Opinion
NO. 2017-CA-000922-MR
07-13-2018
STEPHON TRAMBER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Stephon Tramber, pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 12-CR-000309 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, KRAMER, AND D. LAMBERT, JUDGES. JONES, JUDGE: Appellant, Stephon Tramber, brings this pro se appeal challenging the Jefferson Circuit Court's order denying his CR 60.02(f) motion to set aside an addendum to his judgment and conviction of sentence. Finding no error, we AFFIRM the order of the Jefferson Circuit Court.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
On January 18, 2012, Tramber was indicted on one count of assault in the third degree. The incident giving rise to the indictment occurred in November of 2011, when Tramber, who was serving a sentence on unrelated criminal convictions, caused physical injury to a corrections officer. The day the indictment was issued, Tramber moved to enter a plea of guilty. The Commonwealth's offer on plea of guilty recommended a two-year sentence, to run consecutive to the twelve-year sentence Tramber was currently serving. The trial court entered a judgment and conviction of sentence on March 14, 2012. Therein, the trial court stated that it accepted Tramber's plea of guilty and sentenced him to two years' imprisonment. The judgment was silent as to whether the two-year sentence was to run consecutively or concurrently to the twelve-year sentence Tramber was currently serving. The trial court sua sponte entered an addendum to the judgment and conviction of sentence on April 6, 2012, by which it ordered that language stating that the two-year sentence was to run consecutively to Tramber's twelve-year sentence be added to the March 14, 2012 judgment.
Tramber moved for shock probation in June of 2012. In the affidavit accompanying his motion, Tramber acknowledged that the two-year sentence for the assault charge meant that he was now required to serve fourteen years' imprisonment. The motion for shock probation was denied. In December of 2016, Tramber wrote the Jefferson Circuit Court requesting copies of any motions entered in his case to alter, amend, or vacate the March 14, 2012 judgment. In that letter, Tramber stated that he had recently been informed that the length of his sentence had been recalculated due to an addendum to the judgment.
In January of 2017, Tramber moved to set aside the addendum to the judgment under CR 60.02(f). Tramber alleged that the addendum was unlawful, as the addendum had increased the term of his imprisonment and had been entered twenty-three days after the original judgment. Tramber contended that, pursuant to CR 59.05, the trial court no longer had jurisdiction to modify the judgment ten days after its entry. Because the original judgment had failed to indicate whether Tramber's two-year sentence ran concurrently or consecutive to his twelve-year sentence, Tramber contended that KRS 532.110(2) mandated that his sentences run concurrently.
Kentucky Revised Statutes.
The Commonwealth's response contended that Tramber's motion had not been filed within a reasonable time and was, therefore, untimely. Additionally, the Commonwealth argued that the trial court's failure to indicate that the two-year sentence ran consecutively to the twelve-year sentence was a clerical error, which could be corrected at any time under RCr 10.10 and, further, that Tramber was required to serve consecutive sentences pursuant to KRS 533.060(3). The trial court denied Tramber's CR 60.02 motion on March 14, 2017. Therein, the trial court stated that the addendum had corrected a clerical error and further concluded that Tramber was required to serve consecutive sentences under KRS 533.060(3).
Kentucky Rules of Criminal Procedure. --------
This appeal followed.
II. STANDARD OF REVIEW
We review a trial court's order on a CR 60.02 motion for abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
III. ANALYSIS
On appeal, Tramber contends that the trial court's failure to include language indicating whether his sentence was to run consecutively or concurrently in the original judgment amounts to a judicial error and not, as the trial court concluded, a clerical error. Accordingly, Tramber argues that the trial court was without jurisdiction to make an addendum to the judgment and abused its discretion in denying his motion to set the addendum aside. Additionally, Tramber contends that the trial court erred in finding that KRS 533.060 mandates that his sentences run consecutively.
It is undisputed that the trial court entered the addendum twenty-three days after entry of the original judgment and conviction of sentence. "Generally speaking, a trial court lacks power to amend a judgment ten days after the entry of that judgment." Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010). "An exception to that ten-day rule exists for clerical errors." Id. at 486. "Clerical mistakes in judgments . . . and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative . . . ." RCr 10.10. Accordingly, whether the trial court had jurisdiction to amend the original judgment depends on whether omission of language dictating whether Tramber was to serve his sentence concurrently or consecutively to his prior sentences constitutes a judicial error or a clerical error.
"[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." Cardwell v. Commonwealth, 12 S.W.3d 672, 674 (Ky. 2000). "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.'" Id. (quoting Buchanan v. West Kentucky Coal Co., 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 . . . ." Id. (quoting 46 Am. Jur. 2d, Judgments § 167).
The Commonwealth's offer on a plea of guilty, signed by Tramber and accepted by the trial court, explicitly states that the two-year sentence will run consecutively to the twelve-year sentence Tramber was already serving. The Commonwealth cites to the video record in support of its contention that the trial court's oral pronouncement of Tramber's sentence at the guilty plea hearing reiterated the fact that the two-year sentence would be consecutive to Tramber's twelve-year sentence. Accordingly, the Commonwealth contends that language stating that Tramber's sentence in the underlying case was to run consecutive to his sentences in his prior criminal cases was inadvertently omitted from the written judgment and that the addendum simply corrected this inadvertence.
In Cardwell, Cardwell was found guilty on charges of manslaughter and assault, for which he received a sentence of ten years' imprisonment. At the time of his trial, Cardwell had already been sentenced on separate, unrelated charges to serve five years' imprisonment. The trial court orally ordered that the five-year sentence and the ten-year sentence run consecutively. However, the written judgment and sentence failed to indicate whether Cardwell's ten-year sentence was to run concurrently or consecutively with the five-year sentence. Eight months later, the trial court amended the judgment to state that the sentences were to run consecutively.
On appeal, a divided Kentucky Supreme Court found that "the omission in the original judgment of a provision that Cardwell's sentence was to run consecutive with his previous sentence was a mistake made in reducing the oral judgment to writing." Id. at 674. Therefore, the Court concluded that the omission was a clerical error, which the trial court had the authority to correct under RCr 10.10. Id. at 674-75. Thus, under Cardwell, the trial court's oral proclamation that Tramber's sentences were to run consecutively is sufficient to demonstrate that the omission of such provision in the written judgment was a clerical error.
Tramber did not designate the video record as part of the record on this appeal. While the Commonwealth's motion to supplement the record to include the video record was granted, it does not appear that the Commonwealth ever did so. Accordingly, we are unable to verify whether the trial court did, in fact, orally state that Tramber's sentences were to run consecutively. However, when the record on appeal is incomplete, "we are required to assume that the portions which have been omitted support the decision of the trial court." Harper v. Commonwealth, 371 S.W.3d 763, 769 (Ky. App. 2011). Accordingly, we must assume that the video record supports the trial court's finding that the addendum was entered to correct a clerical error. As clerical errors may be corrected at any time under RCr 10.10, the trial court did not err in entering the addendum to properly reflect that Tramber's two-year sentence was to run consecutive to his twelve-year sentence. In so concluding, we need not address Tramber's contention that KRS 533.060(3) is inapplicable.
IV. CONCLUSION
In light of the foregoing, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Stephon Tramber, pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky