Introduction

This memorandum opinion addresses two recurring sentencing issues in Kentucky criminal practice: (1) who may deliver victim impact statements and what those statements may contain; and (2) when and how trial courts may impose jail fee reimbursement under KRS 441.265.

Appellant Gary Lee Morgan entered an Alford plea to two counts of first-degree rape (with the “under 12” enhancement dropped) and received a maximum aggregate sentence of forty years. On appeal, he challenged (i) the trial court’s decision to allow the victim’s father, Daniel, to speak at sentencing and the incendiary content of that statement, and (ii) the imposition of jail fees absent proof that the county had adopted an approved jail fee reimbursement policy. Both issues were unpreserved; the Court therefore reviewed for palpable error under RCr 10.26.

The Supreme Court affirmed Morgan’s sentence and rejected the challenge to the victim impact statement, but vacated the jail fee assessment for lack of evidentiary support in the record. Along the way, the Court clarified the boundary between Marsy’s Law rights and a trial court’s discretionary authority at sentencing, reinforced limits on victim sentencing recommendations, and unequivocally reaffirmed the vacatur-only remedy for improperly imposed jail fees, declining the Commonwealth’s request for a remand to supplement the record.

Summary of the Opinion

• Victim impact speaker: Although the victim’s father was not designated as the “victim” under Marsy’s Law (Ky. Const. § 26A; KRS 421.500), the trial court had discretion at final sentencing to permit him to speak as an additional impact witness. That was not error.
• Content of impact statement: Religious invective and expressions of spiritual condemnation were permissible as emotive victim-impact content. However, the father’s request that the court impose the “maximum” sentence crossed the line into an improper sentencing recommendation under Hilton v. Commonwealth. Still, because the error was unpreserved, brief, unprompted, and addressed to a judge (not a jury), it did not amount to palpable error.
• Jail fees: The sentencing court erred by imposing jail fee reimbursement without record evidence that the county jailer had adopted, and the county governing body had approved, a jail reimbursement policy pursuant to KRS 441.265(2)(a). Consistent with Capstraw v. Commonwealth and Ford v. Commonwealth, the proper remedy is vacatur of the fee assessment—without remand to take new evidence.
• Admonition on appellate practice: The Court reminded the Commonwealth that RAP 41(A)(3) restricts citation to unpublished decisions to circumstances where no published opinion adequately addresses the point of law.

Detailed Analysis

Precedents and Authorities Considered

• Marsy’s Law and statutory “victim” definition: Ky. Const. § 26A; KRS 421.500(1)(a). The constitutional right “to be heard” extends to “victims” as statutorily defined. For minors, parents or other representatives qualify as “victims” only if designated by the court.
  • Robertson v. Commonwealth, 677 S.W.3d 309 (Ky. 2023): Clarifies that parents of minors must be designated to receive Marsy’s Law rights.
• Scope of impact statements at different phases:
  • McGuire v. Commonwealth, 368 S.W.3d 100 (Ky. 2012): Allowing non-statutory “victim” impact testimony during the guilt phase is error.
  • Sherroan v. Commonwealth, 142 S.W.3d 7 (Ky. 2004): At final sentencing, courts retain discretion to consider victim impact statements from others affected by the crime in addition to any designated victim.
• Content of victim impact testimony: KRS 532.055(2)(a)7 (truth-in-sentencing statute) allows description of physical, psychological, and financial harm.
  • Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012): Emotion in victim impact statements is expected and not error per se.
  • Johnson v. Commonwealth, 680 S.W.3d 814 (Ky. 2023): Religious references can be improper when used to call for particular punishments (e.g., biblical death penalty), but expressions of religious belief are generally permissible; uncharged conduct is out of bounds.
  • Hilton v. Commonwealth, 539 S.W.3d 1 (Ky. 2018): Victim sentencing recommendations are improper; nevertheless, multiple such recommendations were deemed harmless under the specific record in Hilton.
• Jail fee reimbursement: KRS 441.265(2)(a) requires the jailer to adopt a jail fee reimbursement policy approved by the county’s governing body before fees may be imposed; KRS 532.356 addresses enforcement mechanisms for financial obligations in criminal judgments.
  • Capstraw v. Commonwealth, 641 S.W.3d 148 (Ky. 2022): Evidence of a properly adopted policy must be presented at sentencing; absent such evidence, fees must be vacated.
  • Ford v. Commonwealth, 709 S.W.3d 203 (Ky. 2025): A county-to-county reimbursement agreement is not a jailer’s policy approved by the governing body. Remedy remains vacatur of fees—no remand to supplement the record.
  • Two unpublished Court of Appeals decisions (Frazier; Warren) had remanded in similar settings, but the Supreme Court reaffirmed vacatur-only and declined remand.
• Standard of review for unpreserved error: RCr 10.26 (palpable error).
  • Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) (quoting Graves v. Commonwealth): Relief requires manifest injustice—a substantial possibility that the outcome would have been different but for the error.
• Appellate citation rule: RAP 41(A)(3): Unpublished decisions may be cited only when no published decision adequately addresses the issue; copies must be provided. The Court admonished the Commonwealth for excessive reliance on unpublished cases where published authority exists.

Legal Reasoning

1) Who may speak at sentencing and what may be said

The Court began by differentiating constitutional and statutory rights from a judge’s inherent sentencing discretion. Under Ky. Const. § 26A and KRS 421.500(1)(a), a parent of a minor victim enjoys the victim’s rights (including the right to be heard) only if the court designates that parent as the victim’s representative. Relying on Robertson, the Court read “shall be designated by the court” to require an express designation. There was no such designation here; therefore, Daniel did not have a Marsy’s Law right to speak.

That did not end the matter, because the sentencing hearing is procedurally distinct from the guilt or penalty phases of a jury trial. Citing Sherroan, the Court emphasized that at final sentencing a judge may, in her discretion, hear and consider impact statements from other persons affected by the crime even if they do not qualify as “victims” under KRS 421.500. Permitting the victim’s father to speak at final sentencing was thus within the trial court’s discretion and not error.

Turning to content, the Court parsed two facets of Daniel’s statement:

• Religious condemnation and emotive language: The Court accepted religious expression—including references to hell and divine judgment—as permissible, aligning with Johnson and Elery. The remarks were not reasonably construed as urging a theologically grounded punishment by the court, and the father explicitly acknowledged that eternal judgment is not within the court’s power. Emotional intensity, even when coarse and vitriolic, did not convert this into error.
• Sentencing recommendation (“maximum years allowed”): The Court acknowledged this crossed the statutory line, applying Hilton’s core holding that recommendations of specific punishments by victims or their families are improper because KRS 532.055(2)(a)7 authorizes impact evidence of harm, not punishment advocacy. Yet, the error was unpreserved and not “palpable.” It was a single, unprompted comment addressed to a judge, not to a jury, and the record reflected that the judge considered a PSI, a sex-offender evaluation, the victim’s own statement, and defense support letters. Under the stringent RCr 10.26 standard, the Court could not conclude a manifest injustice or a substantial possibility of a different sentence absent the remark.

2) Jail fee reimbursement requires record proof of a duly adopted policy; remedy is vacatur, not remand

The sentencing court imposed jail fees without any record evidence that the jailer had promulgated a reimbursement policy approved by the county’s governing body as required by KRS 441.265(2)(a). The Commonwealth candidly conceded error but asked for a remand to present proof.

The Court rejected that request based on Capstraw and Ford. Capstraw announced a bright-line requirement: before jail fees can be imposed, “there must be some evidence presented” of a policy adopted by the jailer and approved by the county’s governing body. Ford held that inter-county reimbursement arrangements do not satisfy this requirement. In both cases, the Supreme Court vacated the fee assessments outright and did not remand to allow the Commonwealth to cure the deficiency. The Court followed that path again here, noting that while a pair of unpublished Court of Appeals decisions had remanded, the “overwhelming majority” approach in Supreme Court decisions is vacatur-only.

The Court’s reasoning has a practical edge: if a valid policy exists, there is “no excuse for evidence of such not to be in the record” at sentencing. Conversely, if no policy exists or has been approved, courts must accept that jail fees cannot be imposed in that case. This approach incentivizes proper pre-sentencing preparation and record-making.

Practical Impact and Guidance

Victim Impact Statements

• Designation matters for rights, not for judicial discretion: Parents or representatives of minor victims should be formally designated under KRS 421.500 if they wish to invoke Marsy’s Law rights. Nonetheless, trial courts retain discretion at final sentencing to hear from non-designated family members or others affected by the crime.
• Content boundaries persist: Emotive and religiously inflected statements will generally be allowed, but victim sentencing recommendations remain improper. Prosecutors and courts should pre-screen or admonish speakers to avoid recommending specific terms or lengths of incarceration.
• Preservation is critical: Defense counsel should timely object to any sentencing recommendation or references to uncharged conduct. Unpreserved claims face the demanding palpable error standard.
• Bench vs. jury: Improper content is more likely to be deemed harmless or non-palpable when addressed to a judge at final sentencing, compared to a jury during a penalty phase.

Jail Fee Reimbursement

• Evidence at sentencing is mandatory: To impose jail fees, the record must contain evidence that (a) the jailer adopted a reimbursement policy, and (b) the county’s governing body approved it (KRS 441.265(2)(a)). Suitable evidence typically includes a copy of the written policy and the approving resolution or meeting minutes.
• No second bite at the apple: If the record lacks the required proof, the fee assessment must be vacated. The Supreme Court has cemented vacatur-only as the default remedy; remand to supplement the record is disfavored.
• Prosecutorial and court checklists: County attorneys should include certified copies of the policy and county approval with sentencing submissions. Judges should confirm that documentary proof is in the record before imposing fees and should refrain from imposing fees if the proof is absent.

Appellate Practice

• Unpublished citations: The Court reiterated RAP 41(A)(3): cite unpublished decisions only when no published opinion adequately covers the point, and attach the full opinion. Over-reliance on unpublished authority risks admonition.

Complex Concepts Simplified

• Alford plea (North Carolina v. Alford): A plea allowing a defendant to accept conviction and sentencing while maintaining innocence, acknowledging that the Commonwealth’s evidence would likely persuade a fact-finder beyond a reasonable doubt.
• Marsy’s Law (Ky. Const. § 26A): A constitutional amendment granting victims certain rights, including the right to be heard at key stages. For minors, parents or representatives obtain those rights only upon court designation under KRS 421.500(1)(a).
• Victim impact statement: Testimony or a written statement describing the harm caused by the offense (physical, psychological, financial). It should not include recommendations for punishment.
• Palpable error (RCr 10.26): An unpreserved error that results in manifest injustice. Relief is limited to cases where there is a substantial possibility of a different result but for the error.
• Jail fee reimbursement (KRS 441.265): A statute authorizing recovery of incarceration costs from convicted defendants, but only if the jailer has adopted, and the county governing body has approved, a reimbursement policy. Proof of that policy must be in the sentencing record.
• Vacatur vs. remand: Vacatur nullifies the challenged portion of the judgment (here, jail fees). Remand sends the case back to develop more evidence or take further action. The Court here reaffirms vacatur-only for improper jail fee assessments.

Conclusion

Although unpublished and non-precedential, this decision provides clear, practice-focused guidance. First, at final sentencing a trial court may, in its discretion, permit non-designated family members to deliver impact statements. Emotional and religious expressions are generally permissible, but victim sentencing recommendations remain improper; absent preservation and a showing of manifest injustice, such missteps will rarely warrant relief when addressed to the judge.

Second, the Court emphatically reaffirms that jail fees cannot be imposed without record evidence of a duly adopted and approved reimbursement policy under KRS 441.265(2)(a). The remedy for noncompliance is vacatur of the fee assessment, not a remand to shore up the proof. This positions Kentucky sentencing practice on a straightforward footing: bring the policy proof to sentencing or forgo jail fees.

Finally, the Court’s reminder about RAP 41(A)(3) underscores that litigants should ground their arguments in published authority whenever available. The overarching takeaways are practical: prepare the sentencing record meticulously, keep victim impact content within the statutory boundaries, and preserve objections to protect issues for appellate review.