Opinion
NO. 2013-CA-001369-MR
04-29-2016
JAMES DAVID ADKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James D. Adkins, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 06-CR-00051 OPINION
VACATING AND REMANDING BEFORE: COMBS, J. LAMBERT, AND VANMETER, JUDGES. COMBS, JUDGE: James David Adkins appeals the order of the Ohio Circuit Court denying his motion to vacate an order which modified a custody credit applied to his sentence. After our review, we vacate and remand.
On January 22, 2009, Adkins pled guilty to two counts of unlawful transaction with a minor in the second degree and two counts of first-degree unlawful transaction with a minor less than sixteen years of age. He received a total sentence of fifteen-years' incarceration. The order of final sentence, which was entered on March 2, 2009, included a custody credit of 344 days already served.
On May 10, 2010, the trial court entered an order modifying and reducing the jail credit to 276 days - a differential of sixty-eight days. The order recited that it was entered in response to a documentation of custody time credit which had been provided by the Department of Corrections (DOC). The DOC had recalculated Adkins's custody credit time and determined that his final figure incorrectly credited sixty-eight days more than the number of days to which he was actually entitled.
Adkins filed a motion to vacate the order of May 10, which the court denied on June 19, 2013. Adkins then filed an appeal on August 1, 2013. We held his appeal in abeyance, awaiting the outcome of Bowling v. White, 480 S.W.3d 911 (Ky. 2016). We have recently removed this case from abeyance upon the release of Bowling.
Adkins now claims that the trial court erred when it modified his custody credit. The propriety of the modification is a question of law; thus our review is de novo. Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky. 2011).
The question before us is whether the 2010 reduction of credit was permissible. The award of custody credit for time already spent in custody is governed by KRS 532.120(3). Adkins was sentenced in 2009. At that time, the authority to determine the amount of custody credit was vested in the court: "[t]ime spent in custody prior to the commencement of a sentence . . . shall be credited by the court . . . ."
Kentucky Revised Statutes (KRS).
KRS 532.120(3) was amended in 2011 to vest the authority in the Department of Corrections. However, our analysis must be based on the statute as it existed in 2009.
The Supreme Court has recently held that "where a trial court mistakenly awarded too much credit when acting under the prior version of KRS 532.120(3)," resolution is controlled by Bard v. Commonwealth, 359 S.W.3d 1 (Ky. 2011). Bowling v. White, 480 S.W.3d at 918. Bard precisely governs this case.
Other law controls instances in which the defendant received less custody credit than he was due. However, that discussion is not relevant for purposes of this opinion.
At the time of his sentencing, Bard was given a custody credit of 3,086 days. Six years later, the DOC determined that Bard had served out his sentence and released him to a mental health facility. Soon after, the DOC determined that Bard's custody credit had been miscalculated and concluded that he should have received only 1,449 days of credit. Through the Division of Parole and Probation, the DOC submitted an amended time credit form to the trial court for approval. The trial court signed the amended time form and entered it into the record. Bard was then reincarcerated.
The Bard court regarded this process as a unilateral amendment by the DOC, a procedure which was contrary to KRS 532.120(3). According to Bard, the trial court alone had the authority to determine the custody credit; the DOC's role was merely advisory. Bard, 359 S.W.3d at 5. Therefore, the DOC's "attempt to [modify the custody credit time] was an invalid usurpation of the power expressly granted to the trial court by KRS 532.120(3)." Id. at 5-6.
The same circumstances are at issue here. The only distinction is that in the case before us, instead of merely signing a form provided by the DOC, the court approved the submitted form in an order entered sua sponte. The trial court's order recited that it had "received a Documentation Custody Time Credit . . . stating that the correct jail credit should have been Two Hundred Seventy-Six (276) days." It then ordered the modification without naming any other grounds.
Also governing our decision in this case is the fact that the Bard court held that the trial court lacked authority to change the custody credit. A trial court's jurisdiction lasts only ten days following entry of judgment. CR 59.05. A judgment can be amended according to RCr 10.10 or CR 60.02. However, neither rule may be invoked to correct judicial errors. Id. at 7. Error in the award of custody credit is "clear[ly] and unambiguous[ly]" judicial error. Winstead v. Commonwealth, 327 S.W.3d 479, 486 (Ky. 2010) (citing Viers v. Commonwealth, 52 S.W.3d 527 (Ky. 2001)). Thus, these rules provide no recourse for correction of such an error.
Kentucky Rules of Civil Procedure (CR).
Kentucky Rules of Criminal Procedure (RCr). --------
The Supreme Court most recently acknowledged that "a mistaken award of too much credit must be corrected the same way any erroneous judgment is to be corrected; e.g., through an appeal or, if appropriate, a collateral attack." Bowling v. White, 480 S.W.3d at 918. Yet, the Supreme Court has specifically ruled out post-conviction attacks by way of RCr 10.10, RCr 11.42, or CR 60.02. Bard, 359 S.W.3d at 6-7. It declined to "issue an advisory opinion concerning what, if anything, either a defendant or the Commonwealth properly could file after the time for filing a direct appeal has expired in order to seek to amend an allegedly improper award of jail-time credit." Winstead, 327 S.W.3d at 491 fn 42.
The current state of the law appears to be that the original award of custody credit must stand -- to the benefit of the convicted. Bowling, supra; Bard, 359 S.W.3d at 7. We have no further guidance from our Supreme Court or from statutory law to fill this apparent gap in the law.
We are compelled to vacate the order of the Ohio Circuit Court and remand for reinstatement of the final judgment of sentencing which was entered on March 2, 2009, with its inclusion of a custody credit of 344 days served.
ALL CONCUR. BRIEF FOR APPELLANT: James D. Adkins, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky