STEPHENS (GARY DAMON) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 12, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000502-MR
GARY DAMON STEPHENS
v.
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RUSSELL D. ALRED, JUDGE
ACTION NO. 97-CR-00005
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, KELLER, AND MOORE, JUDGES.
MOORE, JUDGE: Gary Damon Stephens appeals the Harlan Circuit Court’s
order granting the Commonwealth’s CR1 60.02 motion for relief from judgment.
After a careful review of the record, we reverse because Stephens’s indictment
remained pending during his involuntary hospitalization, thus warranting his award
of jail time credit. Alternatively, we reverse because the Commonwealth failed to
1
Kentucky Rule of Civil Procedure.
bring its motion within a reasonable time and because the Commonwealth’s claim
could have been raised on direct appeal. We remand with instructions for the
circuit court to reinstate the original judgment against Stephens.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Stephens was indicted on two counts of murder, one count of
tampering with physical evidence, one count of theft by the unlawful taking of
property valued over $300.00, and one count of third-degree burglary. Stephens
initially entered a not guilty plea. The following month, the trial court entered an
order directing Stephens to be sent to the Kentucky Correctional Psychiatric Center
(KCPC)
for examination to determine whether or not [he was]
competent to stand trial (KRS[2] 504.090) and to
determine if he, at the time of the alleged commission of
the offenses, ‘as a result of mental illness or retardation,
. . . lacked substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of law.’ KRS 504.020.
A review of the record before us on appeal reveals that in 1998 the
trial court determined that Stephens was not competent to stand trial, so the court
ordered him to be involuntarily hospitalized for an initial 360-day period, pursuant
to KRS Chapter 202A, in an effort to medicate him and provide him with medical
treatment so he would become competent to stand trial. Over the next several
years, Stephens was repeatedly re-evaluated to determine his competency. He was
returned to his involuntary hospitalization due to his continued incompetency to
2
Kentucky Revised Statute.
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stand trial and his diagnoses as suffering from chronic paranoid schizophrenia,
having a history of substance abuse, and being a danger to himself and others. It
does not appear that the indictment against him was dismissed during his multiple
hospitalizations. He was ultimately determined to be competent to stand trial in or
around December 2001.
In 2002, the Commonwealth made an offer on a plea of guilty but
mentally ill. Stephens moved to enter a guilty but mentally ill plea, in accord with
the Commonwealth’s offer and pursuant to North Carolina v. Alford,3 400 U.S. 25,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In exchange for his plea, the Commonwealth
agreed to recommend a total sentence of twenty years for all of the counts against
Stephens.
In November 2002, the trial court entered its judgment. It found
Stephens competent to plead guilty, and that his plea of guilty but mentally ill was
voluntarily, knowingly, and intelligently entered. The trial court accepted
Stephens’s plea of guilty but mentally ill and sentenced him to: twenty years of
imprisonment for each of the murder convictions; five years of imprisonment for
the tampering with physical evidence conviction; five years of imprisonment for
the theft by unlawful taking of property valued over $300.00 conviction; and five
years of imprisonment for the third-degree burglary conviction. These sentences
were ordered to be run concurrently for a total of twenty years of imprisonment.
3
This type of plea, known as an Alford plea, “permits a conviction without requiring an
admission of guilt and while permitting a protestation of innocence.” Wilfong v. Commonwealth,
175 S.W.3d 84, 103 (Ky. App. 2004).
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Additionally, and pertinent to the issues raised in the present appeal, the trial
court’s judgment provided as follows:
[T]he Defendant is hereby credited with time spent in
custody prior to sentence, namely 2134 days as certified
by the jailer of the Harlan County Detention Center
towards service of the maximum term of imprisonment
(or toward payment of a fine at the rate of $5 per day).
Jail time credit includes the days of: 348 for 1997; 365
for 1998; 365 for 1999; 365 for 2000; 365 for 2001 and
326 for 2002.
The “Certification of [the] Harlan County Jailer as to Jail Time
Served,” which was in the record immediately following the judgment, also
provided that “most time served was in K.C.P.C.” (Capitalization changed).
More than seven years after the trial court’s judgment was entered, the
Commonwealth filed a “Motion to Correct Jail Time Credit and Good Time” in the
circuit court. (Capitalization changed). The Commonwealth filed its motion
pursuant to CR 60.02 and alleged that Stephens “was mistakenly given an
excessive amount of jail time credit for which he was not entitled, and that this
resulted in a miscalculation not only on the time to be served on his sentence, but
on the other credit to which he was not entitled.”
The circuit court granted the Commonwealth’s motion, finding that
the court had improperly awarded Stephens jail time credit “for the time that he
was held pursuant to KRS 202(A),” i.e., while he was involuntarily hospitalized,
“during the pendency of [his] case. Commonwealth v. Todd, 12 S.W.3d 695 (Ky.
App. 1999).” The court found that the Involuntary Hospitalization Orders in the
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case showed Stephens was held pursuant to KRS 202(A) for the time period of
“October 14, 1998 until October 5, 2001.” The circuit court noted that
[t]he Commonwealth Attorney advised the Court that he
was not aware that the credit was given to [Stephens] for
the time that he was hospitalized pursuant to KRS
202(A), until only recently when the family of the
murder victims . . . brought it to his attention that
[Stephens] was to serve out on February 1, 2010. The
Commonwealth advised that upon notification by the
victims’ families he became aware that the Department
of Corrections was giving [Stephens] credit for the time
period that he was hospitalized under the 202(A) Orders.
As such, he moved to correct this mistake in jail credit.
In granting the Commonwealth’s CR 60.02 motion, the circuit court
found that Stephens was not permitted to receive credit for the time he was
involuntarily hospitalized, pursuant to Todd. The court found that the
circumstances of the case were extraordinary in nature, and they warranted
granting the Commonwealth’s motion. Thus, the circuit court held that “the
original judgment should have awarded only 1054 days toward [Stephens’s]
service of his sentence and as such [the court] amended [it] to reflect the proper
days [of] credit in this matter of 1054 days [of] service as of November 22, 2002.”
The circuit court further reasoned that “[i]t appeared that the presiding judge
simply placed a jail time credit in an order without any type of discussion or
opportunity for parties to object or to review the matter.”
Stephens now appeals, contending that: (a) the circuit court erred to
his substantial prejudice by granting the Commonwealth’s CR 60.02 motion to
correct jail time credit based upon Todd and thereby reducing his jail time credit
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from 2134 days to 1054 days; and (b) the circuit court erred to his substantial
prejudice by granting the Commonwealth’s CR 60.02 motion even though the
motion was untimely filed.
II. STANDARD OF REVIEW
We review a circuit court’s decision granting a CR 60.02 motion for
an abuse of discretion. See Kurtsinger v. Board of Trustees of Ky. Retirement
Systems, 90 S.W.3d 454, 456 (Ky. 2002). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
We note that CR 60.02(f), upon which the circuit court based its
decision granting the Commonwealth’s motion, provides: “On motion a court
may, upon such terms as are just, relieve a party or his legal representative from its
final judgment, order, or proceeding [for] any . . . reason of an extraordinary nature
justifying relief. . . .” Moreover, CR 60.02 motions are required to be brought
within a reasonable time. See CR 60.02.
III. ANALYSIS
A. CORRECTION OF JAIL TIME CREDIT BASED UPON TODD
Stephens first contends that the circuit court erred to his substantial
prejudice by granting the Commonwealth’s CR 60.02 motion to correct jail time
credit based upon Todd and thereby reducing his jail time credit from 2134 days to
1054 days. In the Todd case, the Appellant was indicted and subsequently
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determined by KCPC to be incompetent to stand trial. Todd was then involuntarily
hospitalized by court order pursuant to KRS 504.110(2) and KRS Chapter 202A,
and the indictment was dismissed without prejudice. Months later, Todd was
reindicted, again determined to be incompetent to stand trial, and again he was
involuntarily hospitalized and the indictment was dismissed without prejudice.
Approximately one year later, Todd consented to be charged by information, he
did not challenge his competency to stand trial, and he entered guilty pleas to the
charges against him. Todd sought jail time credit for the time he spent
involuntarily hospitalized. The trial court granted his motion, and the
Commonwealth appealed. See Todd, 12 S.W.3d at 696.
On appeal, this Court held that the time Todd spent involuntarily
hospitalized did not qualify as jail time credit because Todd’s indictment was not
pending during the time he was involuntarily hospitalized. Specifically, the Court
noted that Todd’s indictment was dismissed each time he was ordered to be
involuntarily hospitalized. See Todd, 12 S.W.3d at 696-98. In fact, this Court
reasoned that “had the indictment been pending during [Todd’s hospitalization],
and had Todd not otherwise been released from criminal custody, he would have
been entitled to credit for his [hospital] time.” Id. at 698.
In the present case, Stephens was involuntarily hospitalized pursuant
to KRS Chapter 202A, and his indictment was pending the entire time he remained
hospitalized. Thus, pursuant to the reasoning in Todd, Stephens was entitled to jail
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time credit for this time, and the circuit court abused its discretion by granting the
Commonwealth’s CR 60.02 motion.
B. TIMELINESS OF CR 60.02 MOTION
However, even if we were to assume for the sake of argument that the
circuit court had not erred pursuant to Todd in granting the Commonwealth’s
motion, it nevertheless erred in granting the motion because it was not brought
within a reasonable time and because the Commonwealth’s claim could have been
presented on direct appeal. As previously explained, CR 60.02 requires motions
brought pursuant to that rule to be brought within a reasonable time. The
Commonwealth did not file its CR 60.02 motion until more than seven years after
the trial court’s judgment was entered. There was no reason why the
Commonwealth could not have known before that time that Stephens was being
credited for the time he spent involuntarily hospitalized, as the trial court specified
in its judgment how many days of each year since his indictment Stephens was
being credited. Further, the Commonwealth was aware that Stephens was
involuntarily hospitalized during many of those years. Thus, the Commonwealth
failed to challenge the trial court’s judgment within a reasonable time, as required
by CR 60.02.
Furthermore, we note that the Commonwealth should have challenged
the award of jail time credit on direct appeal but failed to do so. See Winstead v.
Commonwealth, 327 S.W.3d 479, 485 (Ky. 2010). Because the Commonwealth
could have and should have raised this claim on direct appeal, it is not entitled to
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CR 60.02 relief based on the claim. See McQueen v. Commonwealth, 948 S.W.2d
415, 416 (Ky. 1997) (“Civil Rule 60.02 is not intended merely as an additional
opportunity to relitigate the same issues which could reasonably have been
presented by direct appeal . . . .” (internal quotation marks omitted)); see also
Winstead, 327 S.W.3d at 488.
Accordingly, the order of the Harlan Circuit Court is reversed and the
case is remanded with the instruction that the trial court’s original judgment shall
be reinstated.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky
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