JAMES BENJAMIN GARY v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: MAY 18, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES BENJAMIN GARY
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 03-CR-002433
COMMONWEALTH OF KENTUCKY
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BEFORE: DIXON AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant, James Benjamin Gary, appeals from an order of the
Jefferson Circuit Court sentencing him to a total of ten years' imprisonment. For the
reasons set forth herein, we reverse.
On September 17, 2003, Appellant was indicted for a series of burglaries,
robberies and thefts that occurred in the Louisville area between September 2001 and
April 2003. The following day, Appellant pled guilty to seven counts of second-degree
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
burglary and two counts of second-degree robbery. Pursuant to a plea agreement, the
Commonwealth recommended a sentence of “six years to serve or twelve years if
probated.” The agreement further provided:
The Commonwealth and the defendant agree that the
defendant will be sentenced to serve. The defendant may file
for shock probation. The Commonwealth will leave the
matter of shock probation within the court's sound discretion.
If the defendant is shock probated, the sentence shall be
twelve years probated for five years.
The record reveals that during the September 18th hearing, the trial court
conducted the standard Boykin inquiry and was repeatedly assured by Appellant that he
understood the terms and conditions of the plea agreement. In fact, the Commonwealth
attorney requested that Appellant again consider the ramifications of an increased
sentence in the event that Appellant was later probated. The trial court thereafter
accepted the plea and entered a Judgment on Guilty Plea and Sentence, which
incorporated verbatim the above-quoted language from the plea agreement.
Subsequently, on December 22, 2003, the trial court granted Appellant's request for
shock probation, and entered an order reflecting the twelve year sentence (probated for a
period of five years) as agreed upon in the plea agreement.
However, following repeated probation violations, the Commonwealth
moved to revoke Appellant's probation. The trial court held a hearing on the
Commonwealth's motion on November 28, 2005. On that same day, Appellant hand
delivered a motion requesting the trial court to impose the original six year sentence. The
record reflects that during the hearing, Appellant argued that Galusha v. Commonwealth,
834 S.W.2d 696 (Ky. App. 1992), prohibited the trial court from granting probation in
exchange for a longer sentence in the event of revocation. The Commonwealth, while
conceding that Galusha did appear to be controlling, requested additional time to
research the issue. The trial court thereafter ruled that it would impose the original six
year sentence and noted that if the Commonwealth determined that Galusha did not
apply, it could move to alter or amend the order if filed within ten days of the order
entered on November 28, 2005, sentencing Appellant to six years' imprisonment.
On December 7, 2005, the Commonwealth filed a pleading styled,
“Commonwealth's Reply to Defendant's Motion To Amend Sentence,” wherein it argued
that Galusha was distinguishable upon the facts from the instant case, and that Appellant
should be bound by the original plea agreement. On December 27, 2005, an order was
entered denying Appellant's November 28th motion to impose the original six year
Appellant then filed a motion to set aside the “illegal” December 27th
order. Following a February 2006 hearing on the motion, the trial court again rejected
Appellant's claim that the trial court only had the authority to impose the original six year
Both Galusha and [Stallworth v. Commonwealth, 102 S.W.3d
918 (Ky. 2003)] stand for the proposition that the court lacks
the authority to amend a final sentence in exchange for shock
probation. That did not happen in this case. The terms of the
agreement were known by everyone from the beginning and
those terms included six years to serve; twelve if probated.
Moreover, the ten-day limit on the trial court's ability to
amend a final judgment as outlined in [Silverburg v.
Commonwealth, 587 S.W.2d 241 (Ky. 1979)] was not
violated because this court did nothing but enforce the terms
of the original judgment entered on September 19, 2003. The
original judgment outlines the parties' plea bargain, and plea
bargains follow the general laws of contract. Both parties
must be bound by the plea bargain. (citations omitted).
However, the trial court amended Appellant's sentence to ten years to reflect the
maximum possible penalty available under any one of Appellant's Class C felonies. This
Relying on this Court's opinion in Galusha, Appellant continues to argue
that the trial court had no authority or jurisdiction to alter the original judgment at the
time it granted shock probation or at the time it revoked probation. Appellant claims that
although the plea agreement recommended a sentence of twelve years in the event
probation was granted, he was in fact only sentenced to six years and the court
subsequently lost the power after ten days to amend the sentence. See Silverburg, supra.
We need not reach the Galusha issue because we find that the trial court
never properly vacated the November 28th order sentencing Appellant to six years'
imprisonment. Immediately prior to the November 28th hearing, Appellant tendered his
motion to impose the original six year sentence. The trial court did exactly that during
the hearing, thus presumably granting the motion. Thereafter, the Commonwealth did
not file a CR 59.05 motion to alter amend or vacate the judgment, but rather filed only a
response to Appellant's earlier motion. The trial court apparently agreed with the
Commonwealth's position and entered the December 27th order denying Appellant's
motion. However, it is clear from the record that the trial court had already ruled on the
motion as evidenced by the November 28th order imposing the six year sentence.
Further, a review of the December 27th order leads to the inescapable conclusion that the
trial court neither vacated the six year sentence nor formally imposed a twelve year
sentence. See Murrell v. City of Hurstborne Acres, 401 S.W.2d 60 (Ky. 1966).
As a result, we are compelled to conclude that the trial court lost
jurisdiction to amend the six year sentence ten days following the entry of the November
28th order imposing such penalty. See Silverburg, supra; CR 59.05; CR 52.02.
Therefore, the February amended judgment is void and Appellant is bound only by the
six year sentence.
The February 28, 2006, order of the Jefferson Circuit Court sentencing
Appellant to ten years' imprisonment is vacated and the November 28, 2005 order is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Ben Gary, Pro Se
St. Mary, Kentucky
Gregory D. Stumbo
George G. Seelig
Assistant Attorney General