COMMONWEALTH OF KENTUCKY



COMMONWEALTH OF KENTUCKY

CLARK CIRCUIT COURT

DIVISION II

INDICTMENT NO. 03-CR-00010

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS. MOTION TO RECONSIDER

MOTION TO AMEND JUDGMENT TO REFLECT

ORIGINAL SENTENCE, PURSUANT TO CR 60.02

GARY XXXXX DEFENDANT

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Gary XXXXX originally pled to one and a half (1 ½) years on two Class D felonies. After the expiration of ten (10) days following entry of the judgment, his sentence was changed to four (4) years in exchange for being granted “shock probation.” The Kentucky Supreme Court in Stallworth and Gaddie, both infra, held that a judge loses jurisdiction to change the judgment following ten days after the judgment, and reinstated the original sentences of the appellants. Mr. XXXXX seeks the same relief in this case.

I. Facts

On May 5, 2003, Mr. XXXXX entered a guilty plea to first degree wanton endangerment (Count I) and Fleeing or Evading Police (Count II), and some misdemeanors.

On August 7, 2003, Mr. XXXXX was sentenced in open court to one year on Count I and one year on Count II, ordered to run partially concurrent and partially consecutive, for a total sentence length of one and a half years. He was not probated. The final judgment was entered on September 16, 2003.

By virtue of an “Order Setting Aside Final Judgment Filed September 16, 2003 and Filing Amended Sentence of Imprisonment” entered on November 18, 2003, two months and two days from the entry of the original judgment, Mr. XXXXX was resentenced to 2 years on Count I and 2 years on Count II to run consecutively for a total sentence length of 4 years. At the same time, Mr. XXXXX was “shock probated” in an “Order Setting Aside Sentence of Imprisonment and Granting Shock Probation,” entered on November 18, 2003.

Mr. XXXXX was again unable to complete the terms of his probation, and on March 17, 2009 the Court entered an 2009 “Order Setting Aside Sentence of Probation and Imposing a Sentence of Imprisonment,” and the remainder of his current four (4) years sentence was imposed.

II. The Stallworth Case

In Stallworth v. Commonwealth, 102 S.W.3d 918 (Ky. 2003), the Kentucky Supreme Court held that Shaun Stallworth was entitled to have his original ten (10) year sentence reinstated, in spite of the fact that he had bargained for a shock probation by agreeing to accept a longer sentence of twenty (20) years in the event he could not complete his terms and conditions of probation.

Originally, Shaun Stallworth had been charged as an adult on fifteen class D felonies and misdemeanor offenses and had pled to 10 years. His sentence was probated. However, he was unable to live up to the terms, and subsequently his probation was revoked and his 10 year sentence was reinstated.

Later Stallworth filed a motion for shock probation. At the hearing the Court shock probated him, but also changed his sentence from ten years to twenty years:

Court: You understand that, if you don’t [complete the Teen Challenge Program] successfully…then you’re looking at twenty years, less credit for time served? Do you understand that?

Stallworth: Yes, sir, I understand.

Court: And, you’re doing this voluntarily, freely, intelligently, and understandingly?

Stallworth: Yes, sir.

Court: That it’s not a ten year sentence anymore, but it’s twenty years.

Stallworth: Yes, sir.

Following this colloquy, the Court gave him the benefit of the bargain and increased his sentence to 20 years should he be revoked.

Within two months of being shock probated, Stallworth violated the terms of his probation, was revoked, and sentenced to twenty (20) years. Stallworth appealed.

On appeal, the Supreme Court reversed the sentencing, and remanded to the Circuit Court with instructions to reinstate the original ten year sentence, holding:

Appellant’s purported waiver was ineffective because it attempted to waive his rights as to the finality of the length of the sentence, a matter unrelated to the proceedings then before the court and, moreover, a matter that the trial court no longer had no [sic] power to alter, amend, or vacate. We therefore hold that, because the trial court had no jurisdiction to amend Appellant’s final judgment, appellant is subject to only the ten (10) year sentence set forth in the final judgment. Id. at 924.

III. Stallworth is Reaffirmed by Gaddie

In 2007, the Kentucky Supreme Court reviewed the case of Commonwealth v. Gaddie, 239 S.W.3d 59 (Ky. 2007). Amanda Gaddie entered a guilty plea in district court to charges of prescription drugs not in original container, and possession of marijuana in exchange for 180 days conditionally discharged for two years. A condition of her discharge was to remain drug free; however, within two months Ms. Gaddie was positively tested for marijuana. As in the Stallworth case, she was given a second chance at probation. This time a condition of her release was that she successfully complete drug court; if she did not, however, her 180 day sentence would be increased to 12 months. Apparently cognizant of the holding in Stallworth, the Court actually went through the process of having the original sentence modified under CR 60.02, citing admission of drug court as an “extraordinary circumstance” sufficient to justify the modification. Ms. Gaddie agreed to these terms. However, the very next day she failed to appear at drug court. A bench warrant issued, and she was not apprehended until a year later. At that time she was arrested and sentenced to serve 12 months.

Ms. Gaddie served 180 days, and then filed a motion for habeas corpus on the grounds that the trial judge lacked jurisdiction to expand her sentence beyond the original 180 days. The Circuit Court denied relief, concluding that being allowed to participate in drug court was an extraordinary circumstance justifying a modification of the sentence under CR 60.02, and further reasoning that although Constitutional rights were at issue, they could be waived.

The Court of Appeals reversed the Circuit Court, holding that being allowed to go to drug court was not an “extraordinary circumstance” contemplated by CR 60.02.

The Kentucky Supreme Court granted discretionary review and reaffirmed Stallworth:

In deciding the issue of the amended judgment in Gaddie’s petition for a writ of habeas corpus, the circuit court relied on CR 60.02(f) in upholding the district court’s increase in the term of imprisonment, even though the district court did not rely on that provision in amending the final judgment. Preservation notwithstanding, on this point, we agree with the Court of Appeals that participation in the drug court program is not a reason of extraordinary nature justifying relief under CR 60.02(f)...

We now turn to the fact that Gaddie requested referral to the drug court program, which, the Commonwealth argues, necessarily required an increase in the term of imprisonment from 180 days to twelve months because 180 days is simply not enough punishment to act as an incentive for the completion of the drug court program. As discussed above, however, at the point when Gaddie agreed to referral to the drug court program, the district court no longer had the power to amend her final judgment to increase the term of imprisonment. Gaddie could not, by consent, give the court the power to revisit the original sentence.

Not only did the Kentucky Supreme Court reaffirm the holding of Stallworth, but also looked beyond the issue of error preservation to find that adding conditions of probation are not “extraordinary” enough under CR 60.02 to warrant a change of judgment even when all parties have agreed.

IV. Mr. XXXXX’ Original Judgment of One and a Half Years Must be Reinstated

The Circuit Court was without jurisdiction to change Mr. XXXXX’ original sentence of one and a half years to four years, whether done as a condition of granting shock probation (barred by Stallworth), or as a result of a set-aside judgment under CR 60.02 (barred by Gaddie.) It is immaterial that Mr. XXXXX received his benefit of the bargain by being probated, or that he knowingly, voluntarily and understandingly agreed to be resentenced to four. The Order setting aside his original judgment must itself be set aside, and his original sentence of one and a half years reinstated.

Respectfully submitted,

_____________________________

B. Scott West

Department of Public Advocacy

116 N. 2nd St.

Richmond, KY 40475

(859) 623-8413

Notice of Hearing

The Commonwealth will please take note that hearing on this matter will be on October 8, 2009.

Certificate of Service

I hereby certify that a true and correct copy of the foregoing motion was served via regular U. S. Mail, postage pre-paid, to the Hons. Charles Johnson and Heidi Engel, Asst. Commonwealth Attorneys, on this _______ of September, 2009.

______________________________

B. Scott West

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