APPEAL FROM WOODFORD CIRCUIT COURT HONORABLE ROBERT G. JOHNSON, JUDGE ACTION NO. 08-CR-00047
The opinion of the court was delivered by: Clayton, Judge:
RENDERED: APRIL 12, 2013; 10:00 A.M.
BEFORE: CLAYTON, KELLER,*fn1 AND THOMPSON, JUDGES.
Appellant, Jeffery D. Given, appeals from an order granting the Commonwealth's motion to correct his sentence. He argues: (1) that the sentencing error was a judicial rather than a clerical error, which cannot be corrected more than ten days after the judgment became final; and (2) that his sentence of ten years of imprisonment is illegal and should be modified to a term of months. We affirm.
On June 4, 2008, Given was indicted in Woodford Circuit Court on the following charges: (1) Operating a Motor Vehicle While Under the Influence (DUI), Fourth Offense, Class D Felony; (2) Driving on a DUI Suspended License, Fourth Offense, While Driving Under the Influence, Class D Felony; (3) Speeding; and (4) Being a First-Degree Persistent Felony Offender (PFO). The Commonwealth presented Given with a written offer on a plea of guilty, which consisted of: (1) a recommended sentence of one year of imprisonment on the fourth offense DUI charge, enhanced to ten years of imprisonment by the PFO charge; (2) a sentence of one year of imprisonment on the fourth offense driving while on a DUI suspended license while driving under the influence, to run concurrently with the ten-year sentence; and (3) the speeding charge merged with the other counts. Given signed the written offer on a plea of guilty containing these stated terms. Given also signed a written guilty plea reflecting the terms of the agreement.
The trial court conducted a plea colloquy on December 22, 2008. During the hearing, Given's counsel stated that he believed the charge of driving while on a DUI suspended license should have been a third offense rather than a fourth offense as indicted. The Commonwealth stated that it had no objection to the amendment because the charge would remain a felony. During the colloquy, Given stated that he was pleading guilty to fourth offense DUI, third offense driving while on a DUI suspended license while under the influence, and first-degree PFO. The trial court's docket sheet for December 22, 2008, correctly reflected the amendment of fourth offense driving while on a DUI suspended license to third offense. However, following sentencing on February 4, 2009, the docket incorrectly stated that the fourth offense DUI was amended to third offense and incorrectly restored the amended third offense driving while on a DUI suspended license to fourth offense. The judgment entered reflected the incorrect amendment of fourth offense DUI to third offense. The trial court sentenced Given to eleven years of imprisonment (including a one-year sentence from a separate indictment) in accordance with the agreement and probated the sentence for five years, with six additional months of home incarceration.
In 2011, the Commonwealth filed a motion to revoke Given's probation after he received a new misdemeanor conviction. At this time, Given discovered the incorrect amendment and argued that a misdemeanor third offense DUI could not be enhanced by PFO and that his ten-year sentence was illegal and should be modified to a term of months. The Commonwealth then filed a motion to correct the judgment pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.10. The trial court granted the motion to correct the judgment concluding that the incorrect amendment was a clerical, rather than a judicial, error in an order entered on November 23, 2011. This appeal followed.
Given argues that the trial court erred by concluding that the amendment was a clerical error. He further argues that his ten-year sentence is illegal and should be modified to a term of months.
RCr 10.10 provides in pertinent part:
Clerical mistakes in judgments . . . 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. During the pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter ...