Opinion
NO. 2012-CA-001108-MR
04-05-2013
JOSEPH DANIEL KNIGHT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joseph D. Knight, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 09-CR-00003
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. DIXON, JUDGE: The appellant, Joseph Knight, appeals the Muhlenberg Circuit Court's denial of his Kentucky Rule of Civil Procedure (CR) 59.05 motion and his request for additional findings of fact made pursuant to CR 52.02. We conclude however, that the court did not err by declining to make alterations to his presentence investigation report. Therefore, we affirm.
On June 9, 2009, a final judgment was entered accepting Knight's plea of guilty to the charge of burglary in the second degree and two charges of assault in the second degree. The final judgment indicated that Knight and his attorney received copies of the pre-sentence investigation report (PSI), as well as time to review and controvert the same. On March 30, 2012, Knight filed a pro se motion to correct the PSI averring that it contained incorrect information regarding the injury sustained by his victims. Soon thereafter, on May 14, 2012, Knight filed another motion to correct the PSI wherein he relied on Kentucky Rule of Criminal Procedure (RCr) 10.10 and CR 60.01. The circuit court denied his request, finding that Knight and his attorney both indicated that they reviewed the PSI and neither requested a change. The court also noted that the language Knight wished to change was consistent with the charges to which he pled guilty. Specifically, Knight wished to remove a comment indicating that his actions resulted in serious bodily injury.
Subsequent to the court's denial of his motion, Knight filed another motion pursuant to CR 59.05 to vacate, alter, or amend the court's order and CR 52.02 requesting additional findings of fact. In his CR 59.05 motion, Knight once again asserted that the language was improperly added to his PSI and further alleged that his counsel was ineffective. Knight's motion was denied on June 14, 2012, and this appeal followed.
Knight's attempt to seek redress through CR 59.05 is misplaced. The order which he seeks to alter, vacate, or amend is not a final judgment as required by the rule. CR 59.05 ("A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of final judgment."). Such a motion would have been an appropriate vehicle by which to challenge the final judgment entered on June 9, 2009, but not a pre-sentence report. Furthermore, Knight's arguments regarding the ineffective assistance of his counsel were not appropriate for a RCr 59.05 motion and instead should be raised pursuant to RCr 11.42.
Even assuming the procedural soundness of this appeal, the circuit court correctly determined that alteration of the PSI was not appropriate. Our review of the record reveals that the PSI, filed on June 9, 2009, contained the language at issue. Further, the final judgment and sentence specifically referenced the PSI and indicated that Knight and his counsel confirmed receipt, had opportunity for review, and declined to call it into question. The court properly denied his request, and additional findings of fact were not required.
The decision of the Muhlenberg Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph D. Knight, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky