Opinion
NO. 2013-CA-000217-MR
03-21-2014
DAVID ERWIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Margaret Anne Ivie Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Nate Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 09-CR-01053
OPINION
VACATING AND REMANDING
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: David Erwin brings this appeal from a January 15, 2013, Opinion and Order of the Fayette Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 and Kentucky Rules of Criminal Procedure (RCr) 11.42 motions to vacate and amend judgment. For the reasons stated, we vacate and remand.
In 2009 and 2010, appellant was indicted by a Fayette County Grand Jury upon sundry offenses. The indictments included charges arising from appellant entering his ex-girlfriend's home through a basement window and viciously stabbing her and a friend several times in 2009. Relevant to disposition of this appeal, appellant was originally indicted upon the following counts:
Count 1:Pursuant to a plea agreement with the Commonwealth, appellant pleaded guilty to, inter alia, first-degree burglary and two counts of first-degree assault under extreme emotional disturbance. By final judgment entered April 12, 2011, appellant was sentenced to a total of twenty-one-years' imprisonment on a total of five counts arising from both indictments.
On or about the 10th day of May 2009, in Fayette County, Kentucky, the above named Defendant committed the offense of Burglary First Degree when he knowingly entered and/or remained in a residence, and while in the building, was armed with a knife and/or he caused physical injury to A.S. and J.S. therein;
Count 2:
On or about the 10th day of May 2009, in Fayette County, Kentucky, the above named Defendant committed the offense of Assault First Degree when he caused serious physical injury to A.S., by means of a knife and/or other dangerous instrument;
Count 3:
On or about the 10th day of May 2009, in Fayette County, Kentucky, the above named Defendant committed the offense of Assault First Degree when he caused serious physical injury to J.S., by means of a knife and/or other dangerous instrument[.]
Subsequently, on August 24, 2011, the Commonwealth filed a motion to clarify judgment. Therein, the Commonwealth moved the court to "clarify" that the offense of first-degree burglary constituted a "violent offense" that subjected appellant to the violent offender parole eligibility requirements of Kentucky Revised Statutes (KRS) 439.3401(1)(c). By amended judgment entered August 24, 2011, the circuit court granted the motion and amended the final judgment to reflect that the first-degree burglary offense constituted a "violent offense." No direct appeal was taken from the amended judgment.
Appellant then filed an RCr 11.42 motion and a CR 60.02 motion seeking to vacate the amended judgment. Appellant argued that the circuit court lacked jurisdiction to amend its final judgment as more than ten days had passed since its entry. Moreover, appellant maintained that he should not be considered a violent offender for parole eligibility under KRS 439.3401. By Opinion and Order entered January 15, 2013, the circuit court denied appellant's RCr 11.42 motion and CR 60.02 motion. This appeal follows.
Appellant contends that the circuit court erred by denying his RCr 11.42 motion and CR 60.02 motion. Appellant asserts that he cannot be classified as a violent offender under KRS 439.3401 and that the circuit court was without jurisdiction to render the amended judgment. Our analysis of appellant's assertions of error begins with KRS 439.3401.
KRS 439.3401 provides, in relevant part:
(1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:
. . . .
(c) A Class B felony involving the death of the victim or serious physical injury to a victim[.]
. . . .
The court shall designate in its judgment if the victim suffered death or serious physical injury.
Under KRS 439.3401(1)(c), a violent offender is a defendant convicted of a Class B felony and who in the commission of said felony caused death or serious injury to the victim. However, KRS 439.3401 plainly mandates the circuit court specifically "designate in its judgment if the victim suffered death or serious physical injury." Without such designation, we do not believe that a defendant may be classified as a violent offender under KRS 439.3401(1)(c). We view KRS 439.3401(1)(c) as plain and unambiguous. Thus, to be classified as a violent offender under KRS 439.3401(1)(c), the circuit court must designate in its judgment that the victim suffered death or serious physical injury during commission of the Class B felony.
In this case, it is uncontroverted that appellant was convicted of a Class B felony (first-degree burglary), and the indictment plainly averred that the victim suffered serious physical injury. Moreover, in the guilty plea colloquy, the circuit court directly informed appellant that first-degree burglary was a Class B felony and was a violent offense for parole eligibility considerations. From the record, it is clear that appellant's guilty plea to first-degree burglary potentially fulfilled the mandates of KRS 439.3401(1)(c). Nevertheless, the circuit court failed to designate in the final judgment that appellant caused serious physical injury to the victims while committing first-degree robbery.
In an attempt to add the serious physical injury designation to the final judgment, the Commonwealth filed a motion to clarify and requested the court to add the required designation under KRS 439.3401(1). As a result, the circuit court rendered an amended judgment; therein, the court directly stated that "the Judgment shall be amended to reflect that the Burglary First Degree offense is a violent offense."
As this amended judgment was entered well over ten days after entry of the final judgment, appellant argues that the circuit court lacked jurisdiction to render same. The Commonwealth counters that the circuit court's designation of burglary in the first degree as a "violent offense" was merely a correction of a clerical mistake in the final judgment; thus, the circuit court possessed jurisdiction to do so per RCr 10.10.
RCr 10.10 reads:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
Our case law firmly establishes that a court possesses ongoing jurisdiction to correct a clerical error in a previously entered judgment or order. See Fagan v. Com., 374 S.W.3d 274 (2012). It must be emphasized that a clerical error "is an error in the entry or recording of a judgment; it is a mistake or omission that prevents the judgment as entered from accurately reflecting the judgment that was rendered." 46 Am. Jur. 2d Judgments § 139 (2013) (citations omitted). When the court corrects a clerical error, the written judgment is merely modified to accurately reflect the judgment actually rendered by the court. Fagan, 374 S.W.3d 274. But, a clerical error must be distinguished from a "judicial error." Id. at 279.
A judicial error is the result of the exercise of judicial function and includes "[r]endering a judgment based on incomplete or inaccurate information." Id. at 279 (footnote omitted). While a clerical error is amenable to correction under RCr 10.01, a judicial error is not. To determine if the error is clerical or judicial, the relevant inquiry is whether the written judgment accurately memorializes the judgment as intended by the court at the time it was rendered. Thus, the pivotal time period is when the circuit court renders the judgment and memorizes it in written form. If the written judgment accurately reflects the intended judgment of the court at such time, the error was judicial; however, if the written judgment fails to accurately reflect the judgment intended by the court at that time, the error is clerical. Machniak v. Com., 351 S.W.3d 648 (Ky. 2011).
In the January 15, 2013, Opinion and Order, the circuit court concluded:
[Appellant] pled guilty to Burglary First Degree, along with two amended counts of Assault First Degree under EED [Extreme Emotional Disturbance]. [Appellant]is correct that the Assault convictions do not make the Burglary conviction a "violent offense" under subsection (j) of KRS 439.3401(1). That subsection does not designate an offense as violent by using an underlying conviction for Assault First Degree under EED.
The Burglary First Degree conviction is a violent offense, however, under subsection (c) of KRS 439.3401(1), because it is a Class B felony involving serious physical injury to a victim. Although neither the April 12, 2011[,] Final Judgment nor the August 24, 2011[,] Amended Judgment expressly indicated that Ms. Sullivan or Mr. Sachs suffered serious physical injuries, the record clearly shows that they did. . . .
There were several other indicators that [Appellant] knew he was pleading guilty to a violent offense. [Appellant] was informed numerous times during his guilty plea hearing that Burglary First Degree was a violent offense. See Guilty Plea Hearing, Tape No. 22/9/11 CD 37-3, at 10:12 (Mar. 8, 2011). During its colloquy with [Appellant], the Court noted that the Burglary First Degree charge was a Class B felony carrying a penalty of ten to twenty years in prison, and that "it also falls into the category of being a violent offense, so there's a mandatory service of eighty-five percent (85%)." Id. at 10:12. The Court then asked, "Do you understand that?" and [Appellant] responded, "Yes." Id. The Court questioned [Appellant] about the circumstances of the Assault First Degree under EED charges, including whether he caused serious physical injury to the victims, and [Appellant] responded in the affirmative. See id. at 10:15. The Court noted that Ms. Sullivan was "one-half inch away from being killed," due to the positioning of the knife. See Sentencing Hearing, Tape No. 22/9/11 CD 54, at 13:25 (Apr. 11, 2011).
[Appellant] also conceded in his petition that the victims suffered serious physical injuries. See Defendant's CR 60.02 Petition, at 6 (Feb. 17, 2012).
[Appellant] became a violent offender pursuant to the statute as soon as he pled guilty in this case, despite whatever language the final judgment may have omitted. See Benet v. Commonwealth, 253 S.W.3d 528, 533 (Ky. 2008). The August 24, 2011[,] Amended Judgment was merely a clarification of [Appellant's] violent offender status. An express designation of such status was not required in either judgment, but was simply intended to clarify the parole eligibility threshold for the Department of Corrections. The Court finds that any error that took place was mere clerical error, which was properly amended pursuant to RCr 10.10.
From review of the Opinion and Order, it is evident that the circuit court focused upon whether appellant knew that the first-degree burglary was a "violent offense" per KRS 439.3401. This was error. Under RCr 10.10, the circuit court should have focused upon whether the circuit court intended to include the serious physical injury designation in its final judgment and the designation was mistakenly omitted through inadvertence. In sum, to constitute a clerical error, it is essential that the circuit court intended to include the serious physical injury designation in the final judgment at the time the court rendered same.
Accordingly, we vacate the circuit court's Opinion and Order and remand this matter. Upon remand, the circuit court shall reconsider its decision and specifically address whether: (1) it intended to include the serious physical injury designation as required by KRS 439.3401(1)(c) in the final judgment at the time it was rendered, and (2) the omission of serious physical injury designation in the final judgment was due to mistake or inadvertence. If the circuit court determines both inquiries in the affirmative, the omission of the serious physical injury designation constitutes a clerical error in the final judgment per RCr 10.10, and the circuit court possessed jurisdiction to render the amended judgment correcting such clerical error. However, if the circuit court determines either of the above inquiries in the negative, the omission of the serious physical injury designation was a judicial error not subject to correction under RCr 10.10, whereupon the circuit court lacked jurisdiction to render the amended judgment.
For the foregoing reasons, the order of the Fayette Circuit Court is vacated and this cause is remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Nate Kolb
Assistant Attorney General
Frankfort, Kentucky