LUIS VELASQUEZ v. F. KENNETH CONLIFFE, JUDGE JEFFERSON CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY
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RENDERED: June 11, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000732-OA
LUIS VELASQUEZ
PETITIONER
AN ORIGINAL ACTION
REGARDING JEFFERSON CIRCUIT COURT
ACTION NO. 03-CR-003421
v.
F. KENNETH CONLIFFE, JUDGE
JEFFERSON CIRCUIT COURT
RESPONDENT
AND
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
OPINION AND ORDER
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Luis Velasquez (petitioner) has filed a petition
for relief, considered by this Court as a petition for writ of
mandamus, asking this Court to issue a writ of mandamus ordering
Jefferson Circuit Court Judge F. Kenneth Conliffe (respondent)
to authorize petitioner to hire a Spanish language interpreter
for out-out-court defense preparation.
Petitioner further
contends that the respondent should authorize payment for this
interpreter from the fund created by KRS1 31.185(3).
The
Commonwealth has no objection to the petition for relief.
Petitioner is charged in Jefferson Circuit Court with
two counts of first-degree assault and one count of operating
under the influence of intoxicants.
Petitioner, an indigent,
can only speak and understand the Spanish language, thus
necessitating the assistance of an interpreter during previous
in-court proceedings.
After petitioner’s arraignment in circuit
court on January 5, 2004, petitioner’s counsel requested
authorization from the respondent to retain the services of a
Spanish language interpreter for out-of-court defense
preparation.
Respondent eventually denied petitioner’s request.
On February 6, 2004, petitioner’s counsel filed a
motion for authorization to retain the services of an
interpreter for out-of-court defense preparation.
In this
motion, petitioner requested respondent to authorize the
retention of the interpreter, with payment for the interpreter’s
services, in the amount of thirty dollars ($30.00) per hour not
to exceed two thousand dollars ($2,000.00), to be made out of
the fund established by KRS 31.185(4).
In an order dated
February 12, 2004, respondent denied petitioner’s motion after
determining that “private [interpreter] services in the amount
requested by the Defense Counsel are not necessary, and if they
1
Kentucky Revised Statutes.
-2-
are, the amount requested is excessive.”
Respondent also held
that petitioner’s request for a Spanish language interpreter
does not fall under the purview of KRS 31.185(4).
Petitioner’s
motion to reconsider was denied by the circuit court.
This
original action followed.
In his petition, petitioner asserts that the
respondent erred by denying his request to authorize the
retention of a Spanish language interpreter for out-of-court
defense preparation, with payment for the services of this
interpreter coming from the fund established by KRS 31.185(4).
We believe that petitioner’s assertion is correct.
KRS 31.185(3) and (4) provide as follows:
(3) Any direct expense, including the cost
of a transcript or bystander's bill of
exceptions or other substitute for a
transcript that is necessarily incurred in
representing a needy person under this
chapter, is a charge against the county,
urban-county, charter county, or
consolidated local government on behalf of
which the service is performed and shall be
paid from the special account established in
subsection (4) of this section and in
accordance with procedures provided in
subsection (5) of this section. However,
such a charge shall not exceed the
established rate charged by the Commonwealth
and its agencies.
(4) The consolidated local government,
fiscal court of each county, or legislative
body of an urban-county government shall
annually appropriate twelve and a half cents
($0.125) per capita of the population of the
county, as determined by the Council of
-3-
Local Governments' most recent population
statistics, to a special account to be
administered by the Finance and
Administration Cabinet to pay court orders
entered against counties pursuant to
subsection (1) or (3) of this section. The
funds in this account shall not lapse and
shall remain in the special account.
In McCracken County Fiscal Court v. Graves,2 our
Supreme Court explicitly defined the circuit court’s
responsibility in determining what expenses are reasonable and
necessary so as to give effect to the overall purpose of KRS
Chapter 31.
The Supreme Court first examined KRS Chapter 31 to
determine exactly who is an indigent defendant, to what an
indigent defendant is entitled and who must pay for the expenses
incurred by an indigent defendant.
In analyzing the purpose and
application of KRS Chapter 31, the Supreme Court stated as
follows:
Within the scheme set up by our General
Assembly, a "needy" or an "indigent"
defendant is "a person who at the time his
need is determined is unable to provide for
the payment of an attorney and all other
necessary expenses of representation." KRS
31.100(3). An indigent defendant having been
formally charged of a serious crime is
entitled: "(a) [t]o be represented by an
attorney to the same extent as a person
having his own counsel is so entitled; and
(b) [t]o be provided with the necessary
services and facilities of representation
including investigation and other
preparation." KRS 31.110(1). Now, who must
pay? For the answer, we look back to the
2
Ky., 885 S.W.2d 307, 309 (1994).
-4-
statutes.
The language of KRS 31.185, supra, is
directly on point and cannot be ignored.
"When the words of the statute are clear and
unambiguous and express the legislative
intent, there is no room for construction or
interpretation and the statute must be given
its effect as written." Lincoln County
Fiscal Court v. Department of Public
Advocacy, Ky., 794 S.W.2d 162, 163 (1990),
citing with approval Griffin v. City of
Bowling Green, Ky., 458 S.W.2d 456 (1970).3
KRS 31.100(2) provides further support for our
determination that petitioner is entitled to the services of a
Spanish language interpreter to be paid out of the fund
established by KRS 31.185(4).
KRS 31.100(2) defines expenses
covered for indigent criminal defendants as including “the
expenses of investigation, other preparation, and trial,
together with the expenses of any appeal.”
Accordingly, it is
clear to us that petitioner, as an indigent defendant charged
with a crime, is entitled to the services of a Spanish language
interpreter to be paid from the funds established by KRS
31.185(4).
Our decision herein is consistent with the
determination of our Supreme Court that “[u]nless the law
expressly directs otherwise, it is the county government, not
the state Department of Public Advocacy, which bears liability
3
Id.
-5-
for court-authorized expenses incurred in the representation of
an indigent defendant.”4
Furthermore, Respondent also concluded that the amount
requested by petitioner for translator services was excessive
and “[f]or the purpose described in the matter the Defense
Counsel should be able to contract for this service for no more
than $15 with a minimum charge of $30.”
Petitioner presented
evidence that the translators who provide in-court translation
for the Administrative Office of the Courts charge $30.00 per
hour.
Likewise, the Office of Probation and Parole pays the
same rate for interpreter services.
There was no evidence that
a qualified interpreter would be available to assist Petitioner
and his counsel in trial preparation at a rate of less than
$30.00 per hour.
Accordingly, Respondent’s conclusion to the
contrary was unsupported by any evidence and was therefore
arbitrary.
Thus, having considered petitioner’s petition for
relief, considered by this Court as a petition for writ of
mandamus, and being otherwise advised, this Court ORDERS that
this petition be, and it is hereby, GRANTED.
Pursuant to the
Kentucky Supreme Court’s directive of McCracken County Fiscal
Court v. Graves, respondent is ORDERED to enter an order
authorizing payment from the fund described in KRS 31.185 for
4
Id., at 309.
-6-
the limited purpose of retaining a Spanish language interpreter
to assist petitioner with out-of-court defense preparation.
Respondent shall enter the order as described herein on or
before twenty (20) days from the date of entry of this order.
ENTERED: __June 11, 2004
__/s/ Wm. L. Knopf_____
JUDGE, COURT OF APPEALS
Petition By:
Michael G. Daugherty
Frank W. Heft, Jr.
Louisville Metro Public Defender
Co-counsel for Petitioner
Daniel T. Goyette
Louisville Metro Public Defender
Of counsel for Petitioner
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