." Section 10. That definition has since been amended, to comply with Argersinger, supra, to include "[a] misdemeanor or offense any penalty for which includes the possibility of confinement." KRS 31.100(4). "Needy person" was, and as pertinent here still is, defined as a person "who at the time his [or her] need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation." Section 10 and KRS 31.100(3).
Kentucky, of course, is not alone in seeking to abide by the federal constitutional standards. In the wake of Gideon, every state and the federal government enacted legislation providing in some way for the representation of indigent criminal defendants at public expense. Wayne D. Holly, Rethinking the Sixth Amendment for the Indigent Criminal Defendant: Do Reimbursement Statutes Support Recognition of a Right to Counsel of Choice for the Indigent? 64 Brook. L.Rev. 18.1 (1998). The expense is by no means trivial. According to its web site, the Department of Public Advocacy's 2011 budget included some $42,000,000 in state funds. Department of Public Advocacy, Connecting for Justice, Fiscal Year 2011 Annual Litigation Report 2 (2011), available at http://dpa.ky.gov/dpapub.htm (follow "DPA 2011 Annual Report" hyperlink under "Reports"). Not surprisingly, therefore, every state's indigent defense legislation includes provisions for the recoupment of defense costs from defendants who are able to contribute to them. Holly, Rethinking the Sixth Amendment, supra. The principal recoupment provisions of the 1972 Act appeared
(emphasis supplied).
Although they have evolved to some extent since 1972, subsections (1) and (2) just quoted still appear together as subsections (1) and (2) of KRS 31.120. In 2002, however, subsection (3) was moved from KRS 31.120 to a new recoupment section of the Chapter, KRS 31.211. That section now provides in pertinent part as follows:
Thus, while KRS 31.110 has, from the inception of the public defender program in 1972, provided that "needy" defendants entitled to representation under the DPA Act shall be relieved of court costs as well as of attorney fees, from the beginning as well the legislation's recoupment provisions have recognized that the universe of criminal defendants is not divided into those who can pay in full and those who can pay nothing. Those provisions have made clear, rather, that "need" is a matter of degree and that defendants eligible for DPA representation may nevertheless be required to contribute to their defense or to pay court costs if the court determines that they are able to do so.
The third statute applicable to. resolution of the issue before the Court is the aforementioned court costs statute, KRS 23A.205. Adopted in 1976 and effective as of January 2, 1978, the original KRS 23A.205 provided for court costs of $50.00 and in subsection (2) provided simply that costs "may be probated or suspended at the discretion of the court." Court costs were increased in 1984 and 1998 with courts retaining the authority to probate or suspend payment.
KRS 23A.205 (emphasis supplied). The court costs statute adopts the following "poor person" definition in KRS 453.190(2):
Thus the "poor person" standard in KRS 23A.205 is distinguishable from the "needy person" standard in KRS 31.100 because the latter focuses only on the inability "to provide for the payment of an attorney and all other necessary expenses of representation." Also, the KRS 31.211 recoupment provisions provide solely for a "present tense" determination while KRS 23A.205(2) directs the court to consider both the defendant's ability to pay at present and in "the foreseeable future."
Having carefully considered the applicable statutes, we conclude that the trial court was authorized under Kentucky law to impose court costs despite Maynes's status as an indigent defendant entitled to the services of a public defender. While the directive in KRS 31.110(1) that the court "shall waive all costs" for such defendants seems mandatory at first blush, a full reading of the 1972 legislation and the current DPA Act belies that conclusion. From its inception through the present, the DPA Act has allowed for imposition of costs against those DPA-represented defendants who can afford to pay. Moreover, a person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney yet not be "poor" under KRS 23A.205 as it has existed since 2002 unless he is also unable to pay court costs without "depriving himself or his dependents of the necessities of life, including food, shelter or clothing." Finally, the KRS 23A.205 directive to consider not only the defendant's present ability to pay court costs but also his ability "in the foreseeable future" cannot be overlooked. The trial court's determination here that Maynes would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205 is not clearly erroneous and, thus, the Court of Appeals correctly upheld the portion of Maynes's sentence imposing those costs.
Against this conclusion, Maynes refers us to Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky.1987). In that off-cited opinion, this Court reversed an order imposing KRS 23A.205 costs and held that because KRS 31.110 addresses specifically the rights of indigent defendants accused of serious crimes, its provisions regarding the waiver of costs take precedence over KRS 23A.205's more general provision imposing costs. Edmonson was decided fifteen years before the court costs statute, KRS 23A.205, was amended to adopt the "poor person" standard for determining whether a defendant should be relieved, in whole or in part, of court costs. So, at the time Edmonson was decided, KRS Chapter 31 regarding DPA representation of
We need not tarry over whether those cases raised the specific statutory construction issue now before us because their factual distinctions from the present case support the conclusion that their outcomes would not have changed under a more searching analysis of the relevant statutes. In all of these cases, including Edmonson, the indigent defendant was sentenced to at least twenty years in prison. Thus, in none of those cases was the defendant's ability to pay made an issue, nor in any of them was the recoupment statute invoked. Without some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper. Here, by contrast Maynes was to be released from custody pursuant to his diversion agreement, and so, unlike the defendants in the cases just referred to, he could reasonably be expected in the near future to acquire the means to pay the relatively modest court costs of $130.00.
Maynes advances an alternative rationale for his asserted immunity from KRS 23A.205 court costs. As we understand it, his argument may be summarized as follows: The "court costs" referred to in the recoupment statute, KRS 31.211 do not include the "court costs" imposed by KRS 23A.205, and thus, contrary to the Court of Appeals conclusion, the latter are not subject to recoupment. Rather, Maynes's liability for the KRS 23A.205 costs hinges on the interplay of that statute and KRS 31.110 which requires waiver of court costs for "needy persons" entitled to representation under KRS Chapter 31. Edmonson holds that KRS 31.110 is the more specific statute and therefore he is immune from the KRS 23A.205 costs. We reject this argument for several reasons.
As already noted, Edmonson dealt with the pre-2002 version of KRS 23A.205 when the statute simply allowed the court to exercise discretion in suspending or probating court costs. As of August 1, 2002, that statute mandates imposing court costs unless the defendant is a "poor person" as defined and does not have the ability to pay presently or in the foreseeable future. Consequently, Edmonson can no longer be the basis for resolving the conflict between the cost waiver directive in KRS 31.110(1) and the current court costs statute. Indeed, KRS 23A.205 is now the more recently enacted statute so under general principles of statutory construction it controls. Bowling v. Ky. Dept. of Corrections, 301 S.W.3d 478, 491 n. 4 (Ky.2010) (citing Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky.1987) ("Our rule [ ] of statutory construction [is] that ... a later statute is given effect over an earlier statute.")) KRS 23A.205 is also the more specific statute in its post-2002 form because it now refers to the imposition of court costs "upon conviction in a case." This is the time frame when court costs are logically imposed and it is distinct from the time
Although the statutory conflict can be resolved without resort to the recoupment statute we are compelled to address Maynes's argument that the General Assembly meant to exclude the "court costs" imposed by KRS 23A.205 from the "court costs" referred to in KRS 31.211.
This conclusion is not altered by KRS 31.211(8), which, as Maynes notes, provides that "[a]ll moneys collected under this section shall be placed in a special trust and agency account for the Department of Public Advocacy, and the funds shall not lapse." Again, Maynes contends that "all moneys collected under this section" includes the "court costs" referred to in subsection (1), and so cannot be referring to the "court costs" imposed by KRS 23A.205. Again, we disagree.
On a first reading, subsection (8)'s reference to "all moneys collected under this section" seems odd, since subsections (3) and (4) have already accounted for "all
Finally, our conclusion that liability for KRS 23A.205 court costs at the time of conviction is controlled by the terms of that statute is not inconsistent with our conclusion that the court costs in KRS Chapter 31 include KRS 23A.205 court costs. The statutes themselves substantiate this point. KRS 31.211(1) begins with a directive to the trial court to determine "at arraignment" whether a defendant has the ability to pay "a partial fee for legal representation, the other necessary services and facilities of representation, and court costs." This initial determination is not set in stone because the closing sentence of subsection (1) states that "[t]his partial fee determination shall be made at each stage of the proceedings." This "fee" language can be construed as a `reference back to the very same assessment required at arraignment and thus would include consideration of the fees for representation, services and facilities as well as "court costs." In KRS 23A.205 the General Assembly has said precisely how court costs are to be handled at that "stage of the proceedings," i.e., "upon conviction." So when the court addresses recoupment at the time of sentencing, as to court costs KRS 23A.205 controls. To the extent the "partial fee determination" is read as limited to literally the "fees" for DPA's legal representation and necessary services and facilities, this construction would lend some credence to Maynes's argument that the recoupment provision in KRS 31.211 does not include court costs. Assuming that is the intended meaning, the statutory construction issue becomes reconciling the directive in KRS 31.110 that courts shall "waive all costs" for needy persons entitled to KRS Chapter 31 representation with the mandatory language in KRS 23A.205. As we have concluded, the latter is the later enacted and the more specific statute and is thus clearly controlling. In short, even if the recoupment statute could be read to not include court costs, the result is the same. Maynes was subject to the imposition of court costs upon conviction under KRS 23A.205 and the trial court did not err in so ruling.
In sum, unlike indigent litigants in general, who may be accorded relief from the expenses of litigation under the general in forma pauperis statute, indigent criminal defendants accused of serious crimes are entitled under the federal constitution to be represented by counsel both at trial and upon a first appeal as of right. To help ensure the provision of counsel to all such defendants, the General Assembly created the public defender system, whereby counsel
All sitting. All concur.