RICHARD WINSTEAD V. COMMONWEALTH OF KENTUCKY
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APPELLANT
RICHARD WINSTEAD
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2006-CA-002459-MR
DAVIESS CIRCUIT COURT NO . 05-CR-00718
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
This appeal asks us to determine whether the Commonwealth may seek
relief under Kentucky Rules of Civil Procedure (CR) 60.02 to correct a judicial
error, which occurred in a final judgment that erroneously grants a defendant
jail-time custody credit for pretrial confinement. Because CR 60.02 is not an
appropriate mechanism to correct a judicial error and because the
Commonwealth could have timely raised this error in a direct appeal, we hold
that it was not entitled to seek relief under CR 60.02 .
I. FACTUAL AND PROCEDURAL HISTORY.
Richard Lee Winstead was convicted in circuit court of third-degree
burglary. While serving time on probation for that conviction, Winstead was
arrested for violating the terms of his probation . Instead of revoking
Winstead's probation, the trial court ordered him to serve ninety days in the
county detention center on work release . While Outside the detention center on
work release, Winstead left his work site without permission . He was
eventually apprehended in Kansas. Wi stead ultimately pleaded guilty in the
trial court to the resulting second-degree escape charge .
The trial court sentenced Winstead to prison for one year for the escape
charge and ordered. that sentence to run concurrently with. a flagrant
nonsupport charge but consecutively with any other "penitentiary sentence the
defendant is currently serving."' In both its oral pronouncement of sen fence
on the escape conviction and in its written final judgment, the trial court
credited Winstead with 234 days spent in custody before the imposition of the
sentence for the escape conviction .
A little over one month after entry of the judgment, the Commonwealth
filed a motion. under CR 60 .02 to vacate the judgment of conviction and
sentence for escape. According to the Commonwealth, the trial court erred in
the judgment by crediting Winstead with the 234 days ofjail-time credit.
According to the Commonwealth, Winstead was entitled to receive that jail-time
credit against the burglary sentence but not against his escape sentence .
Citing Viers v. Commonwealth, 2 Winstead opposed the Commonwealth's
motion, arguing that any error in the granting ofjail-time credit was a judicial
error that could not be corrected more than ten days after the entry of the
The "penitentiary sentence" to which the trial court referred here was the sentence
imposed on the burglary conviction after the trial court revoked Winstead's
probation and remanded him to incarceration for the remainder of a two-year
sentence .
52 S .W.3d 527 (Ky . 2001).
judgment. The trial court disagreed with Winstead, granted the
Commonwealth's motion, and entered an amended judgment deleting the
234 days of jail-time credit. The trial court reasoned that granting jail-time
credit to Winstead would "effectively run his sentence for the escape
concurrently
with the
time he was and is serving in (the burglary easel . Such a
result is in violation of the express provisions of KRS 532 .110(3) ." ; i
Kentucky Revised Statutes (KRS) 532.1.1.0(3) provides, in relevant part, that "f t]he
sentence imposed upon any person convicted of an escape or attempted escape
offense shall run consecutively with any other sentence which the defendant must
serve." The Court of Appeals agreed with the trial court that granting Winstead
jail-time credit on the escape charge was an error, opining that "Winstead's
sentence was in direct violation of the mandate of KRS 532 .110(3) that sentences
for escape must be served consecutively . . . ."
We question whether KRS 532 .110(3) was facially violated because the trial court
ordered the escape conviction to run consecutive to the burglary sentence . But we
acknowledge that the practical. effect of granting 234 days jail-time credit toward a
one-year sentence may have meant that the escape charge would effectively run
concurrently with the underlying burglary charge.
Perhaps aware of the facial compliance with KRS 532.110(3), the Commonwealth
also contends that Winstead's jail-time credit award additionally violated
KRS 532 .120(3), which provides, in relevant part, that "f time spent in custody
prior to the commencement of a sentence as a result of the charge that culminated
in the sentence shall be credited by the court imposing sentence toward service of
the maximum term of imprisonment ." As the official commentary to KRS 532.120
makes clear, this statutory subsection "provides credit only for the amount of time
spent in custody for the offense of which an offender stands convicted." Since
Winstead was in custody for the underlying burglary offense and, presumably, was
receiving jail-time credit toward his sentence on that offense, the Commonwealth
rationally reasons that Winstead was not entitled to double credit for the same
period of time (credit for both the underlying burglary conviction and the escape
conviction) . See, e.g., Belt v. Commonwealth, 2 S.W .3d 790, 794 (Ky.App . 1999)
(holding that defendant "was not entitled to credit for the period set forth above
because the time spent in custody during that period was related to a separate
conviction ."); Martin v. Commonwealth, 957 S.W.2d 262, 264 (Ky.App . 1997) ("Since
Martin received credit for the time awaiting sentencing against the underlying
misdemeanor sentence, he was not also entitled to credit against his one-year
escape sentence . In fact, since KRS 532 .110(4) required that Martin's sentence for
the escape run consecutively with Martin's underlying misdemeanor sentence, he
could not receive credit against both sentences. . . . Here, since Martin received
credit against the misdemeanor sentence, to also give him credit against the escape
sentence would constitute an inequity in his favor.") .
Winstead appealed the. granting of the CR 60 .02 motion and the
reduction of his jail-time credit to the Court of Appeals. In a. split decision, the
Court of Appeals affirmed. The majority found that Viers was distinguishable
and inapplicable because Viers was not based , upon an escape charge. The
majority opined that Winstead's sentence was illegal because it was contrary to
the requirement in KRS 532 . .110(3) that sentences for escape must. be served
consecutively. So the Court of Appeals majority relied upon what it believed to
be a factually similar case from Tennessee4 to arrive at its decision to permit
the trial court to grant the Commonwealth's CR 60 .02 motion . The dissent
disagreed, opining that the trial court committed a judicial error when it
credited Winstead with the time he had spent in custody before sentencing .
The dissent noted that Viers held that a judicial error cannot be corrected more
than ten days after judgment is entered .
We granted Winstead's motion for discretionary review to consider more
fully the issue of whether the Commonwealth - or, for that matter, a
defendant - may use CR 60.02 to correct jail-time credit errors in a final
The resolution of this appeal does not depend upon precisely which statute was
violated when the trial court gave Winstead the jail-time credit at issue . All parties
agree that the granting ofjail-time credit toward the escape conviction was
erroneous, as even Winstead, concedes in his brief that "under the framework laid
out in Viers, it is clear that giving Mr. Winstead 234 days ofjail time credit was a
judicial error." We will simply assume for purposes of this appeal, therefore, that
the trial court erred when it relied upon the presentence investigation report (PSI)
prepared by a probation and parole officer to award Winstead any jail-time credit
on the escape conviction .
State v. Burkhart, 566 S .W.2d 871 (Tenn. 1978).
judgment more than ton days after the judgment i s entered. 5 Since the
improper awarding ofjail-time credit was undeniably a judicial error, and since
CR 60.02 is not an appropriate vehicle for the correction of judicial errors, we
hold that CR 60 .02 relief is unavailable under these facts . Because the Court
of Appeals came to a contrary conclusion, we reverse the decision of the Court
of Appeals and remand this matter to the trial court with instructions to
reinstate the original judgment of conviction. .
II. ANALYSIS.
A. Requirement for Trial Court to Award Jail-Time Credit.
In order to understand better the nature of the error in this case, we
must first examine why a trial court must award jail-time custody credit in the
first place .
The Executive Branch, in the form of the Department of Corrections not the judicial branch - is ultimately responsible for determining when
prisoners in its custody are eligible for release.6 But the judicial branch is
statutorily required to award applicable jail-time credit to defendants .
KRS 532 .120 generally governs jail-time credits . Originally enacted in 1974 as
See CR 59.05 (requiring a motion to amend a judgment be served within ten days
after entry of final judgment); Kentucky Rules of Criminal Procedure (RCr) 13 .04
(providing that the Rules of Civil Procedure are applicable to criminal proceedings
"to the extent not superseded by or inconsistent with" the Rules of Criminal
Procedure) .
See, e.g., KRS 196 .070(1)(d) (requiring the Commissioner of the Department of
Corrections to "[d]etermine minimum, maximum, and conditional release dates of
prisoners in accordance with KRS 197 .045.") ; KRS 197 .045 (authorizing
Department of Corrections to award service credits for good conduct, etc.) .
part of the enactment of the Kentucky Penal Code, KRS 532 .120(3) provides, in
relevant part:, that "(t]ime spent. i n custody prior to the commencement o1' a
sentence as a result of the charge that. culminated in the sentence shall be
credited by the court imposing sentence toward service of the maximum
term of imprisonment ." (Emphasis added .) The" official commentary to
KRS 532 .120 makes plain that the trial court: has an affirmative obligation to
award any applicable jail-time credit: "The provision imposes a duty upon the
trial judge to see that this credit is properly given . This is the surest way to
guarantee against oversight of the credlt. "7
Unlike its predecessor statute, KRS 532 .120 does not specify how a trial
court can calculate the amount of pretrial jail-time credit a defendant should
receive, or explicitly require the Department of Corrections to calculate jail-time
credit.$ Our research reveals, however, that the Department of Corrections is
An argument could be made that the General Assembly's directive to courts to
award jail credit information is an impermissible intrusion into the judiciary's
power to control the contents of its orders and judgments, thereby violating the
separation of powers doctrine, especially since the ultimate release date of a
prisoner convicted of a felony is within the purview of the Executive Branch, in the
form of the Department of Corrections . But we decline to explore further on our
own initiative this interesting issue because no party has raised it.
Former KRS 431 .155(1) discussed how to calculate jail-time credit and
subsection (3) of that statute provided that "[t]he department of corrections is
charged with the responsibility of determining the credit to be applied under this
section ." However, KRS 431 .155 was repealed in 1974 . See 1974 Ky. Acts Ch. 406
336 . The same legislative act which repealed KRS 431 .155 created the Kentucky
Penal Code . See IRS 500.010 ("KRS Chapters 500 to 534 shall be known as the
Kentucky Penal Code.") (created in 1974 Ky. Acts . Ch. 406 § 1) . Despite the
omission of language requiring the Department of Corrections to calculate jail-time
credit, and despite the seeming requirement that trial courts must award jail-time
credit, the official commentary to KRS 532 .120 recites that prior law, including
KRS 431 .155, was adopted into KRS 532.120 "[i]n every significant way . . . ."
still required by law to inform a trial colirt. about how much pre-trial jail-time
credit it calculates a defendant has accrued .
The applicable administrative regulation, 501. Kentucky Administrative
Regulation (KAR) 6 :270 § 1, incorporates by reference certain policies of the
Department of Probation and. Parole, which is a division of the Department of
Corrections.9 Among those current. policies incorporated by re erence is
Policy 28-01-03, effective May 26, 2005 . That; policy sets forth, among other
things, what must be included in a PSI, which is called a "presen tence
investigation" in the policy. Section II(B)(1)(j) of the policy requires "[a)ny
applicable jail custody credit" to be included "in the body of the presentence
investigation" report . So the Department of Corrections is obligated by law to
provide trial courts with jail-time credit calculations .
Trial courts, in turn, are required to award defendants the proper
amount ofjail-time credit. 10 KRS 532 .1.20 requires a trial court to award
applicable jail-time credit, and the commentary to that statute describes that
requirement as a "duty." Although KRS 532 .120 does not facially require the
trial court's award of jail-time credit to be inserted into the final judgment of
9
10
501 KAR 6:270 § 1 provides, in relevant part, that "Probation and Parole Policies
and Procedures, September 12, 2008, are incorporated by reference." (quotation
marks omitted) . Although the policies themselves unfortunately are not contained
within the administrative regulation, the regulation provides that the policies
generally are subject to public inspection .
Obviously, a party who believes Probation and Parole's jail-time credit calculation
to be incorrect may object. After hearing whatever argument and or testimony it
believes necessary, a trial court would then determine what it believed the proper
amount ofjail-time credit to be . So this opinion should in no manner be construed
to mean that a trial court is invariably bound to award jail-time credit in
accordance with the calculations performed by Probation and Parole .
conviction, our precedent at least. arguably requires it to N included in the
final judgment .
In. a decision rendered shortly after the enactment of KRS 532 . 1.20, a
defendant argued, among other things, that the trial court had failed to award
him credit in its final judgment for time spent in custody before sentencing.
Based upon that issue and the trial court's failure to obtain a recent PSI, we
remanded the case to the trial court, tersely holding that "KRS 532 .120 entitles
him to that credit and the judgment will so provide ."' I Although we need not
decide in this case if it is absolutely required, it appears, therefore, that it is
generally expected that the final judgment of conviction will include
information as to how much, if any, pretrial jail-time credit a defendant is
due. 12
If either the defendant or the Commonwealth believes the trial court's
jail-time credit calculation to be erroneous, either the Commonwealth or the
defendant may timely raise that issue on direct appeal. 13 Unfortunately,
13
Doolan v. Commonwealth, 566 S .W.2d 413, 41.5 (Ky. 1978) (emphasis added) .
See LESLIE W. ABRAMSON, 9 KY. PRAc. CRIM . PRAC. &, PROC. § 32:42 n.2 (2009-2010)
(judgment of conviction "should include the period and conditions of probation or
conditional discharge, the basis for denying probation or conditional discharge, the
nature and disposition of any other matters raised at sentencing, and the amount
of sentence credit to which the defendant is entitled as a result of pretrial
confinement.") (emphasis added) .
It is beyond cavil that a defendant may raise an alleged improper calculation ofjailtime credit on direct appeal. See, e.g., Doolan, 566 S .W.2d at 415 . Precedent
generally affords the Commonwealth a right to appeal the final sentence imposed
by the trial court. Collins v. Commonwealth, 973 S.W.2d 50, 51 (Ky. 1998) ("Stella
Marie Collins raises a single issue in this appeal: whether an appeal by the
Commonwealth of a defendant's sentence in a criminal case is barred by double
jeopardy principles . We conclude that it is not . . . .") . So the Commonwealth
although Winstead and the Commonwealth both now agree; that the trial court
erred by awarding Winstead jail-time credit., that issue was not raised iii a
timely direct appeal. 14 Accordingly, the question we must answer ire the appeal
at hand is whether CR 60 .02 is a proper procedural mechanism to challenge a
trial court's allegedly improper calculation ofjail-time credit once the time to
file a direct appeal has elapsed .
B. Judicial Error v. Clerical Error.
Generally speaking, a trial court lacks power to amend a. judgment ten
days after the entry of that judgment . 15 . An exception to that ten-day rule
exists for clerical errors. RCr 10 .10 expressly permits a trial court to correct a
clerical error "at any time on its own initiative or on the motion of any
party . .
Viers provides clear guidance about how to determine if an error is
clerical or judicial in nature:
the question of whether an error is "judicial" or "clerical" turns on
whether the amended judgment embodies the trial court's oral
14
15
presumably could attack what it believes to be an improper award of jail-time
credit in a timely-filed direct appeal.
The trial court's final judgment of conviction was entered by the clerk on
August 23, 2006. The Commonwealth's CR 60.02 motion recites that it was
submitted on September 29, 2006, and was filed by the circuit court clerk on
October 2, 2006. A party generally has thirty days after the date of entry of
judgment in which to appeal, see RCr 12 .04(3), so the Commonwealth's time to file
an appeal had expired by the time it submitted its CR 60 .02 motion .
See, e .g., McMurray v. Commonwealth, 682 S.W.2d 794, 795 (Ky.App . 1985) ("the
trial court erred in ignoring the general principle, recognized by the commonwealth
appellee in its brief, that a trial court loses control of its judgment 10 days after its
entry. Silverburg v. Commonwealth, Ky., 587 S .W.2d 241 (1979) . When our
criminal rules -do not supersede our civil rules or are not inconsistent with them,
our civil rules apply . Since our criminal rules do not provide for trial court control
of criminal judgments, our civil rule 10 day control provision applies . See
RCr 1 .10, RCr 13 .04 and CR 59 .05 . The trial court could not amend its original
judgment since 10 days had obviously passed when it did so.") .
judgment as expressed in the record . 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.. But if it
does not, then the error must be judicial .'(,
In the case at hand, the parties agree that the original written final
judgment accurately reflected the trial court's oral pronouncement at,
sentencing that Winstead would be given 234 days ofjail-tame credit. So under
the clear and unambiguous holding in. Viers, any error in giving Winstead jailtime credit was a judicial error.
C . Application of Viers.
The Court of Appeals cited Viers and acknowledged the discussion
contained in Viers regarding whether an error is clerical or judicial in nature .
But the Court of Appeals believed Viers was not controlling because Viers did
not involve an escape charge . And the Court of Appeals believed the case at
hand involved an illegal sentence, while Viers did not.
Undeniably, Viers did not involve an escape charge. But that is a
distinction that makes no true difference because the precise nature of the
underlying criminal offense does not affect our clear explanation in Viers about
what makes an error judicial in nature . And, contrary to the viewpoint of the
Court of Appeals and the trial court, the sentence in Viers was, at least
arguably, contrary to a statutory directive . As we noted in Viers, the PSI
apparently "failed to indicate that Viers had been in jail while serving a federal
sentence. After this oversight came to its attention, the trial court amended
16
Viers, 52 S .W.3d at 529 (citations omitted) .
10
the judgment on the basis that it had no authority to give jail-credit for time
spent serving a federal sentence . See K RS 532 .120(3) ." 1 7 So Viers is directly
on point, and. the Court of Appeals and trial court erred by declining to apply it
to the case at hand .
Application of Viers to the facts of this case leads to the inescapable
conclusion that the error in the case at hand was judicial in nature . 18 That
inarguable conclusion, however, does not entirely resolve this appeal because
Viers did not address whether a party -= a defendant in a typical case, the
Commonwealth in the case at hand - may use CR 60.02 to correct an
erroneous jail-time credit award after the time for filing an appeal has elapsed.
Instead, Viers involved only the application and scope of RCr 10 .10, which
governs correction of clerical errors . 19
Viers stands for two important propositions . First, it elucidates the
difference between a judicial error and a clerical error. Second, it firmly holds
that judicial errors are not correctable under RCr 10 .10 .
When applied to this case, the holding in Viers means that the error in
this case was judicial in nature and, consequently, could not have been
corrected via RCr 10 .10. But Viers leaves unanswered the question of whether
17
18
19
The fact that the trial court apparently relied in good faith on the PSI when
awarding jail-time credit to Winstead does not in any manner mean that the error
in this case is a mere scrivener's error. Although PSI reports are useful tools and
are prepared in good faith by the Department of Probation and Parole as a valuable
resource for trial court judges, it is ultimately a judge's responsibility under our
law to calculate and award accurately any jail-time credit owed to a defendant .
See id. ("we hold that the trial court erred in amending its judgment as the
correction of clerical error under RCr 10 . 10 . ") .
a judicial error is correctable under CR 60.02 . So we must now turn to the
heart of this appeal: is CR 60 .02 a device for an. aggrieved party to challenge a
judicial error? After careful consideration, we conclude that it is not.
D. Beyond Viiers : Is CR 60 .02 a Proper Avenue for Relief from Judicial
Errors?
As a prefatory matter, we must first note that the fact that the case at
hand is a criminal action does not foreclose the availability of CR 60 .02 relief
since that rule applies to both civil and. criminal cases . 20 The question
becomes, therefore, whether CR 60.02 is a proper mechanism for seeking relief
from a judicial error after the time for filing a direct appeal has expired .
CR 60 .02 is a .codification of the ancient common law writ of coram
nobis. 21 CR 60 .02 did not expand the scope of the writ of coram nobis. 22 So in
order to be cognizable, a CR 60.02 motion must fall within at least one of the
three purposes of the writ of coram nobis:
The purpose of coram nobis was to bring pronounced judgment
errors before the court which (1) had not been heard or litigated,
(2) were not known or could not have been known by the party
through the exercise of due diligence, or (3) the party was
prevented from presenting due to duress, fear, or some other
sufficient cause . 23
20
21
22
23
See, e.g., Fanelli v. Commonwealth, 423 S.W.2d 255, 257 (Ky. 1968) ("CR 60.02 is
available in both civil and criminal proceedings .") .
Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008) .
Id. at 766 .
Id. at 765-66 .
12
Consequently, relief under Cl~ 60.02 "is available only to resolve issues that
could not have been raised at trial, on direct appeal., or by a motion for relief
under RCr 11 .42 ."24
There is no indication. i n this case that had it exercised due diligence, the
Commonwealth could not have raised the improper awarding ofjail-time credit
to Winstead on direct appeal . So CR 60 .02 is an inappropriate vehicle for
seeking jail-time credit relief in this case
What is more, the writ of eoram nobis "was aimed at correcting factual
errors, not legal errors . . . . "25 And current precedent holds that CR 60.02 is
not available to correct a judicial error .26 So CR 60.02 relief is inappropriate in
this case for two reasons : (1) any error in awarding Winstead jail-time credit
could easily have been raised via direct appeal had the Commonwealth
24
25
26
Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005) . See also Gross v.
Commonwealth, 648 S .W.2d 853, 856 (Ky. 1983) (holding that CR 60.02 "is for
relief that is not available by direct appeal and not available under RCr 11 .42 . The
movant must demonstrate why he is entitled to this special, extraordinary
relief . . . . CR 60.02 was enacted as a substitute for the common law writ of eoram
nobis. The purpose of such a writ was to bring before the court that pronounced
judgment errors in matter of fact which (1) had not been put into issue or passed
on, (2) were unknown and could not have been known to the party by the exercise
of reasonable diligence and in time to have been otherwise presented to the court,
or (3) which the party was prevented from so presenting by duress, fear, or other
sufficient cause .") .
Leonard v. Commonwealth, 279 S .W.3d 151, 161 (Ky. 2009) .
See McMillen v. Commonwealth, 717 S .W.2d 508, 509 (Ky.App. 1986) ("it has been
held that relief under CR 60.02 is not available for judicial errors or mistakes."),
citing Roberts v. Osborne, 339 S.W.2d 442 (Ky. 1960), and James v. Hillerich &
Bradsby Company, 299 S.W.2d 92 (Ky. 1956) ; Toyota Motor Mfg., Kentucky, Inc. v.
Johnson,
S.W.3d
, 2010 WL 2470855, at *4 (Ky. March 19, 2010) ("And
some Kentucky cases generally state that it is inappropriate to grant relief under
CR 60 .02(a) on the basis ofjudicial mistake ."), citing McMillen, James, and Roberts .
13
exercised due diligence, and (2) precedent holds that. CTS 60.02 is not available
as a vehicle to correct judicial errors.27
We are aware, as was the trial court, that, current precedent's conclusion
that CR 60 .02 cannot properly be used to correct judicial errors seems to
contradict the Court of Appeals' three-decades old, terse opinion in Duncan v.
Commonwealth. 28
In Duncan, the defendant filed a motion for the trial court to "amend its
judgment to reflect credit for all time spent in custody prior to the entry of the
final judgment."29 That motion was filed about eighteen months after
sentencing.3a Although the motion for additional jail-time credit did not openly
invoke CR 60 .02, the Court of Appeals held that it was "evident that the
appellant's motion was made pursuant to CR 60.02 rather than RCr 11 .42 .";1
The Court of Appeals' terse opinion did not analyze whether any error in the
jail-time credit award was judicial or clerical in nature . Instead, the Court of
Appeals held that Duncan's motion was untimely because it was made more
27
28
29
30
31
Normally, a trial court's ruling on a CR 60 .02 motion is reviewed under the
deferential abuse of discretion standard. See, e.g., Brown ir. Commonwealth.,
932 S.W.2d 359, 362 (Ky. 1996) . But that standard is somewhat inapt in this case
because the trial court had no discretion to exercise because CR 60.02 is an
inappropriate tool to correct a judicial error. Regardless, the trial court's decision
to grant relief based upon an improperly filed CR 60 .02 motion is an abuse of
discretion .
614 S .W.2d 701 (Ky.App. 1980) .
Id. at 701 .
Id. at 702 ("Here, the appellant waited a year and a half from the time of the entry
of the trial court's judgment to request such relief.") .
Id. at 701 .
14
than one year after the trial court. entered its final judgment., in contravention
of CR 60 .02's one-year time limit for motions based upon mistake . 32
But Duncan does not address our predecessor Court's prior holdings in
Roberts and Tames that CR 60 .02 is not a proper mechanism
to
attempt to
correct judicial errors . And Duncan himself did not actually believe he had
filed a CR 60.02 motion . The Court of Appeals merely construed the motion to
have been brought under CR 60.02 .
Duncan has been cited in many opinions, principally unpublished, for
the proposition that a motion for correction of an. allegedly erroneous jail-time
credit award is treated as a motion brought under CR 60 .02 . 33 But, as we have
already explained, CR 60.02 is unavailable to correct judicial errors and is
unavailable to correct an error that due diligence would have permitted to have
been raised on direct appeal . So to the extent that Duncan stands for the
proposition that CR 60 .02 is a proper procedural vehicle to address judicial
errors, such as the improper awarding of jail-time credit, Duncan and its
progeny are overruled . 34
32
33
Id. at 702. CR 60 .02 provides, in relevant part, that motions based upon mistake
(i.e., CR 60.02(a)) must be made "not more than one year after the judgment, order,
or proceeding was entered or taken."
See, e.g., Burden v. Commonwealth, No. 2009-CA-.002151-MR, 2010 WL 3515815
(Ky.App. Sept. 10, 2010); Lane v. Commonwealth, No . 2004-CA-000966-MR,
2005 WL 928422 (Ky.App. Apr . 22, 2005) ; Seadler v. Commonwealth, No. 2002-CA-
001452-MR, 2003 WL 21245812 (Ky.App. May 30 . 2003) .
34
In the unlikely, rare event that the trial court's oral award ofjail-time credit
conflicts with its written judgment, the proper method of seeking relief would be via
RCr 10 .10's provision for correcting clerical errors "at any time . . . ."
15
By concluding that CR 60.02 relief is unavailable to correct judicial
errors, we by no means endorse the admittedly improper jail-time credit award
in this case . But the Commonwealth's decision to attempt to rectify that error
via CR 60 .02 runs counter to two lines of clear precedent: one holds that
CR 60 .02 is unavailable to rectify judicial errors and the other holds that
CR 60 .02 relief does not lie to correct errors that were, or could have been,
raised on direct appeal. So correcting the judicial error in this one case would
require us to overturn well-established precedent, destabilizing this entire area
of the law. We refuse to jettison settled precedent and to bend our rules in
order to grant relief to, the Commonwealth in this one case, especially when the
Commonwealth itself failed to object to the error in a timely manner .
E. Improper Jail-Time Credit Award is Not an Illegal Sentence .
Perhaps recognizing that the error in this case is a judicial mistake
under Viers, the Commonwealth contends that the trial court had the ability to
correct Winstead's sentence "at any time" because that sentence was illegal;
and an illegal sentence may be corrected at any time . We reject this argument
because the award of jail-time credit is not part of Winstead's sentence.
We accept that granting Winstead jail-time credit in this case was illegal.
Something is illegal if it is "[f]orbidden by law . . .
."35
Even Winstead admits in
his brief that the trial court's decision to grant him jail-time credit was "directly
contrary to KRS 532 .120(3) ." So we accept that the granting of jail-time credit
3s
BLACK's LAW DICTIONARY (9th ed . 2009) .
16
to Winstead was, strictly speaking, illegal . But., nonetheless, we believe that
the jail-time credit award was not art of Winstead's sentence .
As Winstead's attorney asserted at oral argument:, an award of jail-time
credit is not actually a part of a sentence imposed upon a defendant even
though the jail-time credit may be included in the final judgment of conviction .
A leading legal dictionary defines sentence as "the punishment imposed on a
criminal wrongdoer . . . . "36 Similarly, although it did so in a case factually
distinguishable from the one at hand., our predecessor Court noted that "[a]
`sentence' may be either a fine or imprisonment, or both ."37
Jail-time credit is not in any sense a punishment imposed upon a
criminal wrongdoer, nor is it either a fine or a term of imprisonment . Instead,
a jail-time credit award is information that helps the Department of Corrections
carry out its statutorily mandated role to determine the minimum and
36
37
Commonwealth v. Ballinger, 412 S .W.2d 576, 578 (Ky. 1.967) . But see Viers,
52 S .W.3d at 529 ("In the case at bar, the sentence imposed at sentencing including the jail time credit - is clearly and accurately reflected in the subsequent
written judgment .") .
The issue of what actually constitutes a sentence was not truly at issue in Viers.
Instead, as previously explained, the only real issue in that case was whether an
erroneous jail-time credit was a "clerical error" that could be corrected "at any
time" under RCr 10.10. As noted previously in this opinion, we adhere to our
holding in Viers on what differentiates a judicial error from a clerical error. But we
did not intend in any way in Viers to rule definitively on whether j ail-time credit is
actually part of a criminal sentence, especially since the word sentence does not
appear in RCr 10.10 . To clarify any seeming conflict between Viers and the case at
hand, however, we now expressly depart from any unfortunate dicta in Viers (and
any other similar case) that could be construed to constitute a holding that jailtime credit is part of a criminal defendant's sentence.
17
maximum expiration dates for incarcerated ol`IMders. 3s Simply put, the
dictionary definition of sentence and oui- predecessor court's definition of what
constitutes a sentence both lead to the conclusion that an award of jail-time
credit is not actually part of a defendant's sentence even if the jail-time credit
award is included in the final judgment of conviction. 3`
In concluding that the erroneous jail-time credit was an illegal sentence,
it appears that the Court of Appeals focused on whether the award of jail-time
credit was contrary to statutory directives - that is, illegal - but failed to
focus upon whether the award ofjail-time credit was actually part of
Winstead's sentence . Because we have already determined that jail-time
credit is not part of a defendant's sentence, precedent holding that an illegal
sentence may be corrected "at any time"40
38
39
40
is
irrelevant because, as we
See KRS 196 .070(1)(d) (requiring the Commissioner of the Department of
Corrections to "[d]etermine minimum, maximum, and conditional release dates of
prisoners in accordance with KRS 197 .045 .") ; KRS 197.045 (authorizing
Department of Corrections to award service credits for good conduct, etc.) .
Cf. State v. Cockerham, 975 P .2d 1204, 1208 (Kan . 1999)
.(holding that modifying
Kansas sentence to increase jail-time credit on Kansas offense for time defendant
had been incarcerated in Kentucky on an unrelated offense "is not a modification
of a defendant's Kansas sentence.") ; State v. Smith, 105 P.3d 738, 740-41
(Kan.Ct .App. 2005) (reduction in jail-time credit did not modify defendant's
sentence) . But see, e.g., State v. Mancino, 714 So.2d 429, 433 (Flay 1998) ("we
agree . . . that a sentence that does not mandate credit for time served. would be
illegal since a trial court has no discretion to impose a sentence without crediting a
defendant with time served .") ; Doolittle v. State, 154 P.3d 350, 356 (Wyo. 2007) ("A
sentence which does not include proper credit for presentence incarceration is
illegal.") .
See Skiles u .Commonwealth, 757 S.W .2d 212, 215 (Ky.App . 1988) . We have
expressed at least some skepticism about whether the Court of Appeals painted
with too broad a brush when it declared that an illegal sentence could be corrected
"at any time ." See Neace v. Commonwealth, 978 S.W.2d 319, 322 (Ky. 1998) ("It is
unnecessary to consider whether the Skiles `at any time' correction standard is too
liberal or far-reaching .") .
18
discussed with the parties at oral argument, the jail-time credit award is not. a
part of Winstead's actual sentenee .4 1
F. This Case Must Be Remanded to the Circuit Court .
Finally, the only issue properly before us in this case is whether the
Commonwealth properly sought CR 60.02 relief after the time to file a direct
appeal had expired in order to attempt to correct the erroneous awarding of
jail-time credit to Winstead . As we have discussed, CR 60 .02 is. unavailable in
those types of situations . So the trial court erred by granting the
Commonwealth's CR 60 .02 motion, and the Court of Appeals erred by affirming
that decision. The case must be remanded to the trial court with instructions
to reinstate the original judgment of conviction .4 z
41
42
With some rare exceptions, the law generally requires parties to assert diligently
and timely their rights. Even CR 60 .02, which the Commonwealth attempted to
utilize in this case, contains some express time limits (one year if based upon
mistake, newly discovered evidence, etc .) and some implied time limits (for
example, motions under the catch-all subsection (~ must be made "within a
reasonable time . : . .") . Adoption of the "at anytime" standard would appear to
encourage, or at least would not punish, sloth or negligence . We question,
therefore, whether an illegal sentence may always be subject to correction "at any
time." But we need not definitively resolve that issue in the case at hand because
the awarding ofjail-time credit is not actually part of a defendant's sentence .
An example of a truly illegal sentence is found in our recent opinion in
McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010) . In McClanahan, the
defendant entered into a plea agreement, which had the ultimate effect of having
the defendant sentenced to thirty-five years' imprisonment, even though the
statutory maximum punishment to which the defendant could have been subjected
was twenty years' imprisonment . Id. at 699 . Obviously, the case at hand is
markedly different in that Winstead's sentence of one year of imprisonment, to be
served consecutively to the burglary conviction, fell within the permissible
statutory range for that offense. See KRS 520 .030(2) (classifying second-degree
escape as a Class D felony); KRS 532 .060(2)(d) (providing a penalty range of one to
five years' imprisonment for a Class D felony) .
Although the issue is important, we will not issue an advisory opinion concerning
what, if anything, either a defendant or the Commonwealth properly could file after
19
III. CONCLUSION .
For the foregoing reasons, the opinion of the Court of Appeals is
reversed ; and this case is remanded to the trial court for proceedings
consistent with this opinion.
All sitting. Abramson, Noble, Schroder, and. Venters, JJ ., concur .
Cunningham, J., dissents by separate opinion in which Scott, J ., joins.
CUNNINGHAM, J., DISSENTING : The ruling of the majority today
deprives both the Commonwealth and a criminal defendant of the means of
correcting an illegal sentence after the time for the direct appeal has expired.
Thus, it violates both the due process clause of the Fourteenth Amendment of
the U.S . Constitution and Section 14 of the Kentucky Constitution . Therefore,
I respectfully dissent .
Civil Rule 60 .02 and its case law progeny were never intended to open
gates to endless litigation . Finality is crucial. And I agree that, as late as
2008, we reasserted that that this provision is not intended to "relitigate
previously determined issues ." Baze v. Commonwealth, 276 S .W.3d 761, 765
(Ky. 2008) . However, even in the constrictive language of Baze and other cases
bearing on point, we allowed that the doctrine of coram nobis, codified by
CR 60 .02, was available to deal with "judgment errors which had not been
heard or litigated ."
the time for filing a direct appeal has expired in order to seek to amend an allegedly
improper award ofjail-time credit .
20
We have judgment error in this case, and it has not been heard or
litigated until this 60.02 .
CR 60 .02 states in part that; "a court may, upon. such terms as are just,
relieve a party or his legal representative from the final judgment, order, or
proceeding upon . . . mistake, inadvertence, surprise, or excusable neglect."
BLACK'S LAw DICTIONARY
(8th ed . 2004) defines "inadvertence"
"[a.]n accidental
oversight ; a result of carelessness ." That was exactly what happened here.
Also, the action was taken by the Commonwealth within the one-year limitation
required . Therefore, it seems clear to me that the relief being sought by the
Commonwealth in this case clearly falls within the intent and purpose of
CR 60 .02 .
I take serious issue with the majority's statement that jail time credit is
not part of the sentence. The short provision of KRS 532 .120(3), which affords
pre-trial jail credit toward time to be served, mentions the word "sentence" five
times. Through this statutory command, jail credit is made part of the
sentence . Visit any circuit court of the 120 counties of this Commonwealth
and listen as the circuit judge pronounces sentence. In the same breath as the
years of imprisonment are imposed, the amount ofjail credit falls hard upon.
The Doolan case, cited by the majority, requires jail credit to be in the judgment
of sentencing.
It should be remembered that on this day the Commonwealth of
Kentucky is seeking relief. My experience teaches me that, in most efforts, it
will be a criminal defendant who is shorted jail time creditsometimes
21
affecting substantially his or her sen t;ence . I ti many cases, such mistake or
inadvertence is not discovered until the defendant is serving time and more
than 30 days have elapsed. If the defendant is not allowed to utilize CR 60 .02
to correct this illegal sentence, then he or she will be serving an unlawful
sentence. 43
I believe that both the Commonwealth and the defendant are in great
need of this mechanism to correct an illegal sentence . It should not be
complicated. We should narrowly hold that error in jail credit can be corrected
through the use of CR 60 .02 .
Therefore, I respectfully dissent and would affirm.
Scott, J., joins this dissent .
43
Arguably, a defendant could challenge the failure to give proper jail time credit in a
habeas action pursuant to KRS 419 .020 . This action would have to wait until near
the end of the sentence. There is some support for this. 39 C.J.S. Habeas
Corpus § 174. However, it gets complicated. The parole eligibility date is computed
from the sentence on the judgment at time of commitment. Therefore, the
defendant may be deprived of an earlier release via parole because of the failure to
give the appropriate jail credit. In any case, the Commonwealth would not, as
here, have any recourse for correction.
22
COUNSEL FOR APPELLANT:
Joseph Brandon Pigg
Samuel N . Potter
Assistant Public Advocates
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601.
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Courtney J . Hightower
Stephen Bryant Humphress
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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