BROWN (BOBBY GENE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001272-MR
BOBBY GENE BROWN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NOS. 05-CR-001911; 05-CR-002478; AND 06-CR-000946
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND VACATING
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BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES.
KELLER, JUDGE: In April 2006, Bobby Gene Brown (Brown) pled guilty to
several counts of theft by deception and to being a persistent felony offender in the
first degree. In August 2006, the trial court sentenced Brown to a total of eleven
years’ imprisonment on those charges. In January 2009, the Commonwealth filed
a motion asking the court to amend its sentence and to order Brown to pay
restitution to his victims. Over Brown’s objection, the trial court granted the
Commonwealth’s motion. It is from this order that Brown now appeals. For the
reasons set forth below, we reverse and vacate.
FACTS
On June 20, 2005, August 8, 2005, and March 21, 2006, Jefferson County
grand juries indicted Brown on nineteen counts of theft by deception of more than
$300.00, one count of theft by deception of less than $300.00, and one count of
being a persistent felony offender in the first degree (PFO I). The thefts occurred
when Brown billed various customers a total of $58,692.00 for construction work
that he did not perform.
On April 20, 2006, Brown entered a plea of guilty. In exchange for that
plea, the Commonwealth offered a sentence of eleven years’ imprisonment or
probation that, if violated, would result in a sentence of thirty-five years’
imprisonment. The agreement also provided that Brown would make restitution
and, to the extent he did so, any probationary sentence would be reduced. Brown
testified that he understood the agreement, entered into it freely, and that he wanted
to make restitution. Brown then asked the court to delay imposing a sentence until
August 2006 so that he could earn money to start making restitution.
On April 24, 2006, the court entered three judgments on guilty plea, one for
each of Brown’s indictments. We note that the judgments on guilty plea that are
associated with case numbers 06-CR-000946 and 05-CR-002478 are essentially the
same. The judgment on guilty plea in case number 05-CR-001911 is worded
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somewhat differently. However, in all three judgments, the court noted the terms
of the plea agreement, including the amount of restitution owed. Pursuant to
Brown’s request, the court set the sentencing hearing for August 10, 2006.
At the sentencing hearing, Brown stated that he had just obtained
employment and had not been able to pay any restitution. He reiterated his intent
to do so and asked the court to probate his sentence. The court noted Brown’s
prior convictions and that Brown had previously violated probation/parole, and it
sentenced him to eleven years’ imprisonment. The court’s judgment of conviction
and sentence did not contain any reference to restitution.
In 2009, Brown was paroled. Brown’s parole officer noted that the
judgment of conviction and sentence did not contain any restitution order. He
contacted the Commonwealth’s Attorney’s office and asked it to move the court
for an amended judgment of conviction and sentence so that restitution could be
made a condition of Brown’s parole.
The Commonwealth filed the requested motion. After a hearing and over
Brown’s objection, the court amended the judgment of conviction and sentence. In
doing so, the court noted that it had some concern that it had lost jurisdiction
because the Commonwealth had not sought a restitution order within ninety days
of sentencing. Nonetheless, the court, relying on Kentucky Rule of Criminal
Procedure (RCr) 10.10, amended the judgment of conviction and sentence and
added the following language: “Defendant is ordered to make restitution to any
victims identified either in the AOC 491.1 forms, victim impact statements, or
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restitution applications filed of record herein.” Because the court believed the
Parole Board had the authority to determine the exact amounts owed and the
appropriate payees, the court did not specify what amount Brown owed or to
whom. Therefore, the court “transferred” the Commonwealth’s motion “to the
Parole Board for determination of the details of how much restitution is to be paid,
to whom, and on what schedule, pursuant to KRS 439.563(2).”
It is from this order that Brown appeals.
STANDARD OF REVIEW
Whether the trial court acted outside its jurisdiction in amending the
judgment of conviction and sentence is a question of law, which we review de
novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
ANALYSIS
Brown argues that, because the judgment of conviction and sentence had
been final for three years, the trial court did not have jurisdiction to amend it. The
Commonwealth argues that, under RCr 10.10, the trial court had jurisdiction.
RCr 10.10 provides that:
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 or on the motion of any party and after
such notice, if any, as the court orders.
As noted by the parties, whether RCr 10.10 applies depends on whether the trial
court’s failure to mention restitution in its initial judgment of conviction and
sentence was a clerical mistake that arose from oversight or omission.
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Both parties cite Cardwell v. Commonwealth, 12 S.W.3d 672 (Ky. 2000), as
supportive of their positions. Cardwell pled guilty to two charges of operating a
motor vehicle under a revoked or suspended license and received a total sentence
of five years’ imprisonment on the two convictions. He then stood trial for
murder, was found guilty of manslaughter and assault, and received a total
sentence of ten years. In open court, with Cardwell present, the trial court ordered
the five-year and the ten-year sentences to run consecutively for a total of fifteen
years’ imprisonment. However, when the trial court reduced its sentence to
writing, it did not specify that the two sentences should run consecutively.
Approximately eight months later, the trial court entered an amended judgment
stating that the sentences were to run consecutively.
A divided Supreme Court of Kentucky held that the trial court legitimately
corrected a clerical error. In doing so, the majority stated that there is a distinction
between clerical errors, which are correctable under RCr 10.10, and judicial errors,
which are not.
[T]he 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.” Buchanan v. West Kentucky
Coal Company, Ky., 218 Ky. 259, 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. . . .” 46 Am.Jur.2d,
Judgments § 167.
Id. at 674.
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The Commonwealth argues that Brown agreed to make restitution as part of
his plea agreement, that restitution was incorporated into the court’s judgment on
that plea, and that Brown admitted during several court appearances that he was
obligated to and was going to make restitution. Therefore, the court’s omission of
restitution in its sentence was simply a clerical error “arising from error or
omission.” On the other hand, Brown argues that the same evidence shows that the
judge was keenly aware that restitution was a factor in the plea agreement but that
she made a judicial determination to exclude it from her sentence.
Although the language in Cardwell is instructive, it is distinguishable from
the case herein. In Cardwell, the judge specifically stated at the sentencing hearing
that the sentences were to run consecutively. Although the judge herein and the
parties discussed restitution, the judge did not specifically state at the sentencing
hearing that she was making restitution part of the sentence. Therefore, unlike in
Cardwell, there is no specific statement by the judge that contradicts the written
sentence.
In addition to Cardwell, Brown cites to Viers v. Commonwealth, 52 S.W.3d
527 (Ky. 2001). In Viers, the trial court stated in court that it was giving Viers
credit for time served. The court then set forth that credit in its written order.
Sometime later, the court discovered that it had granted the credit in error and that
no credit was due. The court then issued an amended sentence, deleting the credit.
Viers appealed and the Supreme Court revisited the distinction between clerical
and judicial errors.
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[T]he question of whether an error is "judicial" or
"clerical" turns on whether the amended judgment
embodies the trial court's oral judgment as expressed in
the record. See Presidential Estates Apartment
Associates v. Barrett, 129 Wash.2d 320, 917 P.2d 100,
103 (1996). If it does, then the error is clerical in that the
amended judgment either corrects language that is
inconsistent with the oral judgment, or supplies language
that was inadvertently omitted from the oral judgment.
See id. at 104. But if it does not, then the error must be
judicial.
Id. at 529.
As with Cardwell, Viers is distinguishable. The oral and written sentences
in Viers were consistent, although they were premised on faulty information. Here,
the court had sufficient and correct information, but it did not specifically make
restitution a part of Brown’s sentence either orally or in writing.
We are persuaded that Rollins v. Commonwealth, 294 S.W.3d 463 (Ky. App.
2009), most closely resembles the case herein and is controlling. Rollins pled
guilty to a number of counts of arson and received a sentence of ten years’
imprisonment. “The final judgments provided that Rollins would pay restitution
with ‘the amount of full restitution to be determined.’” Id. at 464. Rollins “served
out” his sentence and the Commonwealth filed a motion seeking an order of
restitution. The court granted the Commonwealth’s motion over Rollins’s
objection and ordered Rollins to pay $183,317.50 in restitution.
On appeal, this Court pointed out several errors by the trial court. First, we
held that an order of restitution must set the amount of restitution to be paid, which
the trial court’s original sentencing order failed to do. Id. at 465. Second, we
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noted that a post-sentence petition for restitution must be filed within 90 days of
sentencing. Because the Commonwealth waited more than seven years to seek an
order of restitution, its motion was time barred. Third, we noted that “the mention
of restitution in the plea agreement, at best, indicate[s] that a restitution claim
would be forthcoming from the Commonwealth.” Id. at 466. In order to protect
that claim, the Commonwealth is required to file a petition within 90 days of
sentencing. Fourth, we noted that “[a] court loses jurisdiction ten days after the
entry of final judgment, and such jurisdiction can only be renewed or extended by
statute or rule.” Id. The only statute that extends that period is KRS 431.200,
which requires the filing of a petition within 90 days. The only rule that extends
that time is RCr 10.10, which provides for the correction of clerical errors. This
Court held that the trial court’s mistaken belief that the original restitution order
was sufficient was not a clerical error but a mistake involving a matter of
substance. Id. at 466-67. We characterized that error as judicial error and not
subject to correction under RCr 10.10. Therefore, we held that the trial court
lacked the ability to correct its faulty restitution award. Id. at 467.
As in Rollins, Brown agreed to pay restitution as part of his plea agreement
and the court acknowledged that agreement. Furthermore, it appears that Brown
and the Commonwealth contemplated and agreed that restitution would be part of
the sentence. However, the judge did not incorporate that agreement into the
sentence. The failure to incorporate that agreement into the sentence, like the
court’s failure to specify the amount of restitution in Rollins, is substantive and not
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simply a clerical error. Thus, the court’s failure to include restitution in the
original sentence was not properly the subject of an RCr 10.10 motion/petition.
Furthermore, the Commonwealth failed to file a petition asking the court to set
restitution within the required ninety days. Therefore, the Commonwealth’s
petition was not properly before the court and the court’s amended order and
judgment must be reversed and vacated.
Finally, even if the amended sentence were permissible under RCr 10.10, it
would not be a valid restitution order because it does not specify the amount to be
paid as required by KRS 532.033(3). Rollins, 294 S.W.3d at 465.
CONCLUSION
For the foregoing reasons, we reverse and vacate the trial court’s “Order
Addressing Restitution and Correcting 8/22/06 Judgment of Conviction and
Sentence.”
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ryan VanTrease
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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