Cardwell v. Com., No. 1997-SC-0258-DG.

• Decision Date: 24 February 2000
• Docket Number: No. 1997-SC-0258-DG.
• Parties: Charles CARDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 672

12 S.W.3d 672

Charles CARDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1997-SC-0258-DG.

Supreme Court of Kentucky.

February 24, 2000.

Charles Cardwell, Burgin, pro se.

A.B. Chandler, III, Attorney General of Kentucky, William L. Daniel II, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.

JOHNSTONE, Justice.

Appellant, Charles Cardwell, appeals from a Court of Appeals' decision denying him relief pursuant to RCr 11.42. We affirm.

Cardwell was involved in a car crash on November 20, 1993, in which one person was killed and another person was seriously injured. Tests revealed that Cardwell's blood alcohol content was .31%. Cardwell was charged with murder and first-degree assault. On December 1, 1993, a warrant was issued for his arrest and he was taken into custody two days later.

At the time of the crash, Cardwell had two separate charges pending against him for operating a motor vehicle under a revoked or a suspended license. The dates for the two charges were January 8, 1993, and June 3, 1993. Cardwell pled guilty to the first charge on December 7, 1993, and received a two-year sentence. He pled guilty to the second charge on December 10, 1993, and received a three-year sentence. The sentences were ordered to be served consecutively for a total of five years. Cardwell then was turned over to the custody of the Department of Corrections to start serving his sentence.

Cardwell was tried on the murder and assault charges in late 1994. A jury found him guilty of second-degree manslaughter and fourth-degree assault and recommended sentences of ten years and one year, respectively. The trial court accepted the jury's recommendation and ordered that the sentences for manslaughter and assault were to be served concurrently for a total of ten years. The trial court then ordered that this ten-year sentence was to be served consecutively to the five-year sentence for Cardwell's two prior convictions for operating a motor vehicle under a revoked or a suspended license. The total time to be served was fifteen years. These events occurred in open court with Cardwell present.

The videotaped record is clear that these statements were made. Handwritten notes on the court's docket sheet confirm that this was the sentence rendered by the trial judge from the bench. However, the trial court's written Judgment and Sentence differed from the sentence pronounced from the bench. Entered into the record six days later, it made no mention that the ten-year sentence was to be served consecutively to the previous fiveyear sentence.

Cardwell was already in custody serving time on the five-year sentence when he came to trial for the murder and assault charges arising out of the crash of November 20. After judgment was rendered on the manslaughter and assault convictions, the Department of Corrections calculated Cardwell's release date on the ten-year sentence in accordance with KRS 532.110(2). That statute provides that if a judgment does not specify the manner in which a sentence is to run, then that sentence is deemed to run concurrently with any other sentence which the defendant is required to serve.

In August 1995, the trial court entered an Amended Judgment and Sentence, which reads in pertinent part:

AND IS SENTENCED TO:

Ten (10) years on Manslaughter, Second-degree and Twelve (12) months and $500.00 fine on Assault, Fourth-degree, concurrently with each other but consecutively with previous sentences of five (5) years (for a total of fifteen years).

The above, emphasized language was added to the amended judgment and was not included in the original judgment. By adding this language, the trial court effectively increased Cardwell's sentence by five years.

The amended judgment was entered over eight months after the original judgment and sentence had become final. On the basis of the amended judgment, the Department of Corrections recalculated Cardwell's release date to a much later point in time.

If this were a civil action, there would be no question about the trial court's authority to enter the amended judgment pursuant to CR 60.01. As we stated in Potter v. Eli Lilly and Company, Ky., 926 S.W.2d 449 (1996):

We are well aware that CR 60.01 allows a trial court to correct clerical mistakes in its judgments and errors therein arising from an oversight or omission at any time on its own initiative. We do not believe CR 60.01 invests the trial court with either jurisdiction or authority to make substantive changes in a judgment. The effect of the rule is limited to mistakes that are clerical in nature.

Id. at 452. Moreover, a trial court has the inherent power to enter orders Nunc Pro Tune. Happy Coal Company v. Brashear, Ky., 263 Ky. 257, 92 S.W.2d 23, 28 (1936).

RCr 10.10 has been in place since 1962. When originally adopted, it was the mirror image of CR 60.01. Only one minor change has been made to it since its adoption, and is not pertinent in this case. At the time the rule was adopted, the commentary only stated that "RCr 10.10 is new and is the same as CR 60.01." Clearly, the failure to include the provision that Cardwell's ten-year sentence for manslaughter and assault was to be served consecutively to the five-year sentence for the two prior convictions, was a simple clerical error. Thus, the trial court had the authority to correct its judgment pursuant to RCr 10.10.

In spite of the dissent's argument to the contrary, 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." 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. The omission in the original judgment of a provision that Cardwell's sentence was to run consecutive with his previous sentence was a mistake made in reducing the oral judgment to writing. The omission was not the product of judicial reasoning and determination. It was a clerical error.

That this is the correct result can be demonstrated by briefly examining the reverse situation in which a trial court orally sentences a defendant to a term that is to be served concurrently with another sentence. However, due to a clerical error, the written judgment specifies that the defendant's sentence is to be served consecutive to the other sentence. It would be fundamentally unfair to declare that, in such a situation, the written judgment controlled the oral judgment, and, thus, the written judgment was not subject to correction under RCr 10.10. Since the rule makes no distinction between correction of errors that favor a defendant and those that work to a defendant's detriment, it should be applicable in either case.

The determination that correction of Cardwell's sentence was proper under the rule leaves the question of whether correction of the sentence was constitutional. The constitutional concerns in this case arise from the fact that CR 60.01 applies to civil cases whereas RCr 10.10 applies to criminal cases. Specifically, we must determine whether entry of the amended judgment violated Cardwell's right to due process or double jeopardy principles.

DOUBLE JEOPARDY

The application of the double jeopardy clause to increase a prisoner's sentence turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. United States v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987). If a defendant has a legitimate expectation in the finality of his sentence, then an increase in that sentence violates double jeopardy. Id. In other words, jeopardy only attaches to a sentence if the defendant has a legitimate expectation of the finality of that sentence. Thus, a defendant has no legitimate expectation in the finality of his sentence when the government has the right to appeal and the time to appeal has not yet expired, United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Collins v. Commonwealth, Ky., 973 S.W.2d 50 (1998), where the defendant's sentence is illegal or unauthorized by statute, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), or where the defendant deceived or committed fraud upon the trial court during sentencing. United States v. Jones, 722 F.2d 632 (11th Cir.1983); State v. Hardesty, 129 Wash.2d 303, 915 P.2d 1080 (1996); Goene v. State, 577 So.2d 1306 (Fla.1991); State v. Delmondo, 67 Haw. 531, 696 P.2d 344 (1985).

Therefore, the question we must answer is whether Cardwell had a legitimate expectation in the finality of his sentence. We believe that under the facts of this case, he 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.

Cardwell was present in open court when the trial judge pronounced that the ten-year concurrent sentences for manslaughter and assault were to be served consecutively to the five-year sentence for the two convictions for operating a motor vehicle under a revoked or a suspended license. The fact that the written judgment was silent that the ten-year sentence was to be served consecutively with the previous five-year sentence came as a fortuitous and undeserved windfall for Cardwell. The omission in the written judgment cannot serve to create the legitimate expectation that the error was beyond correction. "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Bozza, 330 U.S. at 166-67...