Miller v. Commonwealth, 2013 Ky. LEXIS 10

Appellant John Miller sexually abused his minor stepdaughters M.P. and C.P.; evidence included a porn magazine and a photo of Miller with his wife.
M.P. and C.P. reported abuse by multiple actors; a police search of Miller’s home yielded photographic evidence but no nude photos of the girls.
Miller was indicted on hundreds of counts but the trial proceeded on a subset: several rape, sodomy, incest, and sexual-abuse counts.
Jury ultimately convicted Miller on multiple counts; sentences ran consecutively for 70 years in prison.
On appeal, Miller challenged prosecutorial conduct, a potential ex post facto/due process sentencing issue, and the assessment of costs and fees.
The Court affirmed most convictions, but remanded for resentencing on MP-incest counts and vacated all costs and fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct	Miller claims the Commonwealth’s questioning was improper and prejudicial.	Commonwealth contends errors were non-palpable or harmless; trial evidence supported the verdict.	No palpable error; prosecutorial conduct did not render trial unfair.
Ex post facto/due process in sentencing for MP	Statutory amendment changing incest penalties created retroactive consequences for MP counts.	Application of amended statute implicated due process, not classic ex post facto; no palpable error.	Due process violation with palpable error; remand for resentencing on MP incest counts to align with pre-amendment elements.
Correct penalty range for incest counts	Jury instructions did not require age-based element for Class B incest; potential excess sentencing.	Some elements were proven; harmless-error analysis applies where age element was implicit.	Conviction for MP incest remains Class B; on CP incest, harmless error found; resentencing ordered for MP counts with correct classification.
Court costs and partial public-defender fee	Imposition of costs/fees when Miller was indigent/poor was improper and reviewable after release.	Costs and fees may be assessed; jurisdiction to review can extend beyond judgment.	Costs and partial fee vacated; poor-person status at sentencing dictates lack of costs; remand not required for costs reconsideration.

Duncan v. Commonwealth, 322 S.W.3d 81 (Ky. 2010) (prosecutorial conduct and evidentiary issues; standard for palpable error)
Berger v. United States, 295 U.S. 78 (1935) (prosecutor's duties to seek justice, not merely win)
Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky. 2005) (duty of prosecutor to fair and impartial proceedings)
Caudill v. Commonwealth, 374 S.W.3d 301 (Ky. 2012) (due process limits on prosecutorial conduct)
Colder v. Bull, 3 U.S. (3 Dali.) 386 (1798) (ex post facto concept includes punishment increases)
Marcus v. United States, 560 U.S. 258 (2010) (retroactive judicial application and due process concerns; course-of-conduct vs. act-based statutes)
Weaver v. Graham, 450 U.S. 24 (1981) (retrospective effect and due process considerations)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (elements-and-penalties must be proven beyond a reasonable doubt)
United States v. Gaudin, 515 U.S. 506 (1995) (jury determination of all elements and law as applied to facts)
Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard for missing elements)
Buster v. Commonwealth, 381 S.W.3d 294 (Ky. 2012) (poor-person determination and costs/fees framework)