Opinion
NO. 2011-CA-001122-MR
02-08-2013
CHUCK FUQUA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 10-CR-00128
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. CLAYTON, JUDGE: This is an appeal of a decision of the Grayson Circuit Court denying the appellant, Chuck Fuqua's, motion to correct his sentence. Based upon the following, we affirm the decision of the circuit court.
BACKGROUND INFORMATION
The appellant, Chuck Fuqua, pled guilty to promoting contraband, first degree. As part of the plea agreement, Fuqua agreed to a sentence of one (1) year to be served concurrently with his sentence. At the taking of his plea, the circuit court judge performed a plea colloquy and sentenced Fuqua as follows:
You are hereby sentenced to one year. This one year will run concurrent with Grayson Circuit Court case number 09-CR-75, [and] will be consecutive to any other sentences imposed by this court, other than what I just mentioned, or any court prior to this date.
Fuqua filed a pro se motion to correct his sentence under Kentucky Rules of Civil Procedure (CR) 60.01 on May 3, 2011, arguing that it added time to prior sentencings and that it was the result of clerical error. Fuqua's sentence in Grayson Circuit Court (09-CR-00075) ran concurrently with his sentences in Edmonson Circuit Court (09-CR-00100), Barren Circuit Court (08-CR-00142 and 09-CR-00327), and Warren Circuit Court (09-CR-00729). He contends that it is illogical to have the one (1) year sentence run concurrently with only one of the sentences, when they all ran concurrently with each other.
The Grayson Circuit Court denied Fuqua's motion to correct his sentence and he then filed this appeal.
STANDARD OF REVIEW
We review the denial of a CR 60.01 motion for an abuse of discretion. See Aurora Loan Services v. Ramey, 144 S.W.3d 295, 299 (Ky. App. 2004).
DISCUSSION
CR 60.01 provides as follows:
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 of its own initiative or on the motion of any party and after such notice, if any, as the court orders.The Commonwealth argues that, if an error is not a clerical error, it cannot be corrected under this motion. In Cardwell v. Commonwealth, 12 S.W.3d 672, 674 (Ky. 2000), the Kentucky Supreme Court explained the difference between a clerical error and a judicial error as follows:
[T]he distinction between clerical error and judicial error does not turn on whether the correction of the error results in a substantive change in the judgment. Rather, the distinction turns on whether the error "was the deliberate result of judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel, or by the judge." Buchanan v. West Kentucky Coal Company, 218 Ky. 259, 291 S.W. 32, 35 (1927). "A clerical error involves an error or mistake made by a clerk or other judicial or ministerial officer in writing or keeping records . . . ." 46 Am. Jur. 2d, Judgments §167.
In the present case, the court set forth, on the record during the plea colloquy, that the sentence would run concurrently with Grayson Circuit Court case number 09-CR-00075. The trial judge then reduced this to a written judgment in his sentence of Fuqua. There is, therefore, no clerical mistake in the record.
In Viers v. Commonwealth, 52 S.W.3d 527, 529 (Ky. 2001), the Kentucky Supreme Court discussed a similar situation and held:
On review, the 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. See Presidential Estates Apartment Associates v. Barrett, 129 Wash. 2d 320, 917As set forth above, the sentence pronounced by the trial judge at the plea hearing was the same reduced to writing in his written judgment. For this reason, CR 60.01 is not an appropriate method of correcting any judicial mistake made by the trial court in this case. Thus, we affirm the decision of the trial court.
P. 2d 100, 103 (1996). 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. See id. at 104. But if it does not, then the error must be judicial.
ALL CONCUR. BRIEF FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky