JOSEPH A. MCINTYRE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 11, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000444-MR
JOSEPH A. MCINTYRE
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 98-CR-00186
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
Joseph A. McIntyre brings this pro se appeal from
a February 7, 2002 Opinion and Order of the Franklin Circuit
Court.
We affirm.
In December 1999, appellant pled guilty to the offenses
of trafficking in a controlled substance first degree,
trafficking in marijuana less than eight ounces, and persistent
felony offender second degree.
Appellant was sentenced to a
total of ten years’ imprisonment.
In November 2001, appellant
filed an Ky. R. Crim. P. (RCr) 11.42 motion to vacate sentence.
Without an evidentiary hearing and without appointment of
counsel, the circuit court denied the motion, thus precipitating
this appeal.
Appellant alleges that the circuit court committed
reversible error by summarily denying his RCr 11.42 motion.
Appellant initially contends “the grand jury under Count 3 of its
indictment charged appellant [with] committing a class B felony
under KRS 532.080, an offense that does not exist by law.”
He
maintains that persistent felony offender represents an
unconstitutional “status.”
We think it well recognized that the
persistent felony offender statute (Kentucky Revised Statutes
532.080) creates a constitutional status, which subjects such
offender to an enhanced penalty.
Ky., 573 S.W.2d 657 (1978).
See Hardin v. Commonwealth,
We thus view appellant’s contention
to be without merit.
Appellant also alleges that the circuit court committed
reversible error by amending its judgment of conviction.
circuit court amended the judgment as follows:
[U]pon review of the record of this case the
Court has discovered a clerical error. The
Defendant’s Judgement states he was sentenced
for Trafficking in a Controlled Substance,
1st degree for five (5) years and Ten (10)
years for Persistent Felony Offender, 2nd
degree. The sentences are to run
concurrently with the a [sic] five year
sentence in 98-CR-00139, for a total of ten
(10) years. The Judgement should state that
the Defendant is sentenced to five (5) years
on Trafficking in a Controlled Substance, 1st
degree, Class C Felony, enhanced to ten (10)
years by Persistent Felony Offender, 2nd
degree, Class B felony. This sentence is to
run concurrently with five (5) year sentence
in 98-CR-00139, for a total of ten (10)
years. The Defendant has not been prejudiced
by this clerical mistake. The Defendant’s
-2-
The
the [sic] time of incarceration remains ten
(10) years.
Appellant objects to the above amendment of the
judgment.
He suggests that the circuit court was without
jurisdiction to so amend the judgment.
We view the circuit
court’s revision of the judgment as a mere correction of a
clerical mistake, which may be done by the court sua sponte at
any time.
Ky. R. Civ. P. 60.01.
We also observe that the
correction of the judgment in no way prejudiced appellant;
appellant’s sentence of imprisonment remained the same.
In sum, we are of the opinion that appellant’s
allegations were refuted upon the face of the record.
Thus, the
circuit court did not commit error by denying appellant’s RCr
11.42 motion without evidentiary hearing and without appointment
of counsel.
See Trice v. Commonwealth, Ky. App., 632 S.W.2d 458
(1982).
For the foregoing reasons, the order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph A. McIntyre, Pro Se
West Liberty, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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