JOSEPH DARNELL CARR v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 29, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001864-MR
JOSEPH DARNELL CARR
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 98-CR-01176
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE:
Joseph Darnell Carr appeals from an order of
the Fayette Circuit Court imposing upon him a sentence of three
years’ conditional discharge pursuant to KRS 532.043.
Having
determined that the trial court’s failure to include the
conditional discharge in the final judgment was a clerical error,
we affirm the order of the trial court imposing the additional
sentence.
On November 16, 1998, appellant was indicted by the
Fayette County Grand Jury on two counts of second-degree rape,
resulting from acts committed on September 4, 1998.
On July 16,
1999, appellant pled guilty to the amended charge of one count of
third-degree rape, with the Commonwealth recommending a sentence
of one year and dismissal of the second count.
A sentencing
hearing was scheduled for August 20, 1999, rescheduled for
October 8, 1999, and rescheduled again for November 5, 1999.
On
October 25, 1999, appellant filed a motion to declare KRS 17.500
et seq. and KRS 532.043 unconstitutional.
KRS 532.043 states, in
pertinent part:
(1) In addition to the penalties authorized
by law, any person convicted of, pleading
guilty to, or entering an Alford plea to a
felony offense under KRS Chapter 510 . . .
shall be subject to a period of conditional
discharge following release from:
(a) Incarceration upon expiration of
sentence; or
(b)
Completion of parole.
(2) The period of conditional discharge
shall be three (3) years.
At the November 5, 1999 hearing, the court stated that
it had not yet had the opportunity to read the Commonwealth’s
response to appellant’s motion, and was therefore postponing
appellant’s sentencing until November 12, 1999, at which time the
court would rule on the motion.
on November 12, 1999.
The sentencing hearing was held
At the hearing, the court stated that it
was sentencing the appellant to one year, as recommended, but
made no mention of the three-year conditional discharge required
by KRS 532.043.
The record indicates that the court did not rule
on appellant’s motion regarding KRS 17.500 et seq. and KRS
532.043 at the November 12, 1999 hearing.
On November 17, 1999,
the court entered its final judgment and sentence of
imprisonment, finding appellant guilty of the amended charge of
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third-degree rape, and dismissing the second count.
In the final
judgment, the court sentenced appellant to one year’s
imprisonment, but did not sentence appellant to the three years’
conditional discharge required by KRS 532.043.
Additionally on
November 17, 1999, the court entered an order denying appellant’s
motion to declare KRS 17.500 et seq. and KRS 532.043
unconstitutional.
In a letter dated July 6, 2000, the Department of
Corrections informed the Fayette Circuit Court that appellant was
scheduled for release on October 28, 2000, but that appellant had
not been sentenced to the three years of conditional discharge
provided for by KRS 532.043.
Subsequently, on July 12, 2000, the
court entered an order stating that appellant was "additionally
sentenced to a period of conditional discharge of three (3) years
following his release (a) from incarceration upon expiration of
his sentence of imprisonment or (b) from completion of parole.”
On August 2, 2000, appellant filed a notice of appeal from the
July 12, 2000 order.
Appellant contends that the trial court had no
authority on July 12, 2000, to amend its original judgment,
entered November 17, 1999, to add a three-year term of
conditional discharge to appellant’s sentence which was not
included in the original judgment.
In general, a trial court
loses control of its judgment 10 days after its entry.
McMurray
v. Commonwealth, Ky. App., 682 S.W.2d 794, 795 (1985); RCr 10.10.
However, RCr 10.10 provides that “[c]lerical mistakes in
judgments, orders or other parts of the record and errors therein
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arising from oversight or omission may be corrected by the court
at any time . . .”
“The language of RCr 10.10 strongly implies
that its application is limited only to clerical errors and
omissions, not judicial ones.”
McMillen v. Commonwealth, Ky.
App., 717 S.W.2d 508, 509 (1986).
Recently, in Cardwell v.
Commonwealth, Ky., 12 S.W.3d 672, 674 (2000), the Kentucky
Supreme Court discussed the distinction between clerical and
judicial 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. Rather,
the distinction turns on whether the
correction of 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.” Buchanan v. West Kentucky Coal
Company, Ky., 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. . . .” 46 Am. Jur. 2d Judgments §
167.
Our review of the record indicates that the court’s
omission from the November 17, 2000, final judgment of the threeyear period of conditional discharge mandated by KRS 532.043 was
not the deliberate result of judicial reasoning and
determination.
Cardwell, 12 S.W.3d at 674-675.
Appellant, the
Commonwealth, and the court were clearly aware that, having been
convicted of third-degree rape, KRS 510.060, appellant was
subject to the provisions of KRS 532.043.
This is evidenced by
appellant’s motion, filed prior to the sentencing hearing, to
have KRS 532.043 (and KRS 17.500 et seq.) declared
unconstitutional, in which motion appellant acknowledged that KRS
-4-
532.043 required that felony sex offenders be subjected to three
years’ conditional discharge following release from incarceration
or parole.
In order to have time to properly consider the
motion, the court postponed the sentencing hearing until
November 12, 2000.
On the same date as the court entered final
judgment, November 17, 2000, it also denied appellant’s motion to
declare KRS 532.043 (and KRS 17.500 et seq.) unconstitutional.
Accordingly, we view the court’s failure to include the three
years’ conditional discharge in the final judgment as an omission
constituting a clerical error.
Appellant contends that it is possible that the court
left out the conditional discharge intentionally because the
court specifically stated that it was not sentencing appellant as
“an eligible sex offender” since he would not have time to
complete the sexual offender program at the institution.
disagree.
We
The trial court did not have the discretion to
sentence appellant contrary to KRS 532.043, which mandates that
appellant, having been convicted under KRS Chapter 510, be
sentenced to three years’ conditional discharge.
12 S.W.3d at 677.
See Cardwell,
Rather, we believe that the trial court was
referring by this statement to KRS 439.340(11) which requires
that an individual designated as an “eligible sexual offender”
complete the Sexual Offender Treatment Program before he can be
granted parole.
See Garland v. Commonwealth, Ky. App., 997
S.W.2d 487 (1999).
An “eligible sexual offender” is defined in
KRS 197.410, which states, in pertinent part:
(1) A person is considered to be a “sexual
offender” as used in this chapter when he:
-5-
(a) Has been adjudicated guilty of any
felony described in KRS Chapter 510;
. . . .
(2) A sexual offender becomes an “eligible
sexual offender” when the sentencing court or
department officials, or both, determine that
the offender:
(a) Has demonstrated evidence of a
mental, emotional, or behavioral disorder,
but not active psychosis or mental
retardation; and
(b) Is likely to benefit from the
program.
The court explained at the sentencing hearing that the length of
the Sex Offender Treatment Program requires that an offender be
serving at least a two-and-a-half year sentence in order to have
time to complete the program.
As appellant’s sentence was only
one year, the court could not designate him as an “eligible sex
offender,” as he could not get into or have time to complete the
program.
For the aforementioned reasons, the trial court’s
July 12, 2000 order sentencing appellant to a three-year period
of conditional discharge is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Tami Allen Stetler
-6-
Assistant Attorney General
Frankfort, Kentucky
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