Opinion
NO. 2014-CA-000202-MR
03-27-2015
ARTHUR N. PRUITT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Arthur N. Pruitt Sr., pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
INDICTMENT NO. 11-CR-001573
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT, AND STUMBO, JUDGES. J. LAMBERT, JUDGE: Arthur N. Pruitt, proceeding pro se, has appealed from the December 30, 2013, order of the Jefferson Circuit Court denying his motion to clarify his sentence and to run his sentences concurrently in Indictment Nos. 09-CR-1761 and 11-CR-1573. Finding no error, we affirm.
In May 2011, Pruitt was indicted on charges of second-degree assault, intimidating a participant in the legal process, and for being a second-degree persistent felony offender (PFO II). The assault and intimidation charges arose from incidents that took place in March 2011. A jury trial was held in October 2012, after which the jury convicted Pruitt on the assault charge and of the status offense of being a PFO II. The court held a sentencing hearing on April 1, 2013, and the following day it entered a judgment convicting Pruitt of second-degree assault and for being a PFO II, dismissed the intimidation charge, and imposed an eight-year sentence on the assault conviction, enhanced to twelve years by the PFO II conviction, for a total of twelve years' imprisonment.
On November 25, 2013, Pruitt filed a pro se motion for clarification of his sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.02, RCr 11.04, and §§ 2, 11, 13, and 14 of the Kentucky Constitution. He requested that the circuit court amend the judgment in the present case to clarify that his sentence was to run concurrently with the sentence imposed in Indictment No. 09-CR-1761, citing Kentucky Revised Statutes (KRS) 532.110(2). He stated that the Department of Corrections incorrectly determined that the sentences were to run consecutively to each other.
In response, the Commonwealth explained that on April 2, 2012, Pruitt entered a guilty plea to flagrant non-support in Indictment No. 09-CR-1761 and was sentenced to four years' imprisonment in November 2012. While he had been awaiting trial on this charge, Pruitt assaulted his girlfriend and was subsequently indicted for the charges associated with the present case. Pruitt was found guilty following a jury trial in October 2012, and the court imposed the jury's recommended sentence of twelve years' imprisonment on April 2, 2013. The Commonwealth went on to state that KRS 533.060(3) was controlling and required the sentences from his two convictions to be served consecutively. Furthermore, an administrator with the Department of Corrections had explained this to Pruitt by letter.
The certified record does not contain any records from Indictment No. 09-CR-1761, including the indictment or the 2012 judgment.
The circuit court entered an opinion and order on December 30, 2013, denying Pruitt's motion for clarification. The court held:
The sentences pursuant to indictment numbers 09-CR-1761 and 11-CR-1573 run consecutively. Pruitt argues that these sentences should run concurrently pursuant to KRS 532.110(2), which states: "If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run concurrently with any other sentence which the defendant must serve unless the sentence is required by subsection (3) of this section or KRS 533.060 to run consecutively."
Pruitt's argument is undermined by the very statute he cites. As the Commonwealth points out, KRS 533.060(3) requires his sentence under 11-CR-1573 to run consecutively with the sentence imposed under 09-CR-1761. KRS 533.060(3) states:
When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement
The court ultimately ordered that the sentences for the two convictions were to run consecutively. This appeal now follows.for the offense for which the person is awaiting trial.
KRS 533.060(3) (emphasis added).
Pruitt was indicted for Assault in the Second Degree - Domestic Violence, Intimidating a Participant in the Legal Process, and Persistent Felony Offender in the First [sic] Degree while he was awaiting trial for the charge of Flagrant Non-Support. He was subsequently convicted of two offenses.
"It is the intent of the legislature to punish persons who were convicted of committing a subsequent crime or crimes while awaiting trial more severely by eliminating the possibility of concurrent sentences." Moore v. Commonwealth, 990 S.W.2d 618, 621 (Ky. 1999). According to KRS 533.060(3), Pruitt's convictions must run consecutively. The Court does not have discretion to alter Pruitt's sentencing.
On appeal, Pruitt continues to assert that the two sentences should be served concurrently rather than consecutively, in part because he was unaware that the sentences would run consecutively when he entered the guilty plea to flagrant non-support. The Commonwealth asserts that the circuit court's order should be affirmed for two reasons.
First, the Commonwealth argues that the circuit court lacked jurisdiction to amend the judgment, which is what Pruitt had requested when he moved the court for clarification. The cited bases for his motion, RCr 11.02, RCr 11.04, and §§ 2, 11, 13, and 14 of the Kentucky Constitution, do not support his motion for relief, and a court loses jurisdiction to amend or vacate a criminal judgment ten days after its entry. See Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010) ("a trial court lacks power to amend a judgment ten days after the entry of that judgment."). The Winstead Court noted that RCr 10.10 provides an exception for clerical errors, which was not argued in the present case. Id. at 486. We agree that Pruitt has failed to establish a proper basis for his motion and that his motion was filed well after the ten-day time period in which he could have sought relief. However, we shall nevertheless review the merits of Pruitt's appeal.
Second, the Commonwealth argues that KRS 533.060(3) requires consecutive sentences. The timeline of Pruitt's criminal offenses is as follows:
• 2009 Indicted in 09-CR-1761We agree with the Commonwealth that Pruitt was awaiting trial in 09-CR-1761 when he committed the assault that led to his conviction in 11-CR-1573.
• March 17, 2011 Indicted in 11-CR-1573
• April 2, 2012 Entered guilty plea in 09-CR-1761
• Oct 23, 2012 Found guilty in 11-CR-1573
• Nov 16, 2012 Received four-year sentence in 09-CR-1761
• April 3, 2013 Received twelve-year sentence in 11-CR-1573
KRS 533.060(3) provides as follows:
When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense
committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.As the Commonwealth points out, Pruitt left the word "not" out of the statutory language on page 1 of his brief. There is no dispute that Pruitt was awaiting trial on the flagrant non-support charge when he committed the assault. Accordingly, the circuit court (and the Department of Corrections) properly determined that Pruitt's sentences in the two indictments were required to run consecutively by application of KRS 533.060(3).
For the foregoing reasons, the opinion and order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Arthur N. Pruitt Sr., pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky