GENARO HERRERA HERNANDEZ V. COMMONWEALTH OF KENTUCKY

Supreme Court of Kentucky

Genaro Herrera Hernandez, an indigent criminal defendant from

Guatemala, struck a motorcyclist and passenger with his vehicle while he was

intoxicated, killing the driver and injuring the passenger. On September 25,

2015, he entered unconditional guilty pleas to manslaughter in the second

degree, assault in the first degree and misdemeanor offenses, and received a

ten-year sentence. On March 7, 2016, Hernandez filed a notice of appeal from

the trial court’s February 4, 2016, order which declined to amend its previous

August 5, 2015, order approving a reduced fee submitted by a Spanish

interpreter for services rendered in Hernandez’s defense. On appeal,

Hernandez argued that the trial court abused its discretion by not authorizing

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payment of the full amount of the interpreter’s invoiced bill. Ultimately, the

Court of Appeals granted the Commonwealth’s motion to dismiss the appeal,

on grounds that the appeal was not timely filed and an indispensable party (the

interpreter) was not named in the notice of appeal. We affirm the Court of

Appeals’ determination that the appeal was untimely filed, and thus need not

reach the indispensable party issue.

I. Factual and Procedural Background.

Prior to pleading guilty, Hernandez was appointed a public defender and

sought to suppress statements he made during a police interview. He received

permission from the trial court to retain the services of a Spanish-language

interpreter, Ilse Apestequi, for out-of-court interpretive services. The court’s

order authorized payment on proof of “all reasonable fees for out-of-court

interpretive services incurred by the defendant . . . up to $5,000.” The trial

court approved the interpreter’s first bill for $777, and the third bill for

$339.43. However, the trial court questioned the interpreter’s second bill for

$2,520, which represented charges for interpretation and written translation of

Hernandez’s audiotaped interview with police which lasted a total of 69

minutes. The court found the amount of this invoice to be unreasonable and

unnecessary and reduced it to $1,200 by order entered August 5, 2015.

Seven weeks later, on September 25, 2015, Hernandez entered

unconditional guilty pleas to manslaughter in the second degree, assault in the

first degree and misdemeanor offenses; waived filing of the Presentence

Investigation Report; was sentenced; and final judgment was entered that day.

On October 12, 2015 - 17 days after entry of the final judgment - Hernandez

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tendered a Motion for Reconsideration of Expert Witness Fees and requested an

ex parte hearing to address the trial court’s reduction of the interpreter’s fees

from $2,520 to $1,200. The trial court agreed to reconsider the fee request,

but ultimately declined to approve additional funds, setting forth its reasons in

an order entered February 4, 2016, which the court designated as final and

appealable.1 On March 7, 2016, Hernandez filed a notice of appeal from that

order, claiming the trial court abused its discretion by only approving a

reduced fee for the interpreter. Following the Court of Appeals’ dismissal of the

appeal on procedural grounds, this Court granted Hernandez’s petition for

discretionary review.

II. Analysis.

On September 25, 2015, when Hernandez’s final judgment was entered,

all matters in his case, including the trial court’s August 5, 2015, order

approving a reduced fee for the interpreter, became final. At that point,

Hernandez could have filed a motion to alter, amend or vacate the final

judgment, or filed a timely notice of appeal, if he wished for the trial court, or

an appellate body, to further address the issue of the interpreter’s fees. He did

neither.

Instead, he waited until October 12, 2015 to file a Motion for

Reconsideration of Expert Witness Fees. However, the trial court lost

jurisdiction of this case on October 5, 2015 - ten days after entry of the final



1 The trial court’s February 4, 2016, Order states that “defendant has not

provided the Court with any authority that this Order is final and appealable for

himself, the Office of the Public Defender, the Interpreter, and/or the Finance Cabinet.

However, to allow further review of the issues by an appellate body, the Court will

designate this Order as final and appealable. Defendant is once again free to proceed

in forma pauperis, here and on appeal.”

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judgment - because no motion to alter, amend or vacate was filed.

Commonwealth v. Steadman, 411 S.W.3d 717, 721 (Ky. 2013). As a result,

Hernandez’s October 12, 2015, motion and the trial court’s subsequent orders

were null and void, as the trial court lacked jurisdiction to consider any

additional motions or issue any further orders after the 10 days had passed to

alter, amend or vacate the final judgment.

Because the trial court lacked jurisdiction to issue the February 4, 2016,

order, Hernandez’s notice of appeal from that order was inconsequential. Had

Hernandez wished to appeal the trial court’s decision to approve a reduced fee

for the interpreter, he would have had to file a notice of appeal within 30 days

from entry of the September 25, 2015, final judgment, although whether his

appeal would have proceeded is debatable. See Windsor v. Commonwealth, 250

S.W.3d 306, 307 (Ky. 2008) (holding that an unconditional guilty plea waives

the right to appeal with limited exceptions including “competency to plead

guilty; whether the plea complied with the requirements of Boykin v. Alabama,

395 U.S. 238, 244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); subject matter

jurisdiction and failure to charge a public offense; and sentencing issues[]”

(footnotes omitted)).

Unconditional guilty pleas aside,

except in limited circumstances . . . an appeal to the Court of

Appeals is allowed only from a circuit court’s final order or

judgment. See KRS[2] 22A.020(1) (allowing appeal of “conviction,

final judgment, order, or decree in any case in Circuit Court”). . . .

A final order or judgment is one “adjudicating all the rights of all

the parties in an action or proceeding, or a judgment made final



2 Kentucky Revised Statutes.

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under Rule 54.02.” CR[3] 54.01. In a criminal case, this is

ordinarily the judgment of conviction and sentence, or a similarly

named document.

. . . Thus, to comply with the rules, a notice of appeal must

identify the final order or judgment being appealed; naming

another type of order, such as an interlocutory or post-trial order,

is insufficient.

Cassetty v. Commonwealth, 495 S.W.3d 129, 131–32 (Ky. 2016).

RCr4 12.04(3) provides that “[t]he time within which an appeal may be

taken shall be thirty (30) days after the date of entry of the judgment or order

from which it is taken[.]” Therefore, procedurally, Hernandez’s failure to file a

notice of appeal within 30 days of the September 25, 2015, final judgment was

fatal. See Cassetty, 495 S.W.3d at 132 (holding that while the doctrine of

substantial compliance applies with respect to some notice-of-appeal errors,

dismissal is strictly required for failure to timely file the notice of appeal) (citing

Ready v. Jamison, 705 S.W.2d 479, 481 (Ky. 1986) (discussing the amended

CR 73.02)). Accordingly, the Court of Appeals properly dismissed Hernandez’s

appeal as untimely.

For the foregoing reasons, the Court of Appeals’ opinion is affirmed.