Hutson v. Com., No. 2005-CA-002289-MR.

CourtKentucky Court of Appeals
Writing for the CourtAcree
Citation215 S.W.3d 708
Docket NumberNo. 2005-CA-002289-MR.
Decision Date01 December 2006
PartiesJoseph HUTSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
215 S.W.3d 708
Joseph HUTSON, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2005-CA-002289-MR.
Court of Appeals of Kentucky.
December 1, 2006.
Discretionary Review Denied by Supreme Court March 14, 2007.

[215 S.W.3d 710]

Roy A. Durham, Assistant Public Advocate, Frankfort, KY, for appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Louis F. Mathias, Jr., Assistant

[215 S.W.3d 711]

Attorney General, Frankfort, KY, for appellee.

Before COMBS, Chief Judge; ACREE and JOHNSON, Judges.

OPINION

ACREE, Judge.


Joseph Hutson (Hutson) appeals from a nunc pro tunc pretrial order entered by the Campbell Circuit Court memorializing Hutson's arraignment and plea of not guilty to the charge of being a persistent felony offender, second degree (PFO II). Hutson also appeals from the amended judgment of the same court convicting him of the PFO charge. Both the order and amended judgment were entered after this court reversed Hutson's original conviction on grounds that the record then before this court included no record of Hutson's arraignment or plea to the PFO charge. Hutson argues that the Campbell Circuit Court had no jurisdiction to enter a nunc pro tunc pretrial order and amended judgment in view of this court's decision in Hutson v. Commonwealth, 171 S.W.3d 743 (Ky.App.2005), hereafter cited as Hutson I. For the reasons discussed, we disagree and so affirm the trial court's judgment.

The procedural history of this matter is set forth, in part, in Hutson I. In summary, Hutson was indicted, arraigned and entered a plea of not guilty in Campbell Circuit Court on a charge of first-degree sodomy. Trial was scheduled for November 2, 1998, but because a jury could not be seated, the trial was continued. On that same date, the prosecutor informed Hutson's counsel, attorney Theodore Knoebber (Knoebber), of Hutson's prior felonies and the probability of a subsequent indictment on a PFO count.

On November 12, 1998, Hutson was indicted on the charge of persistent felony offender in the second degree. The record before this court in Hutson I was devoid of any written or other record that Hutson was ever arraigned or pleaded to the PFO count. However, as is discussed infra, Hutson was in fact arraigned and pleaded not guilty to that charge on November 20, 1998.

On December 10, 1998, Hutson was tried on the underlying charge of first-degree sodomy. The jury convicted him of the lesser-included offense of first-degree sexual abuse. When the trial court proceeded to the PFO phase of the trial, Hutson's trial counsel, Knoebber, objected to going forward, stating he was unaware of any arraignment or plea to the charge. The trial court overruled Hutson's objection and proceeded.

Prior to the Commonwealth's presentation of its case on the PFO count, Hutson and his counsel conferred, after which Hutson's counsel stipulated to the court:

There is no dispute as to the fact that there was a prior felony conviction of Mr. Hutson in August of 1993, and he was over 18 at the time, and he is over 21 now.

(TAPE No. 2; 12/10/98; 18:44:14). The prior felony conviction to which Hutson's counsel referred was adjudicated in Campbell Circuit Court and the trial court announced it would take judicial notice of that fact. The Commonwealth then called Hutson's parole officer, Ed Sorenson, who testified to the same prior felony conviction as well as other convictions in other courts.

Hutson was found guilty on the charge of second-degree persistent felony offender and his sentence was enhanced from five-years imprisonment to ten-years imprisonment. Hutson took his prior appeal from that conviction.

When this court reversed the PFO conviction, we said:

215 S.W.3d 712

[I]t is uncontroverted that appellant was not arraigned and did not enter a plea . . . . Accordingly, we are constrained to conclude the trial court committed reversible error by failing to arraign, appellant and to take his plea upon the charge of being a second-degree persistent felony offender.

Hutson I at 745 (emphasis added). The Campbell Circuit Court judgment was "reversed and this cause remanded for proceedings not inconsistent with this opinion." Id.

Almost immediately after this case was re-docketed in the Campbell Circuit Court, the Commonwealth found a videotape of Hutson's arraignment and not guilty plea on the PFO count. Consequently, the Commonwealth filed a "Motion to Correct the Record Pursuant to CR 60.01." The motion indicated that "a review of the video record confirms that on November 20, 1998 the Defendant was in fact arraigned on the charge of Persistent Felony Offender." The Commonwealth's motion sought both a nunc pro tunc pretrial order reflecting that Hutson had been arraigned and entered a not guilty plea, and a corrected judgment and sentence on the charge of persistent felony offender.

On October 14, 2005, the Campbell Circuit Court entered the nunc pro tunc pretrial order which stated that on November 20, 1998, Hutson appeared in open court with counsel, waived formal arraignment and entered a plea of not guilty. Also on October 14, 2005, the lower court entered an "Amended Judgment and Sentence on Plea of Not Guilty" which differed from the original judgment and sentence only in that it included the date of the arraignment, November 20, 1998, as shown on the videotape. As noted, Hutson appeals from both the order and amended judgment.

Hutson presents the following arguments. First, the trial court had no jurisdiction to take any action other than to reverse the PFO conviction and, we presume, dismiss that charge and order Hutson's release since Hutson already served more than the maximum sentence permissible on the underlying conviction. Second, he argues the law of the case doctrine prohibits the trial court from finding that Hutson, in fact, was arraigned and pleaded not guilty. Third, he argues that the Commonwealth's failure on the first appeal to designate that portion of the record reflecting the arraignment and plea precludes reference to it now. Fourth, Hutson claims that the trial court did not have jurisdiction to use CR 60.01 to correct the record in the manner in which the court below did. Finally, Hutson reasserts arguments deemed moot by this court in Hutson I; i.e., that the trial court committed reversible error when it permitted proof of the prior felony offense by hearsay testimony and by judicial notice.

As a preliminary matter we should note that our examination of the now-complete record allows us to better understand why the Commonwealth did not discover proof of Hutson's arraignment sooner. The log entry for the videotape of Hutson's November 20, 1998, arraignment tells us little. In place of an entry on the log for "Case #" is the abbreviation "Crim Arrs" with no entry whatsoever under the headings "Style" or "Proceedings." The reason Knoebber, Hutson's attorney at trial, was unaware the arraignment had occurred is now clear. He was not present at the arraignment and his client, who was present, did not inform him it had occurred. Attorney Steve Franzen (Franzen) appeared on Hutson's behalf at the court's request and for the limited purpose of the arraignment and taking of a plea. Finally, no written record of the arraignment appeared in the file prior to this court's opinion in Hutson I.

215 S.W.3d 713

The arraignment itself was properly conducted. As is permissible, Hutson was present in open court by videoconference. Caudill v. Commonwealth, 120 S.W.3d 635, (Ky.2003), cert. denied, 542 U.S. 922, 124 S.Ct. 2877, 159 L.Ed.2d 781 (2004). Franzen, representing Hutson, acknowledged Joseph Hutson as the party named in the indictment, waived formal reading of the indictment, entered a not guilty plea on behalf of his client, reserved on any motions and requested a pretrial conference. "Under our rules of criminal procedure, arraignment is not a critical stage of the trial unless, of course, the accused enters a plea of guilty without benefit of counsel." Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky.1971). Hutson did not plead guilty. While Hutson I stands for the principle that a conviction cannot be sustained in the total absence of an arraignment and plea, it does not alter this court's view as expressed in Parrish. In any event, Hutson does not now claim that the arraignment was conducted improperly.

JURISDICTION OF TRIAL COURT UPON REMAND

Both parties assert and the court agrees that Hutson's perfection of his prior appeal of this case divested the Campbell Circuit Court of jurisdiction. Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky. 2000); Louisville & N. R Co. v. Paul's Adm'r, 314 Ky. 473, 235 S.W.2d 787, 793 (1950). However, Hutson asserts the trial court never again acquired the jurisdiction necessary to enter a nunc pro tunc pretrial order or amended judgment. We disagree.

Whatever the merit of Hutson's other claims of error, his argument that the trial court lacked jurisdiction to entertain the Commonwealth's motions on remand from this court must fail. "A trial court, in interpreting an appellate court's decision, is not acting outside its jurisdiction even if its interpretation is erroneous." Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky.2005)(emphasis added).

In broad terms, jurisdiction re-obtains in the trial court when the appellate court finishes its work and returns the case to the trial court with its decision. Prior to its amendment effective July 1, 1981, CR 76.30 required that jurisdiction remain in the appellate court until that court issued a specific order denominated a "mandate". Once the mandate was filed in the court from which the appeal was taken, the lower court was reinvested with jurisdiction of the matter. Begley v. Vogler, 612 S.W.2d 339, 341 (Ky.1981). The pre-amended rule defined mandate as "the work of the appellate court, issued by the clerk and directed to the court from which the appeal was taken, which makes effective the opinion disposing of the...

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17 practice notes
  • Baker v. Commonwealth, No. 2005-CA-001588-MR (Ky. App. 10/19/2007), No. 2005-CA-001588-MR.
    • United States
    • Court of Appeals of Kentucky
    • October 19, 2007
    ...of typical hallmarks indicating Board action, that the Board Page 20 Order was issued with Board approval. Hutson v. Commonwealth, 215 S.W.3d 708, 716 (Ky.App. 2006)(courts presume public officers perform the duties entrusted to them by law in good faith). If we are mistaken in that presump......
  • Walton v. Commonwealth, NO. 2018-CA-000380-MR
    • United States
    • Court of Appeals of Kentucky
    • February 28, 2020
    ...a critical stage of the trial unless, of course, the accused enters a plea of guilty without benefit of counsel." Hutson v. Commonwealth, 215 S.W.3d 708, 713 (Ky. App. 2006) (hereafter Hutson II; quoting Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky. 1971)). Hutson II simply restated the 3......
  • Coleman v. Campbell Cnty. Library Bd. of Trs., NO. 2016-CA-001642-MR
    • United States
    • Court of Appeals of Kentucky
    • January 5, 2018
    ...5 C.J.S. Appeal and Error § 978 at 481–83 (1993)citing Pieck v. Carran, 289 Ky. 110, 157 S.W.2d 744 (1941). Hutson v. Commonwealth , 215 S.W.3d 708, 713-14 (Ky. App. 2006).Thus, the circuit court’s action in deciding that the Opinion was to be applied prospectively only was well within the ......
  • Johnson v. Commonwealth, NO. 2018-CA-001838-MR
    • United States
    • Court of Appeals of Kentucky
    • March 13, 2020
    ...principle a defendant may legitimately appeal a trial court's interpretation of an appellate mandate. See, e.g., Hutson v. Commonwealth, 215 S.W.3d 708, 714 (Ky. App. 2006) (challenging the trial court's action on remand as not consistent with the appellate mandate). Consequently, Johnson's......
  • Request a trial to view additional results
17 cases
  • Baker v. Commonwealth, No. 2005-CA-001588-MR (Ky. App. 10/19/2007), No. 2005-CA-001588-MR.
    • United States
    • Court of Appeals of Kentucky
    • October 19, 2007
    ...of typical hallmarks indicating Board action, that the Board Page 20 Order was issued with Board approval. Hutson v. Commonwealth, 215 S.W.3d 708, 716 (Ky.App. 2006)(courts presume public officers perform the duties entrusted to them by law in good faith). If we are mistaken in that presump......
  • Walton v. Commonwealth, NO. 2018-CA-000380-MR
    • United States
    • Court of Appeals of Kentucky
    • February 28, 2020
    ...a critical stage of the trial unless, of course, the accused enters a plea of guilty without benefit of counsel." Hutson v. Commonwealth, 215 S.W.3d 708, 713 (Ky. App. 2006) (hereafter Hutson II; quoting Parrish v. Commonwealth, 472 S.W.2d 69, 71 (Ky. 1971)). Hutson II simply restated the 3......
  • Coleman v. Campbell Cnty. Library Bd. of Trs., NO. 2016-CA-001642-MR
    • United States
    • Court of Appeals of Kentucky
    • January 5, 2018
    ...5 C.J.S. Appeal and Error § 978 at 481–83 (1993)citing Pieck v. Carran, 289 Ky. 110, 157 S.W.2d 744 (1941). Hutson v. Commonwealth , 215 S.W.3d 708, 713-14 (Ky. App. 2006).Thus, the circuit court’s action in deciding that the Opinion was to be applied prospectively only was well within the ......
  • Johnson v. Commonwealth, NO. 2018-CA-001838-MR
    • United States
    • Court of Appeals of Kentucky
    • March 13, 2020
    ...principle a defendant may legitimately appeal a trial court's interpretation of an appellate mandate. See, e.g., Hutson v. Commonwealth, 215 S.W.3d 708, 714 (Ky. App. 2006) (challenging the trial court's action on remand as not consistent with the appellate mandate). Consequently, Johnson's......
  • Request a trial to view additional results

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