Winstead v. Commonwealth of Ky., No. 2009–SC–000019–DG.

• Decision Date: 16 December 2010
• Docket Number: No. 2009–SC–000019–DG.
• Citation: 327 S.W.3d 479
• Parties: Richard WINSTEAD, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

327 S.W.3d 479

Richard WINSTEAD, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000019–DG.

Supreme Court of Kentucky.

Dec. 16, 2010.

[327 S.W.3d 481]

Joseph Brandon Pigg, Samuel N. Potter, Assistant Public Advocates, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Stephen Bryant Humphress, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Chief Justice MINTON.

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. Winstead 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

[327 S.W.3d 482]

with a flagrant nonsupport charge but consecutively with any other “penitentiary sentence the defendant is currently serving.” ¹ In both its oral pronouncement of sentence 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 of jail-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 of jail-time credit was a judicial error that could not be corrected more than ten days after the entry of the 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 case]. Such a result is in violation of the express provisions of KRS 532.110(3).” ³

[327 S.W.3d 483]

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 Tennessee ⁴ 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 judgment more than ten days after the judgment is entered.⁵ Since the improper awarding of jail-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

[327 S.W.3d 484]

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 part of the enactment of the Kentucky Penal Code, KRS 532.120(3) provides, in relevant part, that “[t]ime 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.” (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 credit.” 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.⁸ Our research reveals, however, that the Department of Corrections is still required by law to inform a trial court about how much pretrial 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 reference 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 “presentence 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 of

[327 S.W.3d 485]

jail-time credit.¹⁰ KRS 532.120 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 conviction, our precedent at least arguably requires it to be included in the final judgment.

In a decision rendered shortly after the enactment of KRS 532.120, 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.” ¹¹ 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, although Winstead and the Commonwealth both now agree that the trial court erred by awarding Winstead jail-time credit, that issue was not raised in a timely direct appeal.¹⁴ Accordingly, the question we must answer in the appeal at hand is whether CR 60.02 is a proper procedural mechanism to challenge a trial court's allegedly improper calculation of jail-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

[327 S.W.3d 486]

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 judgment as expressed in the record. If it does, then the error is clerical in that the amended judgment either corrects language...