Opinion
NO. 2014-CA-001661-MR
01-15-2016
BILLIE MASTERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Billie Masters, pro se Kentucky State Reformatory LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 10-CR-00043 OPINION
AFFIRMING BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Billie Masters appeals from an order of the Madison Circuit Court denying his motion to correct his sentence pursuant to RCr 10.10. He argues that the trial court lacked jurisdiction to enter an amended judgment and sentence. However, we agree with the Commonwealth that the error regarding his sentence in the original judgment was clerical and therefore subject to correction at any time. Hence, we affirm.
Kentucky Rules of Criminal Procedure.
On February 3, 2010, a Madison County grand jury returned an indictment charging Masters with first-degree robbery and being a persistent felony offender in the first degree (PFO I). Subsequently, Masters withdrew his plea of not guilty and accepted the Commonwealth's offer on a plea of guilty. In exchange for his plea, the Commonwealth agreed to dismiss the PFO I count, and to recommend a sentence of twelve years' imprisonment on the robbery count. The trial court accepted Masters's guilty plea on June 23, 2010 and set the matter for sentencing.
On July 26, 2010, the trial court entered a judgment imposing sentence. But while the court's oral findings and docket entry reflected the Commonwealth's recommendation of twelve years, the written judgment set out a sentence of ten years' imprisonment. When the discrepancy was brought to the trial court's attention, the trial court entered an amended judgment on August 10, 2010, imposing the twelve-year sentence recommended by the Commonwealth.
On February 6, 2014, Masters filed a pro se motion pursuant to CR 60.02(f) to modify his sentence. He argued that the trial court lacked jurisdiction to modify the sentence because the amended judgment was entered more than ten days after entry of the judgment. The trial court denied the motion, concluding that it had jurisdiction to correct a clerical error pursuant to RCr 10.10.
Kentucky Rules of Civil Procedure. --------
Shortly thereafter, Masters filed a motion to correct his sentence pursuant to RCr 10.10. The trial court denied the motion based on its findings in the CR 60.02 proceeding. This pro se appeal followed.
As an initial matter, Masters did not appeal from the trial court's denial of his CR 60.02 motion, or from its findings that his plea agreement included a twelve-year sentence. Therefore, the issues relating to that motion and those findings are not before this Court. Nevertheless, Masters correctly notes that a trial court generally lacks the power to amend a judgment more than ten days after its entry. Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010). Consequently, he contends that the amended judgment is void and can be challenged at any time.
However, RCr 10.10 expressly permits a trial court to correct a clerical error "at any time on its own initiative or on the motion of any party...." 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. Id. at 486, citing Viers v. Commonwealth, 52 S.W.3d 527, 529 (Ky. 2001). An error is clerical where the amended judgment either corrects language that is inconsistent with the oral judgment, or supplies language that was inadvertently omitted from the oral judgment. Id.
In this case, the plea agreement clearly provided for a sentence of twelve years. While the written judgment inadvertently set out a ten-year sentence, the trial court's oral judgment and docket entry set out a twelve-year sentence. Based on the record, the error was clerical and thus subject to correction pursuant to RCr 10.10. Therefore, the trial court did not err by denying Masters's motion to correct his sentence.
Accordingly, the August 28, 2014 order of the Madison Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Billie Masters, pro se
Kentucky State Reformatory
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky