WILLIAM EDWARD MEREDITH v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1996-CA-002904-MR
and
NO. 1996-CA-002905-MR
WILLIAM EDWARD MEREDITH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 93-CR-2540
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE: GUIDUGLI, JOHNSON and KNOPF, Judges.
GUIDUGLI, JUDGE.
William Edward Meredith (Meredith) appeals,
pro se, from two orders of the Jefferson Circuit Court denying
his CR 60.02 and RCr 11.42 motions.
Finding no merit to the
claims of error raised by Meredith, we affirm.
Meredith arrived at the River City Correctional Center
(RCCC) on April 19, 1993, for thirty (30) days, as a condition of
his probation on a felony escape charge.
On May 18, 1993,
Meredith signed out on work release and indicated a return time
of 6:30 p.m.
Meredith failed to return to RCCC or call to
request a time extension.
A warrant was issued for his arrest.
On August 8, 1993, Meredith was arrested after a routine traffic
stop revealed the outstanding arrest warrant.
Meredith was indicted in Jefferson Circuit Court on
November 6, 1993, for second-degree escape.
After his
indictment, his public defender and the Commonwealth reached a
plea agreement.
In exchange for a plea of guilty, the
Commonwealth agreed to recommend a sentence of two years to be
served consecutively with any current time and opposed probation.
Meredith accepted the agreement and agreed to plead guilty.
At
formal sentencing, Meredith’s attorney moved the court for
probation.
The court concurred but decided to depart from the
plea agreement Meredith had reached with the Commonwealth.
court then imposed a five-year probated sentence.
The
The videotape
record clearly indicates that Meredith was given the opportunity
to withdraw his plea at that time, but he declined to do so.
A written judgment was entered on May 2, 1994,
erroneously showing Meredith’s sentence as two years
imprisonment, probated for five years.
On November 3, 1994, the
Commonwealth moved to correct the judgment to conform to the
sentence actually imposed by the court.
On November 23, 1994,
the court corrected the judgment pursuant to RCr 10.10 to show
Meredith was sentenced to five years, probated for five years.
On December 9, 1994, Meredith’s probation was revoked after being
arrested in Hillsborough, Florida, because he violated the
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conditions of his probation by, inter alia, leaving Jefferson
County, Kentucky, without permission.
On December 15, 1995, Meredith filed a CR 60.02 motion
to vacate sentence and, on April 22, 1996, Meredith filed a
RCr 11.42 motion to vacate sentence based on ineffective
assistance of counsel.
These motions were denied in separate
orders entered October 2, 1996, and October 8, 1996,
respectively.
This appeal raises two issues from the RCr 11.42
motion and one issue not otherwise presented to the trial court.
Meredith’s first assignment of error is that he was
denied due process of law when the Jefferson Circuit Court
corrected the judgment seven months after it was initially
entered.
Although this alleged error was not presented to the
trial court, it is easily addressed.
Meredith argues that the
trial court “lost jurisdiction over the case” after ten days.
Meredith cites Commonwealth v. Marcum, Ky., 873 S.W.2d 207
(1994); Galusha v. Commonwealth, Ky., 834 S.W.2d 696 (1992);
McMurray v. Commonwealth, Ky., 682 S.W.2d 794 (1985) and CR 59.05
as supportive of his argument.
Meredith was not denied due process of law.
The
videotape record of the sentencing hearing clearly shows that
Meredith understood the court would not approve the original plea
agreement, ordered a sentence of five years probated, and offered
Meredith the opportunity to withdraw his guilty plea.
declined to withdraw his plea of guilty.
Meredith
Thereafter, the trial
court did not lose jurisdiction to correct the mistake in the
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written record simply because ten days had passed.
RCr 10.10
specifically states that clerical mistakes such as the one made
in this case, “...may be corrected by the court at any time on
its own initiative or upon the motion of any party... .”
The
cases cited by Meredith simply do not apply to the facts
presented here.
Those cases involved various attempts to modify
or increase sentences actually imposed after the expiration of
ten days.
Here, the sentence was never increased - the record
was simply corrected to conform to what actually occurred at the
sentencing hearing.
We find no merit in this allegation of
error.
Meredith’s second assignment of error is that he was
denied due process of law when the trial court “welshed” on its
plea bargain agreement.
This argument indicates Meredith does
not understand the process of plea negotiations.
A long line of
cases hold that the Commonwealth (i.e., the prosecution) is bound
by its plea agreements.
agreement.
RCr 8.10.
The court is never bound by such an
In the event the court decides to reject a
plea agreement reached between a defendant and the Commonwealth,
RCr 8.10 dictates the procedure to be followed:
If the court rejects the plea agreement,
the court shall, on the record, inform the
parties of this fact, advise the defendant
personally in open court...that the court is
not bound by the plea agreement, afford the
defendant the opportunity to then withdraw
his plea, and advise the defendant that if he
persists in his guilty plea the disposition
of the case may be less favorable to the
defendant than that contemplated by the plea
agreement.
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This is exactly what happened in this case.
The
Commonwealth kept its agreement and recommended a sentence of two
years to be served consecutively with any current time and
opposed probation.
At formal sentencing, Meredith’s attorney
moved the court for probation.
The court concurred but decided
to depart from the plea agreement.
terms of that plea agreement.
The court noted the exact
The court then imposed a five year
sentence, probated for five years.
The videotape record clearly
indicates that Meredith was given the opportunity to withdraw his
plea at this time, but he declined to do so.
required by law was followed to the letter.
The procedure
There was no error
and Meredith was not denied due process of law.
Meredith’s final assignment of error is that he was
denied due process of law when his public defender failed to
object when “the Commonwealth welshed on it’s [sic] plea bargain
agreement.”
As stated above, there was no error or breach of
standard procedure.
The Commonwealth kept its plea agreement to
Meredith - the court simply chose not to follow the
recommendation.
Meredith agreed to accept the longer five year
sentence (to be probated).
Counsel was not ineffective.
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
In fact, counsel was effective in securing Meredith’s
freedom.
The recommendation the Commonwealth agreed to make,
included a promise it would object to probation.
On counsel’s
motion, and over the objection of the Commonwealth, Meredith was
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given his freedom by the court - subject to five years probation.
All Meredith had to do to remain a free man was abide by the
terms of his probation.
That he was unable to do so is not his
counsel’s fault.
We affirm the trial court’s summary denial of
Meredith’s CR 60.02 and RCr 11.42 motions.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
William Edward Meredith
West Liberty, KY
A. B. Chandler, III
Attorney General
Gregory Fuchs
Assistant Attorney General
Frankfort, KY
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