Opinion
NO. 2011-CA-001861-MR
03-08-2013
STEVEN T. FREY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven T. Frey, pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 09-CR-00310
OPINION
AFFIRMING
BEFORE: COMBS, KELLER AND LAMBERT, JUDGES. KELLER, JUDGE: Steven T. Frey (Frey) appeals pro se from an order of the Daviess Circuit Court denying his motion for jail-time credit. For the following reasons, we affirm.
FACTS
On June 2, 2009, a Daviess County Grand Jury indicted Frey for one count of assault in the first degree. On June 24, 2009, the trial court entered an order granting Frey's motion for bond reduction with the condition that Frey attend the R.C.D. (Residential Chemical Dependency) in-house recovery program, that he complete and comply with any treatment recommendation of the program, and that he comply with any and all aftercare. Although Frey successfully graduated from the R.C.D. program, he failed to complete the in-house long term aftercare program with Boulware Mission. As a result, the trial court entered an order revoking Frey's pre-trial release.
On June 30, 2010, Frey pled guilty to the first-degree assault charge. The trial court subsequently entered a judgment on July 27, 2010, sentencing Frey to 10 years' imprisonment. In that judgment, the trial court awarded Frey 207 days of jail-time credit for time spent in custody prior to trial. Frey did not appeal his conviction, sentence, or the trial court's jail-time credit determination.
On June 22, 2011, Frey filed a motion for jail-time credit arguing that he was entitled to credit for the time he spent at R.C.D. and Boulware Mission pursuant to the trial court's order permitting pre-trial release. The trial court denied Frey's motion in an order entered on July 5, 2011. Frey did not appeal from that order. On September 15, 2011, Frey filed another motion for jail-time credit arguing again that he was entitled to credit for the time he spent at R.C.D. and Boulware Mission. The trial court denied Frey's motion in an order entered on September 16, 2011. It is from this order that Frey appeals.
ANALYSIS
On appeal, Frey argues that the trial court erred by denying his motion for jail-time credit pursuant to Kentucky Revised Statute (KRS) 532.120. Specifically, Frey argues that he is entitled to jail-time credit for the time he spent in residential treatment programs pursuant to the trial court's order permitting pre-trial release.
In Winstead v. Commonwealth, 327 S.W.3d 479 (Ky. 2010), the Supreme Court of Kentucky concluded that there are three ways to challenge a trial court's calculation of jail-time credit. First, Frey could have filed a timely direct appeal. Second, pursuant to Kentucky Rule of Civil Procedure (CR) 59.05, Frey could have filed a motion to alter, amend or vacate the judgment within 10 days after it became final. Third, Frey could have filed a motion pursuant to Kentucky Rule of Criminal Procedure (RCr) 10.10, which permits a trial court to correct a clerical error "at any time on its own initiative or on the motion of any party . . . ." Id. at 485-86.
Because Frey failed to file a timely direct appeal or a CR 59.05 motion, we only address whether the trial court's calculation of Frey's jail-time credit was a clerical error, subject to review under RCr 10.10. As set forth in Winstead:
[T]he question of whether an error is "judicial" or "clerical" turns on whether the amended judgment embodies the trial court's oral judgment as expressed in the record. If it does, then the error is clerical in that the amended judgment either corrects language that is inconsistent with the oral judgment, or supplies language that was inadvertently omitted from the oral judgment. But if it does not, then the error must be judicial.Id. at 486 (quoting Viers v. Commonwealth, 52 S.W.3d 527, 529 (Ky. 2001)).
In Winstead, the Court held that the error in the calculation in jail-time credit was judicial, not clerical, because the written judgment matched the trial court's oral pronouncement. Id. In the present case, there is no question that the alleged error is judicial because the circuit court's written judgment matched its oral pronouncement at sentencing. Thus, review under RCr 10.10 is not available to Frey.
Because Frey has not and cannot avail himself of any of the available forms of relief, the circuit court properly denied his motion.
CONCLUSION
For the foregoing reasons, we affirm the order of the Daviess Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Steven T. Frey, pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky