KRISTI RAY v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 7, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
PRIOR OPINION OF November 24, 1999, WITHDRAWN
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000230-MR
and NO. 1998-CA-000570-MR
KRISTI RAY
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 94-CR-00058
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER1, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Kristi Ray, brings this consolidated appeal
from both the trial court’s denial of her CR 60.02(e) motion to
set aside an order which vacated an earlier order granting shock
probation and from the trial court’s denial of her RCr 11.42
motion to vacate the judgment on the basis of ineffective
assistance of counsel.
We affirm on both appeals.
Kristi Ray was indicted on charges of first-degree
burglary and theft by unlawful taking over $300.00.
1
After
Judge Barber was substituted for Judge Gardner due to Judge
Gardner’s departure from the Court.
initially entering a not guilty plea at the arraignment, she
agreed to enter a guilty plea to the amended charge of thirddegree burglary.
The trial court accepted the plea, and on
January 10, 1997, sentenced her to incarceration for a term of
three years.
On February 10, 1997, she moved for shock
probation, and on February 14, 1997, the motion for shock
probation was granted.
On February 25, 1997, the trial court
entered a new order which set aside the order of February 14
granting shock probation because the order of February 14 “was
entered in error.”
On December 17, 1997, Kristi Ray filed a CR
60.02(e) motion to set aside the order which vacated the order
granting shock probation.
January 13, 1998.
The CR 60.02 motion was denied on
On December 19, 1997, Kristi Ray filed a
motion to vacate, correct or set aside her sentence pursuant to
RCr 11.42, citing alleged instances of ineffective assistance of
counsel.
On March 2, 1998, following an evidentiary hearing, the
trial court denied the RCr 11.42 motion.
The denial of each
motion was appealed, and the appeals were consolidated by order
of this Court on March 31, 1998.
With regard to the various orders concerning shock
probation, Kristi Ray argues that under CR 60.02(e), the trial
court’s order of February 25 setting aside shock probation was
void under CR 59.05 which states, “A motion to alter or amend a
judgment, or to vacate a judgment and enter a new one, shall be
served not later than 10 days after entry of the final judgment.”
CR 59.05 is applicable to criminal cases under McMurray v.
Commonwealth, Ky. App., 682 S.W.2d 794 (1985).
Kristi Ray
contends, therefore, that she is entitled to shock probation per
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the order entered February 14 because the February 25 order was
void.
On the other hand, the trial court, in its findings of
fact and conclusions of law, indicated that the February 25 order
merely corrected a clerical error in the February 14 order, and
appellant was not entitled to shock probation.
RCr 10.10 and CR
60.01 state in relevant part, “Clerical 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 . . .”
Kristi Ray contends that this
was not a clerical error, and CR 60.01 cannot be used to correct
mistakes that attack the party’s fundamental right to a judgment
at the time it was entered, citing Jude v. Morwood Sawmill, Inc.,
Ky. App., 726 S.W.2d 324 (1987).
In Jude, two defendants were
named in a lawsuit, but the singular word “defendant” appeared in
the judgment.
The trial court later amended the judgment to read
“defendants” (plural), claiming the “s” had been left off in the
original judgment through clerical error.
This Court concluded
that changing the judgment to include an additional defendant was
not a clerical error because it affected Harrison Jude’s
fundamental right to judgment at the time it was entered.
Id.
The record in our case indicates that the motion for
shock probation was filed on February 10, 1997, and an order was
prepared and entered on February 14, 1997, granting the same.
Kristi Ray’s attorney, or his office, was notified orally that
the order was entered in error and would be corrected.
On
February 19, 1997, the Commonwealth Attorney, unaware that the
order was entered in error, filed a motion for a hearing on
additional terms and conditions of shock probation.
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On the same
date, Kristi’s attorney moved the court to reconsider its
decision denying Kristi Ray shock probation.
Both motions were
filed within ten days, but the correct order denying the motion
for shock was not entered until February 25, 1997, which was more
than ten days after the order became final.
Thus, the question
before the court is whether or not the trial court had the
authority to amend the original judgment as a correction of a
clerical mistake after the judgment had become final.
Our Supreme Court had the same issue before it in
Cardwell v. Commonwealth, Ky., _____ S.W.3d _____ (2000).
In
Cardwell, the jury convicted the defendant of second-degree
manslaughter and fourth-degree assault with recommended sentences
of ten years and one year, respectively.
The judge stated on the
record that the sentences were to be served concurrently, but
consecutively with a previously suspended sentence of five years,
for a total time of fifteen years to be served.
The court’s
written judgment and sentence, however, made no mention of either
concurrent or consecutive sentences.
The Department of
Corrections calculated the defendant’s release date on a ten-year
total sentence (all concurrent) in accordance with KRS 532.110(2)
which states that if the judgment is silent, then the sentences
run concurrently.
Eight months after the original judgment, the trial
court issued an “Amended Judgment And Sentence” to correct, or to
add the language that the five-year suspended sentence was to be
served consecutive to the ten-year sentence.
The Department of
Corrections recalculated the defendant’s release date and the
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defendant appealed, contending there was a substantial change in
the judgment, not just a mere clerical correction.
The Cardwell Court explained that “the 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 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.’”
Cardwell, _____ S.W.3d at _____,
quoting Buchanan v. West Kentucky Coal Company, Ky., 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. . . .”
Cardwell, _____ S.W.3d at _____, quoting
46 Am. Jur. 2d, Judgments § 167.
The omission in the original
judgment of a provision that Cardwell’s sentence was to run
consecutive with his previous sentence was a mistake made in
reducing the oral judgment to writing.
The omission was not the
product of judicial reasoning and determination.
It was a
clerical error.
We believe the error in Kristi Ray’s case was also a
clerical error.
Her attorney was notified before the order
became final that there was a mistake.
Her attorney even filed a
timely motion, along with the Commonwealth, to reconsider, which
confirms that the attorney had timely notice of the error and the
entry of a corrected judgment was a mere clerical correction, and
thus will stand.
With regard to the RCr 11.42 motion, Kristi Ray argues
that her counsel was ineffective due to the facts that her
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original attorney accepted a position with the Commonwealth
Attorney’s office, and the new attorney did not request a hearing
on the potential conflict of interest; further, that counsel was
ineffective because he argued for home incarceration, a
punishment that was statutorily impermissible; and that he failed
to file a motion contesting the February 25 order of the court.
We disagree with Kristi Ray’s contentions and affirm the decision
of the trial court to deny the RCr 11.42 motion.
To sustain an allegation of ineffective assistance of
counsel, there must be a showing of deficient performance on the
part of trial counsel, and there must be a finding of prejudice
resulting from the deficient performance.
Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), accord, Centers v. Commonwealth, Ky. App., 799 S.W.2d 51
(1990).
A review of the record in the case at bar and the
findings of the court following an evidentiary hearing on the RCr
11.42 motion establishes that Kristi Ray was aware that her
original attorney had moved to the Commonwealth Attorney’s
office.
Kristi Ray expressed no reservations about the situation
at a bench conference during the proceedings.
Furthermore, her
former attorney did not participate in the prosecution of this
case in any way.
The court also found that Kristi Ray had
knowingly and voluntarily entered a plea of guilty.
Also counsel
had moved the court to reconsider the order of February 25 and to
consider converting the remainder of the appellant’s sentence to
home incarceration.
After an evidentiary hearing on the RCr
11.42 motion, the court simply found the testimony of counsel to
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be more credible.
Because there was an evidentiary hearing in
this case, our sole issue on appeal is whether the court below
acted erroneously in finding the appellant received effective
assistance of counsel.
S.W.2d 506 (1983).
Ivey v. Commonwealth, Ky. App., 655
In this case, there is no basis to conclude
the trial court acted erroneously in determining Kristi Ray had
received effective assistance of counsel.
For the foregoing reasons, the Judgment of the Pike
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Anderson
Lexington, Kentucky
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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