LARRY RAY SMITH v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 25, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002781-MR
AND
NO. 2001-CA-002783-MR
LARRY RAY SMITH
APPELLANT
APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 98-CR-00374
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND KNOPF, JUDGES; AND MILLER, SENIOR JUDGE.1
JOHNSON, JUDGE:
Larry Ray Smith, pro se, has appealed from an
order of the Fayette Circuit Court entered on October 3, 2001,
which denied his RCr2 11.42 motion to vacate his 25-year prison
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
sentence for incest.3
Smith also has appealed from an order of
the same court entered on November 8, 2001, which denied his CR4
60.02 motion for concurrent sentencing on his two 12-1/2 year
sentences.
Having concluded that the trial court did not err by
denying Smith relief, we affirm.
On April 7, 1998, a Fayette County grand jury returned
an indictment against Smith charging him with two counts of
incest, a Class C felony, and as being a persistent felony
offender in the second degree (PFO II).5
The underlying felony
conviction that supported the PFO II charge was a 1993
conviction for assault under extreme emotional disturbance.6
Smith was on probation for the assault conviction at the time of
the alleged incest offenses.
The incest charges involved two separate incidents
between Smith and his stepson, D. B., who was under the age of
sixteen when the offenses occurred.
Smith was tried by a jury
of the Fayette Circuit Court on August 31, 1998, and he was
convicted of all the charges contained in the indictment.
jury recommended that Smith be sentenced to terms of
The
imprisonment of ten years on each of the two convictions of
3
Kentucky Revised Statutes (KRS) 530.020.
4
Kentucky Rules of Civil Procedure.
5
KRS 532.080(2).
6
KRS 508.040.
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incest, and that each sentence be enhanced to 12-1/2 years by
the PFO II conviction, with the sentences to be served
consecutively for a total of 25 years.
At the sentencing hearing held on October 16, 1998,
the trial court sentenced Smith to 12-1/2 years on each of the
two incest convictions, with the sentences to run consecutively
for a total of 25 years.7
However, when the trial court entered
the final judgment and sentence of imprisonment on October 20,
1998, it failed to state whether the sentences were to run
concurrently or consecutively.
Smith appealed his incest
convictions to the Supreme Court of Kentucky, arguing that they
were not supported by sufficient evidence.8
The procedural melee
that followed is summarized below.
On June 2, 1999, while his direct appeal was still
pending, Smith filed a “motion to modify.”
Smith moved the
trial court “to modify the Final Judgment, Sentence of
Imprisonment entered on October 20, 1998, and to order that the
prior sentence run concurrent for a total of 20 years pursuant
7
Smith had just begun serving a three-year sentence for his 1993 assault
conviction, bringing his total combined sentence to 28 years. Smith was
initially sentenced to five years’ probation on the assault charge, however,
upon conviction of incest in 1998, Smith’s probation was revoked and he was
sentenced to an indeterminate sentence of three years on the assault
conviction. Smith’s 25-year sentence for incest was ordered to run
consecutively with his three-year sentence for assault. In addition, Smith
has a separate appeal, which is pending before this Court, pertaining to how
the sentences on the assault conviction and the incest convictions were to be
served (2002-CA-000001-MR).
8
Smith also raised allegations of prosecutorial misconduct in his direct
appeal, however, Smith did not raise any issues pertaining to his sentence.
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to KRS 532.110.”
This scant motion only referred to KRS 532.110
generally; however, at the hearing on June 11, 1999, counsel for
Smith argued that the Supreme Court’s holding in Young v.
Commonwealth,9 limited his maximum sentence to 20 years.
The
Commonwealth did not file a response to the motion, but at the
hearing it relied on Devore v. Commonwealth.10
In Devore, our
Supreme Court held that pursuant to KRS 533.060(2) the maximum
aggregate sentence limits of KRS 532.110(1)(c) did not apply to
a defendant who had committed the current offenses while he was
on probation or parole.
Since Smith was on probation for the
assault conviction when he committed the incest offenses,
the trial court rejected Smith’s argument.
The CR 60.02 motion
was denied in an order entered on June 16, 1999, and Smith did
not appeal from that order.
The Supreme Court subsequently affirmed Smith’s
conviction on August 26, 1999, and on November 10, 1999, Smith
filed a pro se RCr 11.42 motion to vacate his sentence.
Smith
advanced several arguments in his RCr 11.42 motion, all of which
pertained to the alleged ineffective assistance of his trial
counsel.
The most notable argument raised by Smith in his RCr
9
Ky., 968 S.W.2d 670, 675 (1998). KRS 532.110(1)(c) limits the maximum
aggregate sentence to the longest extended term which would be authorized by
KRS 532.080 for the highest class of crime for which any of the sentences is
imposed, which for a Class C felony under KRS 532.080(6)(b) is 20 years.
10
Ky., 662 S.W.2d 829, 831 (1984) cert denied, 469 U.S. 836, 105 S.Ct. 132,
83 L.Ed.2d 72 (1984).
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11.42 motion was that his trial counsel was ineffective for
failing to challenge Smith’s 25-year prison sentence.
More
specifically, Smith claimed that his trial counsel “failed to
object and/or preserve the unconstitutionality of his 25 year
sentence under KRS 532.110(1)(c), and KRS 532.080(6)(b).”
Smith
also requested an evidentiary hearing on the merits of his
motion.
Smith’s request for an evidentiary hearing was granted
and the hearing was set for October 1, 2001.
In the interim, on June 13, 2001, Smith filed a pro se
CR 60.02 motion to vacate his 25-year prison sentence.
In his
second CR 60.02 motion, which was filed pro se on June 13, 2001,
Smith claimed that his 12-1/2 year sentences for incest should
run concurrently since the trial court’s sentencing judgment
failed to specify the manner in which the sentences were to run.
Smith argued that KRS 532.110(2) was controlling as the statute
specifically states that “[i]f the court does not specify the
manner in which a sentence imposed by it is to run, the sentence
shall run concurrently with any other sentence which the
defendant must serve.”
Smith further argued that his 25-year
prison sentence exceeded the maximum aggregate amount possible
under KRS 532.110(1)(c).11
11
This is essentially the same argument raised by Smith in his initial motion
to modify sentence, which was filed on June 2, 1999. Smith simply added his
three-year sentence for assault and argued that is combined 28-year sentence
exceeded the maximum amount permitted by statute. In addition, Smith also
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Upon conclusion of the evidentiary hearing, which was
conducted on October 1, 2001, the trial court entered an order
denying Smith’s RCr 11.42 motion in its entirety, which in turn
resolved all but one of the issues raised in Smith’s CR 60.02
motion.12
The only issue left unresolved by the trial court’s
denial of Smith’s RCr 11.42 motion was whether the final
judgment and sentence could be amended to comply with the trial
court’s oral pronouncement of the sentence at the hearing on
October 16, 1999.13
The trial court granted both parties leave
to brief the issue and on November 8, 2001, it denied Smith’s CR
60.02 motion.
The trial court found Cardwell v. Commonwealth,14
to be dispositive of the issue and determined that its failure
to specify the manner in which Smith’s sentences were to run by
way of a written judgment was merely a clerical mistake, and
therefore, within the purview of RCr 10.10.15
Smith subsequently
raised allegations of ineffective assistance of counsel in his second CR
60.02 motion.
12
The evidentiary hearing was supposed to be confined to Smith’s allegation
that his trial counsel did not appropriately investigate the credibility of a
witness who testified against him at trial, however, the trial court chose to
address several of the arguments contained in Smith’s pending CR 60.02 motion
as well. In addition, Smith was represented by counsel at the evidentiary
hearing, however, upon conclusion of the hearing Smith dismissed his counsel
and notified the trial court of his desire to proceed pro se.
13
The trial court did not address Smith’s argument that his combined
sentences of 28 years exceeded the maximum aggregate amount possible under
KRS 532.110(1)(c).
14
Ky., 12 S.W.3d 672 (2000).
15
RCr 10.10 permits the court to correct clerical mistakes at any time.
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appealed the denial of his RCr 11.42 motion and the denial of
his CR 60.02 motion to this Court.
The appeals have been
consolidated for our review.
Smith appears to raise three claims of error in his
two appeals.16
Smith claims the trial court erred (1) by denying
his RCr 11.42 motion to vacate his 25-year sentence; (2) by
denying his CR 60.02 motion for concurrent sentencing; and (3)
by sentencing him to a combined sentence of 28 years, which he
claims exceeds the maximum aggregate amount permitted under KRS
5323.110(1)(c).
We will address these arguments in turn.17
In his first claim of error, Smith argues that his
trial counsel was ineffective for failing to investigate the
credibility of Mark Fairchild, a key prosecution witness.
Smith’s argument appears to be predicated upon alleged
discrepancies contained in Fairchild’s testimony.
Smith claims
that Fairchild testified at trial that he looked through a crack
in the door of Smith’s home and witnessed Smith having anal sex
16
The arguments raised by Smith on appeal are difficult to understand as he
fails to state his claims with any precision or clarity. Moreover, Smith’s
briefs fail to comply with several of the mandates set forth in CR 76.12.
Nevertheless, in the interest of justice we have made every effort to address
the arguments set forth in Smith’s consolidated appeals.
17
Smith also appears to argue on appeal that the trial court erred in
permitting the Commonwealth to amend his indictment to list the charged
offenses as Class B felonies as opposed to Class C felonies. This argument
merits little attention, however, as the initial error was merely a clerical
mistake, and thus, within the purview of RCr 6.16. The incest charges were
Class C felonies which were then enhanced to Class B felonies by the PFO II
charge. The original indictment, however, did not reflect the PFO II
enhancement. Consequently, the Commonwealth sought to amend the indictment.
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with his stepson, D. B.
According to Smith, “[Fairchild] stated
that movant had his stepson bent over the bed and was having sex
with him.”
Smith, however, argues that Fairchild previously
stated that he witnessed Smith having sex with D. B. while lying
in bed.
stories.”
Thus, Smith maintains “[t]hat is two different
Smith claims that the apparent discrepancies in
Fairchild’s testimony were not addressed at trial.
Smith
further argues that his trial counsel failed to adequately
investigate the crack in the door through which Fairchild
allegedly witnessed the crime.
The trial court conducted an
evidentiary hearing on this issue and concluded that the
evidence offered by Smith was unreliable and speculative at
best.
Any claims predicated upon the alleged ineffective
assistance of counsel must be analyzed under the standard set
forth in Strickland v. Washington:18
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so
serious as to deprive the defendant of a
18
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Commonwealth, Ky., 721 S.W.2d 694 (1986).
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See also McQueen v.
fair trial, a trial whose result is
reliable.19
The Supreme Court in McQueen further elaborated on this standard
as follows:
The twin standard for such review is the
proper measure of attorney performance or
simple reasonableness under prevailing
professional norms and whether the alleged
errors of the attorney resulted in prejudice
to the accused. The defendant must
demonstrate that there is a reasonable
possibility that, but for counsel’s
unprofessional errors, the result of the
trial would have been different.20
As noted above, Smith claims that his trial counsel
was ineffective for failing to challenge the credibility of
Fairchild, a key prosecution witness.
Smith also claims his
trial counsel was ineffective for failing to adequately
investigate the crack in the door through which Fairchild
allegedly witnessed the crime.
Smith, however, fails to address
in his brief exactly how he was prejudiced by his trial
counsel’s alleged errors.
Smith attempts to gloss over the fact
that the Commonwealth introduced an audiotape of him confessing
to the crimes.
Thus, even assuming arguendo that Smith’s
counsel was ineffective for failing to investigate the crack in
the door or the credibility of Fairchild, in light of the
evidence that was presented that Smith had admitted to
19
Strickland, supra at 687.
20
McQueen, 721 S.W.2d at 697.
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committing the crimes, there was no prejudice.
That is to say,
Smith has failed to demonstrate that there is a reasonable
possibility that, but for counsel’s alleged errors, the result
of the trial would have been different.21
Accordingly, Smith’s
first claim of error is completely without merit.
In support of his second claim of error, Smith argues
that his due process rights were violated when the trial court
amended its final judgment and sentence of imprisonment to
provide for consecutive sentences on his two incest convictions.
Smith argues that the written judgment entered on October 20,
1998, should take precedent over the initial oral sentencing,
which took place on October 16, 1998.
Moreover, since the
amended final judgment and sentence of imprisonment was not
entered until November 21, 2001, Smith claims the trial court
lost jurisdiction to amend the October 20, 1998, judgment as
more than ten days had passed since the final judgment had been
entered.22
Smith’s contentions lack merit, however, as the
Supreme Court recently resolved this issue in Cardwell, supra.
In Cardwell, the defendant was convicted of manslaughter in the
second degree and assault in the fourth degree and sentenced to
21
Id.
22
See Commonwealth v. Gross, Ky., 936 S.W.2d 85, 87 (1996); and CR 59.05.
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a total of ten years’ imprisonment.23
The trial court ordered
the defendant’s ten-year sentence to be served consecutively
with a five-year sentence he was previously serving, bringing
his total sentence to 15 years.
The sentencing took place in
open court and in the presence of the defendant.24
The trial
court’s written judgment, however, failed to mention whether the
sentences were to run concurrently or consecutively. Thus, the
Department of Corrections determined that the defendant’s tenyear sentence was to run concurrently with the five-year
sentence he was serving.25
Consequently, the trial court entered
an amended judgment and sentence, which provided for consecutive
sentences.
However, the amended judgment was entered over eight
months after the original judgment and the sentence had become
final.26
The Supreme Court resolved the issue by concluding
that the amendment to the sentencing judgment was permissible as
a correction of a clerical error under RCr 10.10.27
The Court
determined that the omission contained in the trial court’s
23
Cardwell, 12 S.W.3d at 673.
24
Id.
25
Id. at 674. The Department of Corrections was simply following the mandate
set forth in KRS 532.110(2).
26
Id. at 673.
27
Id. at 675.
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written judgment was merely a mistake made in reducing the oral
judgment to writing.
The Court reasoned as follows:
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.”28
In addition, the Court went on to hold that the defendant’s due
process rights were not violated because he was present in court
when the sentence was pronounced and the record was devoid of
any evidence indicating vindictiveness or retaliation.29
Furthermore, the Court determined that double jeopardy
principles were not implicated as the defendant had no
legitimate expectation of finality.30
We agree with the trial
court that Cardwell is clearly dispositive of the issue before
us.
Thus, there is no reason to address the plethora of cases
cited by Smith in furtherance of this argument.
28
Id. at 674.
29
“[W]e believe that the absence of the possibility of vindictiveness or
retaliatory motive by the trial court, eliminates any due process concerns in
the case at bar.” Id. at 677.
30
“We believe that under the facts of this case, [Cardwell] clearly did not
have a legitimate expectation of finality. Thus, we hold that the increase
in Cardwell’s sentence via the amended judgment did not violate double
jeopardy principles.” Id. at 675.
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Smith’s final claim of error is predicated upon the
language contained in KRS 532.110(1)(c), which provides as
follows:
When multiple sentences of imprisonment
are imposed on a defendant for more than one
(1) crime, including a crime for which a
previous sentence of probation or
conditional discharge has been revoked, the
multiple sentences shall run concurrently or
consecutively as the court shall determine
at the time of sentence, except that:
. . .
The aggregate of consecutive
indeterminate terms shall not exceed the
maximum length the longest extended term
which would be authorized by KRS 532.080 for
the highest class of crime for which any of
the sentences is imposed. In no event shall
the aggregate of consecutive indeterminate
terms exceed seventy (70) years.
KRS 532.080(5) enumerates the sentencing procedure for
persistent felony offenders, such as Smith, and provides that
under such circumstances:
A person who is found to be a persistent
felony offender in the second degree shall
be sentenced to an indeterminate term of
imprisonment pursuant to the sentencing
provisions of KRS 532.060(2) for the next
highest degree than the offense for which
convicted.
KRS 532.060 provides for varying ranges of
imprisonment that may be imposed depending on the class of
felony for which the defendant has been convicted.
Smith was
convicted of two separate counts of incest, which is a Class C
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felony.
Smith’s incest convictions were then enhanced to Class
B felonies as a result of his PFO II convictions.
Under KRS
532.060(2), the maximum penalty for a Class B felony is 20
years.
Smith, however, was sentenced to a total of 25 years,
bringing his combined sentence to 28 years.31
Thus, Smith cites
KRS 532.110(1)(c) and argues that the trial court abused its
discretion by ordering his combined 25-year sentence for incest
to run consecutively with his three-year sentence for assault.
Smith further asserts that the trial court erred by sentencing
him to a total of 25 years on the incest convictions as the
maximum amount authorized by KRS 532.060(2) for a Class B felony
is 20 years.32
As to Smith’s first contention, the Supreme Court
resolved this issue in Riley v. Parke,33 and Brewer v.
Commonwealth,34 where the Court held that KRS 533.060(2) required
31
As previously discussed, Smith’s 25-year sentence for incest was ordered to
run consecutively with his three year sentence for assault.
32
The Commonwealth chose not to brief this issue, arguing that Smith’s claim
was abandoned by him in a separate appeal. Smith did raise this issue in his
pro se RCr 11.42 motion, which was filed on November 10, 1999, and he also
raised the issue in both of his CR 60.02 motions, which were filed on June 2,
1999, and June 13, 2001. For reasons unknown to this Court, however, the
issue was not raised at Smith’s RCr 11.42 hearing, which also addressed his
second CR 60.02 motion. To make matters worse, Smith never appealed the
order denying his initial CR 60.02 motion. Thus, Smith has created a great
deal of confusion by attempting to argue this issue in his CR 60.02 appellate
brief, which is an appeal from the denial of his second CR 60.02 motion.
Nonetheless, in the interest of justice we will address this issue.
33
Ky., 740 S.W.2d 934, 935 (1987).
34
Ky., 922 S.W.2d 380, 381 (1996).
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the sentences to run consecutively.
KRS 533.060(2) provides as
follows:
When a person has been convicted of a
felony and is committed to a correctional
detention facility and released on parole or
has been released by the court on probation
. . . and is convicted or enters a plea of
guilty to a felony committed while on
probation . . . the period of confinement
for that felony shall not run concurrently
with any other sentence.
Thus, KRS 533.060(2) controls over any conflicting provisions
contained in KRS 532.110(1)(c).
Accordingly, the trial court
did not abuse its discretion by ordering Smith’s 25-year
sentence for incest to run consecutively with his three-year
sentence for assault.
Smith’s final issue has also already been resolved
adversely to him by our Supreme Court.
As previously discussed,
Smith was convicted of two separate Class C felonies, which were
then enhanced to Class B felonies pursuant to KRS 532.080(5).
Smith was then sentenced to 12-1/2 years on each conviction and
the trial court ordered the sentences to be served consecutively
for a total of 25 years.
The maximum penalty authorized by KRS
532.080(5) for conviction of a Class C felony, however, is 20
years.35
Thus, Smith claims his sentence violates KRS
532.110(1)(c), which limits the aggregate of consecutive
indeterminate terms to “the longest extended term which would be
35
See KRS 532.060(2).
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authorized by KRS 532.080 for the highest class of crime for
which any of the sentences is imposed.”
Smith cites Young v. Commonwealth,36 in support of his
argument and claims the case is dispositive.
However, as
correctly noted by the trial court, Young is distinguishable
from the case sub judice.
Furthermore, Devore, supra, is
dispositive since it involved precisely the same issue we are
faced with in the case sub judice.
The defendant in Young was convicted of three Class C
felonies, which were then enhanced to Class B felonies pursuant
to KRS 532.080(6)(b).37
The trial court sentenced the defendant
to 20 years for each offense and ordered the sentences to be
served consecutively, for a total of 60 years.38
The Supreme
Court reversed the trial court’s judgment and held that “[t]he
longest term authorized by KRS 532.080 for conviction of a Class
C felony is twenty years.”39
However, in Devore the Supreme
Court held that the provisions of KRS 532.060(2) pertaining to
defendants who were on probation or parole at the time they
committed the current offense were subject to being sentenced to
36
Ky., 968 S.W.2d 670 (1998).
S.W.3d 594 (2001).
See also
Myers v. Commonwealth, Ky., 42
37
The defendant in Young was a persistent felony offender in the first
degree.
38
Young, supra at 671.
39
Id. at 675.
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consecutive sentences which exceeded the 20-year limit of KRS
532.110(1)(c).
Devore has been followed in Corbett v.
Commonwealth,40 and Campbell v. Commonwealth.41
For the foregoing reasons, the orders of the Fayette
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Ray Smith, Pro Se
Burgin, Kentucky
Albert B. Chandler III
Attorney General
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
40
Ky., 717 S.W.2d 831, 833 (1986).
41
Ky., 732 S.W.2d 878, 880 (1987).
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