Opinion
NO. 2017-CA-000607-MR
03-23-2018
IVAN D. GUNNELLS JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Heather Hodgson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIM CORNETT CHILDERS, JUDGE
ACTION NO. 07-CR-00012 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Ivan D. Gunnells Jr. appeals from a Knott Circuit Court order denying his motion to amend judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.01 and 60.02.
On January 4, 2007, a grand jury indicted Gunnells for one charge of rape in the third degree. The offense itself occurred on or about December 2003. Gunnells entered a plea of guilty and was sentenced to five years' incarceration, probated for five years, followed by five years of conditional discharge.
On February 17, 2017, Gunnells filed a pro se motion to amend judgment, arguing that his period of conditional discharge should be three years, not five, because the conditional discharge (now post-incarceration supervision) statute in effect at the time he committed the crime provided for a period of three years. Kentucky Revised Statutes (KRS) 532.043.
The trial court denied the motion, noting on the docket sheet that Gunnells had waived the right to challenge the judgment because he signed a specific agreement. This appeal by Gunnells followed.
We review the denial of a CR 60.02 motion for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (internal citations omitted).
In Sanderson v. Commonwealth, 291 S.W.3d 610, 615 (Ky. 2009), the appellant, like Gunnells, was sentenced to five years of conditional discharge, although the version of KRS 532.043 in effect at the time he committed the underlying offenses provided for only three years of conditional discharge. In reliance on Purvis v. Commonwealth, 14 S.W.3d 21 (Ky. 2000), the Kentucky Supreme Court held that the retroactive application of the lengthier period was an unconstitutional ex post facto law. Sanderson, 291 S.W.3d at 615 (citing Purvis, 14 S.W.3d at 24). The Commonwealth concedes that the relevant facts of Gunnells's case are identical and that therefore Gunnells's period of conditional discharge cannot exceed three years, the statutory maximum at the time the offense took place.
As to the trial court's finding that Gunnells had waived the right to challenge the judgment because he had signed a specific agreement to that effect, we note first of all that the plea agreement in the record makes no mention of conditional discharge. Furthermore, "[a] sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of discretion[,]" whether it is "recommended by an errant jury or by the parties through a plea agreement[.]" McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010).
Because the trial court abused its discretion in denying Gunnells's motion, its order is reversed, and the case is remanded for entry of an amended judgment imposing a conditional discharge period of three years.
ALL CONCUR. BRIEF FOR APPELLANT: Heather Hodgson
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Lucas
Assistant Attorney General
Frankfort, Kentucky