OPINION OF THE COURT BY JUSTICE VENTERS - REVERSING AND REMANDING
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JOSHUA MACHNIAK
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2007-CA-000710-MR AND 2009-CA-001012-MR
LETCHER CIRCUIT COURT NO. 05-CR-00098
COMMONWEALTH OF KENTUCKY'
APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
REVERSING AND REMANDING
Appellant, Joshua Machniak, appeals from an opinion of the Court of
Appeals which affirmed an order of the Letcher Circuit Court revoking a
probated three-year sentence and sentencing him instead to twenty years'
imprisonment . Although it was not reflected in the Judgment and Sentence On
Plea Of Guilty, the twenty-year sentence was consistent with Appellant's plea
agreement. We granted discretionary review to determine whether the plea
agreement in this case was consistent with the applicable statutes, and
whether a plea agreement which called for alternate sentences based on
whether Appellant violated his probation is a violation of double jeopardy.
Because we find that the plea agreement violated the statutory requirements of
KRS 532.1 10(l), and KRS 532 .030 as interpreted in Commonwealth v. Tiryung,
709 S .W .2d 454 (Ky. 1996), we vacate the judgment entered thereon, and
remand the case to the Letcher Circuit Court for proceedings consistent with
this opinion.
RELEVANT FACTS
Appellant was indicted by the Letcher County Grand Jury on twenty-nine
counts, including twelve Class D felonies . I The Commonwealth offered
Appellant a plea agreement under which it would recommend concurrent
three-year sentences on all twelve felonies, to be probated for three years, in
return for a guilty plea to all charges . If, however, Appellant's probation was
revoked, the twelve three-year sentences would run consecutively. The written
offer clearly stated that "all sentences are to be served concurrently with one
another unless probation is revoked in which case all sentences are to be
served consecutively with one another ." With advice of counsel, Appellant
accepted. On April 12, 2006, Appellant pled guilty in open court .
At the sentencing hearing on May 24, 2006, the trial court sentenced
Appellant to a total prison sentence of three years, probated for a period of
three years in accordance with the plea agreement . After announcing the
sentence, the trial judge stated that if probation was revoked, "then the felony
1 These charges included six counts of third-degree burglary, three counts of theft over
three hundred dollars, three counts of theft under three hundred dollars, two
counts of first-degree criminal mischief, four counts of third-degree criminal
mischief, one count of third-degree assault, one count of resisting arrest, one count
of second-degree fleeing or evading the police, one count of disorderly conduct, one
count of public intoxication, two counts of third-degree criminal trespass, one count
of third-degree possession of a controlled substance, one count of possession of less
than eight ounces of marijuana, one count of possession of drug paraphernalia, and
one count of possession of a controlled substance not in a proper container.
charges will run consecutively to one another. That means one to begin. after
completion of the other . You understand that, sir?" Appellant answered "yes ."
However, the written judgment and sentencing order entered by the trial
court failed to provide that the felony sentences would all run consecutively if
Appellant violated the terms of his probation . The written judgment and
sentencing order only stated that Appellant was "sentenced to imprisonment
for a maximum term of three years probated three years ." A separate "order of
probation" was signed by the trial court and entered the same day, reciting the
conditions that Appellant would have to abide by during the probationary
period . That order, also, contains no reference to the agreement that upon
revocation of probation, the felony sentences would be changed from
concurrent sentences to consecutive sentences . Both orders became final . The
judgment and sentencing order was never corrected or amended to add the
omitted term of the plea agreement.
Appellant subsequently violated the terms of his probation. On February
7, 2007, the trial judge entered an order revoking Appellant's probation and
sentencing him to imprisonment for twenty years, pursuant to the plea
agreement.2 Appellant appealed the revocation and the - imposition of the
"enhanced" sentence to the Court of Appeals.
2 We note that the trial court sentenced Appellant to three years on each of the twelve
Class D felony counts to run consecutively which would lead to a total sentence of
thirty-six years . However, the trial judge capped Appellant's total sentence at a
maximum of twenty years per KRS 532 .110(c) and KRS 532 .080(6)(b) .
The Court of Appeals affirmed the order of probation revocation. The
Court of Appeals held that the trial court's failure to include the language
concerning the consecutive sentences was simply a clerical error. In its view,
pursuant to RCr 10.10 and Caldwell v. Commonwealth, 12 S . W. 3d 672 (Ky.
2000) the order of probation revocation was an acceptable means for curing the
erroneous judgment. The Court of Appeals also dismissed Appellant's double
jeopardy argument, finding that he had no legitimate expectation in the finality
of the sentence because the underlying judgment was subject to his
compliance with the terms of his probation. The Court of Appeals also
disagreed with Appellant's contention that, by "changing" his sentence from
three years to a total of twenty years, the trial court violated Tiryung, 709
S.W .2d 454 . It reasoned that the escalated punishment was an original part of
his plea agreement, to which Appellant had voluntarily bound himself.
For the reasons set forth below, we now reverse the Court of Appeals.
ANALYSIS
When a conflict exists between oral statements of the presiding judge
and an order or judgment reduced to writing, the written order or judgment
prevails. Commonwealth v. Taber, 941 S .W .2d 463, 464 (Ky. 1997) ;
Commonwealth v. Hicks, 869 S .W .2d 35, 37-38 (Ky. 1994) . However, the entry
of an amended judgment to correct the final judgment is permissible under RCr
10.10 as long as the error being corrected was a clerical error. Cardwell, 12
S .W.3d at 675 . A judicial error, however, is not subject to correction through
an amended judgment . Viers v. Commonwealth, 52 S .W.3d 527, 529 (Ky.
2001) .
We agree with the Court of Appeals that omitting from the final judgment
the stipulation that the concurrent sentences would be altered to run
consecutively in the event of a probation revocation, is clearly the kind of error
identified in Cardwell as clerical, and thus correctable . We note, however, that
while the trial judge had the authority to correct the error, he never did so.
The omission was never cured by the entry of an amended final judgment . The
order of probation revocation imposed a sentence not reflected in the original
judgment. Thus, the inconsistency between the final judgment fixing the
sentence and the sentence imposed in the revocation order persists.
The trial judge should have formally amended the judgment to reflect the
sentencing arrangement he had intended to impose. The Court of Appeals
believed that the order of probation revocation was sufficient to amend the
judgment per Caldwell. While we do not agree, the issue is purely academic
because the trial judge still has the authority to correct the original judgment
sentence . 3 Our disapproval of the sentence imposed goes beyond the question
of whether the probation revocation order suitably cured the erroneous
judgment. As further explained below, we reverse the Court of Appeals
because the dual sentences provided for in the plea agreement, which the trial
court orally imposed and presumably intended to include in the final judgment,
3 RCr 10 .10 provides that clerical mistakes in judgments may be corrected by the trial
court "at any time," and during appeal with leave of the appellate court.
violate KRS 532 .030 and KRS 532 .110(1) . Thus, even if the clerical error was
properly corrected, the result would be a final sentence that we cannot uphold .
At the sentencing hearing, the trial court accepted the plea agreement
between the Commonwealth and Appellant, and orally imposed the set of two
sentencing alternatives described above : twelve three-year prison sentences, to
be served concurrently, but probated for three years; if probation is revoked,
twelve three-year prison sentences to be served consecutively.
KRS 532.030(3) provides in pertinent part:
When a person is convicted of an offense other than a
capital offense or Class A felony, he shall have his
punishment fixed at:
(a) A term of imprisonment authorized by this chapter[.]
KRS 532 .110(1) provides in pertinent part:
When multiple sentences of imprisonment are imposed
on a defendant for more than one (1) crime . . . the
multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of
sentence[.]
(emphasis added)
In Tiryung, 709 S .W .2d 454, at sentencing, the trial court placed a
defendant on probation without fixing the term of imprisonment to be served in
lieu of probation . We reversed, holding that, "The language of KRS 532 .030 is
mandatory. Upon conviction, a person `shall have his punishment fixed' at
death, imprisonment or fine, as may be appropriate depending on the offense
committed." Id. at 455 . In that statutory context, "fixed" means "rendered
stable or permanent," "definitely and permanently placed," and "not fluctuating
or varying; definite ." Random House Webster's College Dictionary 504 (1991) .
Given the dual sentencing alternatives imposed by the trial court, it is clear
that the punishment was not "fixed" as the statute requires .
The sentencing arrangement which the court and the parties attempted
to implement here is an even more explicit violation of KR.S 532 .1 10(1) . That
statute unequivocally requires that the trial judge "determine at the time of
sentence" whether the prison terms shall be served concurrently or
consecutively. The statute does not allow the trial judge the option of deferring
that determination to a later date, or conditioning the decision on the
happening of some future event. Arguably, the dual sentencing arrangement
imposed on Appellant avoids some of the mischief that concerned this Court in
Tiryung, where the length of the prison sentence was not fixed in any way at
the time ofjudgment.4 However, it does not avoid conflict with the mandate of
KRS 532 .110(1) .
The Court of Appeals held that Appellant was bound to the twenty-year
sentence because it was consistent with his plea agreement. We rejected a
similar argument in McClanahan v. Commonwealth, 308 S .W .3d 694 (Ky.
l - o noica otherwise openly invites the trial court to impose a punishment greater tnan
that appropriate for the initial offense because of the subsequent offense which
precipitates the revocation of probation. Although the offense which constitutes
violation of probation and grounds for revocation may be a new criminal offense
calling for punishment in its own right, it is not grounds for providing a greater
punishment for the original offense which was probated. The new offense should be
separately punished. The trial court is precluded from adding the "weight of
subsequent offenses . . . to the penalty of the former offense ." Tiryung, 709 S.W .2d
at 456 .
2010), where we declined to enforce a plea agreement that called for a sentence
that violated the maximum punishment established by KRS 532 .110(c) . There,
we held "[b]ecause the plea agreement involved here contravenes KRS
532 .110(1)(c) and KRS 532 .080(6)(b), it is a contract which our courts may not
enforce ." Id. at 701 . We hold now that KRS 532 .1 10(l) is due that same
measure of respect. The trial court's discretion to fix multiple terms of
imprisonment to run either concurrently or consecutively must be exercised
when the sentence is fixed. The parties cannot by agreement authorize the
trial court to do other than what the statute requires . 5
The Commonwealth argues in support of enforcing the plea agreement in
this case that "these kinds of pleas" are very useful in promoting the settlement
of cases on the heavy criminal dockets of our circuit courts . We are told "it's a
little more enticing to defendants to say your sentence is three years," as
opposed to twenty years. The Commonwealth contends, "The reality is that
twenty years sounds like a big number ." Notwithstanding the plea agreement's
conflict with KRS 532 .1 10(l), we reject the use of such plea agreements as
marketing devices to encourage defendants to plead guilty.
First, we note that the three year sentences "to be served concurrently,"
as stated in the written plea agreement, are purely illusory. Under the
agreement, the only sentences that run "concurrently" are those that would
never be served . No sentence would be served at all unless probation is
5 KRS 532.110(2) resolves the question that would arise when the trial court declines
to exercise its discretion at the time of sentence . The sentences run concurrently .
revoked, and then the sentence is not three years; it is twenty years . Second,
we believe that packaging plea agreements with the allure of a non-existent
minimal sentence, so that defendants find them "enticing" is antithetical to the
objective of a knowing and intelligent guilty plea . If there was ever a moment
in a person's life that requires a level-headed and realistic understanding of the
consequences, it would be when pleading guilty to crimes requiring a twentyyear prison sentence . We do not suggest that Appellant was misled or that he
did not understand his plea agreement. We simply announce that we will not
condone a plea agreement strategy that purposefully detracts from the candor
required for such a serious occasion, and disguises the, true consequences of a
guilty plea behind the mask of an illusory sentence .
We recognize that part of the allure of this kind of plea agreement is that,
while on probation, a defendant may benefit by the perception, among
prospective employers and others, that his crimes merited only a three-year
sentence, as opposed to a twenty-year sentence. We find little comfort in that
kind of advantage because it simply foists the illusory aspect of the three-year
sentence upon an unsuspecting public .6
6 This is not to say that a defendant could not be presented with two distinct options:
one to say he may take three years on twelve counts to run concurrently without
probation, and the other to say that he may take twenty years consecutively (as
capped by KRS 532 .110) with probation. If the defendant knowingly and willingly
chooses the latter, then the final judgment, would, of course, "fix" the sentence at a
twenty year sentence . We in no way criticize this normal give and take of the plea
bargaining process .
Because the sentencing arrangement imposed pursuant to the plea
agreement? violates KRS 532 .030 by failing to "fix" the sentence and violates
KRS 532 .110(1) by failing to determine at the time of sentence the concurrent
or consecutive nature of the sentences, we reverse the opinion of the Court of
Appeals and vacate the judgment of the Letcher Circuit Court. Because we
base our decision on purely statutory grounds, and recognize the "longobserved principle" that constitutional adjudication should be avoided unless
strictly necessary for a decision in the case, we decline to address Appellant's
double jeopardy and other constitutional claims .
CONCLUSION
For the reason set forth above, the opinion of the Court of Appeals is
reversed, and this matter
is
remanded to the Letcher Circuit Court for further
proceedings consistent with this opinion .
Minton, C.J., Abramson, Cunningham, and Schroder, JJ., concur.
Noble, J., concurs in result only by separate opinion . Scott, J ., dissents by
separate opinion .
7 For purposes of this opinion, we consider the sentence imposed to be the intended
sentence included in the plea agreement and announced at the sentencing hearing,
rather than the one reflected in the erroneous judgment .
8 Spees v. Kentucky Legal Aid, 274 S .W .3d 447,449 (Ky. 2009) (citing Stephenson v.
Woodward, 182 S .W.3d 162, 168 (Ky. 2005)).
NOBLE, J., CONCURRING IN RESULT ONLY: I concur in result with
Justice Venters' Opinion. However, the error here is too serious to be merely
"clerical ." The Commonwealth had ample opportunity to ask that the sentence
be modified to reflect the term it really wanted, but did not do so . Instead, the
sentence refers to a fixed term of three years, with three years probation. In
the usual scenario, if a defendant has his probation revoked, the sentence
imposed is the one set at sentencing. Failing to modify the sentence here locks
in that sentence ; it does not give the court a "do-over." This sentencing
happened outside the timeframe allowed for modification, and it is therefore
the only sentence that may be imposed on Appellant .
SCOTT, J ., DISSENTING : I agreed with the majority in McClanahan v.
Commonwealth, 308 S .W.3d 654 (Ky. 2010) because the "hammer" clause in
that plea agreement was implemented by the trial judge without the exercise of
any discretion as is required by KRS 532 .010(1), 533 .010(2), 532 .050(1), KRS
532 .110(1), and RCr 11 .02, and the sentence-due to the defendant's violation
of the agreement-resulted in an unlawful sentence . McClanahan, however,
dealt with the consequences of the defendant's violation of the plea agreement,
Id. at 696-97, while here, we are dealing with a defendant's violation of the
court's actual sentence .' And here, the majority reverses, essentially because
the trial court fixed the sentence in such a way that the defendant would
' The majority agrees that the failure to include the alternative sentence in the
judgment (if probation were violated) was a clerical error, subject to correction by
the trial court via RCr 10 .10 and Caldwell v. Commonwealth, 62 S.W.3d 672 (Ky.
2000) .
control whether the sentences would be consecutive or concurrent and served
in an institution or fully probated. Thus, I must dissent .
I do so because trial courts need as many tools as possible within the
statutory guidelines for sentencing the multitude of differing defendants which
come before them . Some of these tools (sentencing scenarios) work for some,
while others are needed for those more hardened or recalcitrant . Their object,
however, when used in connection with probation or conditional discharge, is
the same-construct a sentencing package within the statutory guidelines that
will assist the defendant in controlling his conduct in such a manner that
probation or conditional discharge will work for that particular defendant,
assuming probation or conditional discharge is a viable alternative sentence for
the defendant. Trial courts don't always have to use them, but having themor threatening their use-can be a useful tool in the successful rehabilitation of
an individual .
Here, Appellant was charged with twenty-nine separate crimes : six
counts of third-degree burglary, three counts of theft over three hundred
dollars, three counts of theft under three hundred dollars, two counts of first
degree criminal mischief, four counts of third-degree criminal mischief, once
count of third-degree assault, one count of resisting arrest, one count of
second-degree fleeing or evading the police, one count of public intoxication,
two counts of third-degree criminal trespass, one count of third-degree
possession of a controlled substance, one count of possession of less than eight
ounces of marijuana, one count of possession of drug paraphernalia, and,
finally, one count of possession of a controlled substance not in a proper
container.
He was probated on June 12, 2006, and his probation was revoked on
February 7, 2007-bu.t only after he had violated his probation numerous
times. The last was on October 19, 2006, when he was arrested for public
intoxication, second-degree possession of a controlled substance, seconddegree escape, menacing, criminal mischief, third-degree criminal trespass,
alcohol intoxication (first and second offense), and second-degree disorderly
conduct. 2 A urinalysis taken the next day found traces of marijuana, cocaine,
hydrocodone, and hydromorphone in his system. Upon revocation, the trial
court, with one adjustment, implemented the twenty-year sentence .
In reversing the trial court's sentence, the majority now forbids
alternative sentences dependent upon a defendant's compliance with the terms
of probation or conditional discharge, holding that KRS 532 .030 requires the
sentence to be "fixed" at the time of sentencing and that KRS 532 .1 10(l)
requires the trial judge to "determine at the time ofsentence whether the prison
terms shall be served concurrently or consecutively." (Emphasis added) .
As to KRS 532 .030, 1 see no reason to hold that the sentence here was
not fixed at the time of sentencing. In fact, it was . If he complied with the
terms of probation, his sentence was three years, if he did not, it would be
2
He had been previously arrested on July 12, 2006 for alcohol intoxication and
possession of a controlled substance.
twenty! All of this was fixed at the sentencing and as Appellant was charged
with, and pled to, twenty-nine different charges, twenty years was a permissible
sentence . The fact that the Court lowered Appellant's sentence to three years
probation provided he stay clean and sober, keep out of people's homes and
buildings, and leave them alone, was a bonus for him and one to which he did
not objectthat is, until he went about his merry criminal ways.
As to the concurrency issue, KRS 532 .1 10(l) says that "the multiple
sentences shall run concurrently or consecutively as the court shall determine
at the time of sentence ." (Emphasis added) . Again, the trial court did settle
this issue at the time of sentencing . It was to be run concurrently if he
complied, but consecutively if he did not. What I cannot read into the statute
is that it has to be one way or the other at the time of sentencing and must
remain so, notwithstanding the multitude of contingencies yet to occur.
It just seems to me, we are reading something into the statute that the
legislature did not intend . Moreover, in so doing, we are unnecessarily
restricting sentencing tools our trial courts need to inhibit conduct against
public safety, while at the same time inhibiting contingencies that could assist
other defendants in mending their ways. For these reasons, I respectfully
dissent.
COUNSEL FOR APPELLANT:
Joseph Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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