RONALD DAILEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002507-MR
RONALD DAILEY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NOS. 02-CR-001383 & 04-CR-000636
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
Ronald Dailey appeals from an order of the
Jefferson Circuit Court denying his motion to return $1,220
forfeited under the terms of a plea agreement.
For the reasons
stated below, we affirm the order on appeal.
On June 20, 2002, Dailey was indicted on charges of
first-degree trafficking in a controlled substance, possession
of drug paraphernalia, and for being a persistent felony
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
offender in the second degree.
A subsequent indictment amended
the latter charge to persistent felony offender in the first
degree.
Trial on the charges was conducted in Jefferson
Circuit Court in March, 2004.
After the jury returned a guilty
verdict on the trafficking and possession of paraphernalia
charges, Dailey agreed to waive jury sentencing and plead guilty
to the PFO I charge.
Under the terms of the plea, Dailey
received a sentence of 10 years in prison, agreed to forfeit
property and cash seized during the arrest, and waived his right
to appeal.
The agreement was memorialized on videotape, and
Dailey and his counsel signed a waiver form.
On March 25, 2004, a judgment was rendered which
reflected the verdict and plea.
forfeiture.
It did not address the
On December 14, 2004, the court entered a
forfeiture order.
This appeal followed.
Dailey argues that cash in the amount of $1,220 was
unlawfully confiscated by the Commonwealth and that the
Jefferson Circuit Court committed reversible error in failing to
so rule.
He maintains that he was denied due process and equal
protection under the Constitutions of the United States and of
Kentucky when the trial court and the Commonwealth failed to
conduct a separate hearing to determine whether the cash was
subject to forfeiture.
He cites case law which he maintains
-2-
supports his assertion that he was entitled to a hearing on the
issue, and he seeks a reversal of the December 14, 2004,
forfeiture order.
Conversely, the Commonwealth argues that no
hearing on the issue is required where, as in the matter at bar,
a defendant enters into a plea agreement which provides for the
forfeiture.
The Commonwealth relies on Commonwealth v. Shirley, 2
for the proposition that no forfeiture hearing is required when
a defendant enters into a plea agreement, the terms of which
provide for the forfeiture of seized property.
argument persuasive.
We find this
In Shirley, the primary issue was whether
the court erred in refusing to order the forfeiture of a vehicle
used in a drug transaction.
benefit of a hearing.
The order was rendered without the
The case also included the voluntary
forfeiture of personal property – again, without a hearing.
In
affirming, a panel of this Court concluded that no hearing was
required, and alternatively if such a hearing was required, any
error was harmless.
While not directly on point, Shirley supports the
conclusion that as part of a plea agreement a defendant may
choose to voluntarily forfeit personal property; and, that no
hearing is required to sustain such a decision.
The trial
court’s examination of the defendant’s voluntary, knowing and
2
140 S.W.3d 593 (Ky.App. 2004).
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intelligent acceptance of the plea is sufficient to determine
whether the defendant’s voluntary forfeiture should be accepted.
No additional hearing is required.
In the matter at bar, Dailey stated on the record in
open court that he agreed to the forfeiture of cash seized
during his arrest.
The trial court conducted the standard plea
colloquy and found that the plea was entered into knowingly,
voluntarily and intelligently.
The plea was not imposed on
Dailey, and a reasonable presumption exists that Dailey, through
counsel, concluded that he benefited from the plea.
Since the
trial court is in the best position to determine if the plea
passes constitutional muster, and as there is no basis for
concluding that an additional hearing on the forfeiture issue
was required, we find no basis for reversing the December 14,
2004, order on this issue.
Lastly, it is worth noting that the order on appeal
was rendered after Dailey filed his notice of appeal. 3
RCr 10.10
allows for clerical mistakes to be remedied at any time before
an appeal is perfected. 4
Since the forfeiture should have been
3
On November 19, 2004, the court entered an order denying Dailey’s pro se
motion to modify the March 25, 2004, judgment and return the $1,220 to him.
Dailey filed a notice of appeal from that order. The court then entered the
December 14, 2004, order forfeiting the money and distributing it to the
Louisville Metro Police Department and Jefferson County Commonwealth’s
Attorney Special Operations Fund.
4
RCr 10.10 states that “[C]lerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission may
be corrected by the court at any time on its own initiative or on the motion
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addressed in the March 25, 2004, judgment that reflected the
verdict and plea, the December 14, 2004, order may properly be
regarded as simply correcting the judgment, and as such, it
falls under RCr 10.10.
For the foregoing reasons, we affirm the December 14,
2004 order of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald Dailey, Pro Se
West Liberty, KY
Hon. Gregory D. Stumbo
Attorney General
James C. Shackelford
Assistant Attorney General
Frankfort, KY
of any party and after such notice, if any, as the court orders. During the
pendency of an appeal, such mistakes may be so corrected before the appeal is
perfected in the appellate court, and thereafter while the appeal is pending
may be so corrected with leave of the appellate court.”
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