CARL W. CRICK 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NOT TO BE PUBLISHED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. 2002-CA-002562-MR
CARL W. CRICK
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 99-CR-00288
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, COMBS, and SCHRODER, Judges.
COMBS, JUDGE.
Carl Crick appeals pro se from an order of the
Hopkins Circuit Court denying his motion to vacate or set aside
his sentence pursuant to RCr1 11.42 and CR2 60.02.
Finding no
error, we affirm.
On December 14, 1999, Crick was charged with the
crimes of complicity to robbery and complicity to murder.
indictment alleged that he helped his girlfriend, Margaret
1
2
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
The
Deason, rob and murder Welby Phillips.
Pursuant to a plea
agreement, on February 16, 2001, Crick entered a plea of guilty
to two amended charges of tampering with evidence.
According to
the terms of the agreement, the Commonwealth agreed to recommend
that Crick be sentenced to five years on one count of tampering
and to two years on the second count -- with the sentences to
run consecutively for a total of seven years.
In exchange for
the reduction of the charges pending against him, Crick agreed
to testify against his co-defendant, Deason.
Before accepting the plea, the trial judge engaged in
a lengthy colloquy with Crick to insure that Crick was informed
of the constitutional rights that he was waiving by pleading
guilty and that he was satisfied with the representation of his
attorney.
The judge also questioned Crick about his
participation in the crimes against Phillips in order to
ascertain that there was a factual basis for the plea to the
amended charges.
Crick confessed that he had wiped fingerprints
from the scene of the crimes, had disposed of cigarette butts
bearing traces of lipstick, and had removed a blood-stained
chair from the premises.
The trial court accepted the plea but
postponed sentencing until after Deason’s trial.
On February 4, 2002, Crick was sentenced to serve
seven years in prison.
Although the written judgment sentencing
him conformed with the plea agreement in all respects, the trial
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court erred in reciting the grounds, misstating that Crick was
being sentenced for tampering with physical evidence and for the
crime of facilitation to commit murder rather than for the two
counts of tampering with evidence.
On July 29, 2002, Crick moved the trial court to
vacate, set aside, or correct his sentence.
motion, he argued:
As grounds for his
(1) that the trial court was biased against
him; (2) that his trial counsel had rendered ineffective
assistance by failing to correct the trial court’s oral misstatement at sentencing; and (3) that his plea to two counts of
tampering with physical evidence violated his constitutional
guarantees against double jeopardy.
On September 18, 2002, the trial court entered an
order addressing and correcting the sentencing error.
The plea agreement and judgement [sic] as
originally filed, with 2 counts of tampering
with evidence, are correct and said judgment
on those counts for a total of 7 years was
correctly imposed.
On November 7, 2002, the trial court entered a second order
addressing Crick’s motion to set aside the judgment.
The Court
determined that Crick’s allegation of bias was without merit
because:
(1) Crick failed to present any evidence that he was
treated unfairly by the trial court so as to indicate the
alleged bias; (2) Crick had been sentenced consistently with his
plea agreement.
With respect to the double jeopardy issue, the
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trial court noted that Crick himself requested that both of the
charges against him be reduced to tampering with physical
evidence.
Additionally, the court concluded that Crick’s action
of wiping away fingerprints constituted one count of tampering
while his removal of the blood-stained chair constituted a
separate crime.
Crick’s motion was denied, and this appeal
followed.
In his appeal, Crick argues that he is “imprisoned
without any sentence whatsoever” and that the trial court erred
in refusing to correct this injustice. (Appellant’s brief p. 6.)
He also argues that his constitutional rights have been violated
because the trial court lacked jurisdiction to sentence him to
serve five years for a crime for which he had never been
indicted.
Because he has already served the two-year sentence
on one count of tampering, he seeks an order from this Court
directing that he be immediately released from prison.
The sole basis for Crick’s argument is the discrepancy
between the court’s oral statement at sentencing and the written
judgment.
However, as the Commonwealth points out, the written
judgment correctly conformed to the plea agreement.
Consequently, the trial court's erroneous citation has no legal
import nor does it result in any adverse consequences to Crick.
When there is an inconsistency between oral
statements of a court and an order reduced
to writing, the latter must prevail.
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Assuming for the sake of argument that the
statements are inconsistent, if they could
be used to, in effect, impeach the trial
court’s written order, “the result would be
the destruction of any certainly as to the
effect of judgments and a state of chaos in
judicial proceedings.”
Commonwealth v. Taber, Ky., 941 S.W.2d 463, 464 (1997), quoting
Commonwealth v. Hicks, Ky., 869 S.W.2d 35, at 38 (1994).
Crick cannot avoid the terms of a legitimate plea
agreement by recourse to an inadvertent error which was readily
susceptible of correction.
S.W.3d 672, 675 (2000).
Cardwell v. Commonwealth, Ky., 12
As observed by our Supreme Court,
sentencing should not “be a game in which a wrong move by the
judge means immunity for the prisoner.”
Id., quoting Bozza v.
United States, 330 U.S. 160, 166-667, 67 S.Ct. 645, 649, 91
L.Ed. 818 (1947).
The trial court acted properly in declining
the requested relief.
Crick also contends that the judgment and sentence
violate the protections provided by the double jeopardy clauses
of the state and federal constitutions.
He contends that he
visited the scene of the crime on only one occasion and that he
was punished twice for the “very same crime.” (Appellant’s brief
p. 8.)
However, Crick did commit two separate acts of tampering
with evidence during the course of that single visit.
Protection against double jeopardy does not apply where separate
offenses occur during the same transaction.
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Burge v.
Commonwealth, Ky., 947 S.W.2d 805 (1996).
Crick pleaded guilty
to violating KRS3 524.100, which provides as follows:
(1)
A person is guilty of tampering with
physical evidence when, believing that
an official proceeding is pending or
may be instituted, he:
(a)
Destroys, mutilates, conceals,
removes or alters physical
evidence which he believes is
about to be produced or used in
the official proceeding with
intent to impair its verity or
availability in the official
proceeding. . .
The trial court correctly reasoned that each act of
destroying, altering, or removing physical evidence constituted
a distinct and separate offense.
In reviewing the test set
forth in Blockerburger v. United States, 284 U.S. 299, 52 S.Ct.
180, 76 L.Ed. 306 (1932), we conclude that the two counts of
tampering (one involving wiping fingerprints from the scene and
the other removing a chair) each required some proof which the
other did not.
We need not address the Commonwealth’s argument that
Crick waived the right to invoke the double jeopardy clause by
his own suggestion that both charges be reduced to tampering.
Regardless of any waiver – implied or explicit, a constitutional
analysis pursuant to Blockburger suffices to sustain the
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Kentucky Revised Statutes.
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determination of the trial court that Crick’s rights were not
violated.
The judgment of the Hopkins Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl W. Crick, pro se
Burgin, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
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