RENDERED: JUNE 23, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000516-MR CODY BAKER APPELLANT APPEAL FROM ANDERSON CIRCUIT COURT v. HONORABLE CHARLES R. HICKMAN, JUDGE ACTION NO. 14-CR-00068 COMMONWEALTH OF KENTUCKY APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, JOHNSON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Cody Baker brings this appeal from a March 29, 2016, Judgment and Sentence on Plea of Guilty of the Anderson Circuit Court sentencing Baker to ten-years imprisonment upon a guilty plea to complicity to commit robbery in the first degree. We affirm. On September 2, 2014, Baker was indicted by an Anderson County Grand Jury upon the offense of complicity to commit first-degree robbery.
Eventually, the Commonwealth and Baker reached a plea agreement. Under the terms thereof, Baker would plead guilty to complicity to commit robbery in the first degree, and the Commonwealth would recommend a ten-year sentence of imprisonment. In the Commonwealth s Offer on Plea of Guilty filed November 3, 2015, it was specifically stated that Baker was ineligible for probation, and the sentence of imprisonment would not be probated. By Judgment and Sentence on Plea of Guilty entered December 28, 2015, the circuit court sentenced Baker to ten-years imprisonment but probated the sentence for a period of five years. 1 One day later, on December 29, 2015, the Commonwealth filed and served upon Baker a Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend, or vacate the December 28, 2015, Final Judgment. Therein, the Commonwealth maintained that Baker was a violent offender under Kentucky Revised Statutes (KRS) 439.3401(1)(m) and was ineligible for probation pursuant to KRS 439.3401(3)(a). By Order entered February 17, 2016, the circuit court granted the CR 59.05 motion and vacated the December 28, 2015, Final Judgment. In so doing, the circuit court acknowledged that Baker was statutorily ineligible for probation: KRS 439.3401(1)(m) provides that one convicted of Robbery in the first degree is considered a violent offender, and KRS 439.3401(3)(a) provides that a violent offender shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed. The Commonwealth is 1 The Judgment and Sentence on Plea of Guilty was signed by the circuit court judge on December 22, 2015, but not entered until December 28, 2015, presumably due to the Christmas holiday. -2-
correct, pursuant to KRS 533.060(1) and KRS 439.3401(3)(a) Baker is not eligible for probation, and statutorily this Court may not probate his ten[-]year sentence. Then, by Judgment and Sentence on Plea of Guilty entered March 29, 2016, the circuit court sentenced Baker to ten-years imprisonment, and the sentence was not probated. This appeal follows. Baker contends that the circuit court erroneously vacated the December 28, 2015, Final Judgment. Baker seems to argue that the plea agreement was somehow violated when the circuit court vacated its December 28, 2015, Final Judgment that probated his sentence of imprisonment. However, he fails to specify the exact terms of the plea agreement that were offended. A review of the plea agreement clearly reveals that the Commonwealth did not agree to probate Baker s ten-year sentence of imprisonment. In fact, the Commonwealth s Offer on Plea of Guilty filed on November 3, 2015, plainly states that defendant understands that this sentence is to serve and he is not eligible for probation or shock probation. The record clearly demonstrates that Baker signed the Commonwealth s Offer on Plea of Guilty. Therefore, we reject Baker s claim on this issue. Baker also maintains that the circuit court lacked jurisdiction to vacate the December 28, 2015, Final Judgment. Specifically, Baker argues: [T]he Stallworth Court reiterated that, when one is tried for an offense, upon a finding of guilt, he is entitled to have his sentence fixed with certainty and finality. Constitutional restraints prevent subsequent -3-
enhancements. The importance of this purpose is further underscored in this case where Mr. Baker either served out or nearly served out the entirety of the alternative sentence imposed by the trial court. Thus, even where a Defendant would agree to such a sentence, and even when the prior sentence was the result of a mistake of law, without timely appeal the sentencing court may not regain jurisdiction and amend a sentence. (Citations omitted.) Baker s Brief at 6. Baker is apparently arguing that absent a direct appeal the circuit court lacked jurisdiction to vacate the December 28, 2015, Final Judgment. We disagree. It is well-established that CR 59.05 is applicable to criminal actions. Silverburg v. Com., 587 S.W.2d 241 (Ky. 1979); Crane v. Com., 833 S.W.2d 813 (Ky. 1992). CR 59.05 is said to recognize that the court has control over its judgment with a right to alter, amend or vacate it within 10 days after entry of judgment upon proper motion being made. 7 Kurt A. Phillipps, Jr. & David V. Kramer, Kentucky Practice Rules of Civil Procedure Annotated Rule 59.05 (2016). Under CR 59.05, a motion must be served on the opposing party within ten days from the entry of the final judgment. In this case, the Final Judgment was entered December 28, 2015, and the Commonwealth filed and served a CR 59.05 motion to vacate the Final Judgment on December 29, 2015, well within the ten-day window. The circuit court granted the CR 59.05 motion on February 17, 2016, and vacated the December 28, 2015, Final Judgment due to a legal error concerning Baker s eligibility for probation. Under these procedural facts, it is clear that the circuit -4-
court possessed jurisdiction to vacate the December 28, 2015, Final Judgment under CR 59.05 and timely correct an unintended legal error. Baker lastly maintains that the circuit court violated [his] state and federal constitutional rights by granting the Commonwealth s motion to alter or amend the court s sentence because it is a double jeopardy violation. Baker s Brief at 4. Baker alleges that he was subject to multiple punishments for the same criminal act. In particular, Baker argues that he: Baker s Brief at 4. [W]as sentenced to a second punishment for one predicate act through being required to serve out the new sentence. Baker received the new sentence a mere seven days before his scheduled release date or potentially after having served the entire alternative sentence. He served over ninety percent of his ninety-day sentence before the amended sentence was ordered; his period of incarceration was nearly over. Baker understood that he would be released from incarceration on February 24, 2016, yet he remains incarcerated. In the case sub judice, Baker was initially sentenced to ten-years imprisonment probated for five years by the December 28, 2015, Final Judgment. As noted, within ten days thereof, the Commonwealth filed a timely CR 59.05 motion to vacate the December 28, 2015, Final Judgment due to a legal error committed by the circuit court as to eligibility for probation. The circuit court granted the motion and vacated the December 28, 2015, Final Judgment. The circuit court then sentenced Baker to ten-years imprisonment without probation by Final Judgment entered March 29, 2016. Thus, Baker was sentenced to one ten- -5-
year term of imprisonment by the March 28, 2016, Final Judgment, in accordance with his plea agreement. He was not subjected to multiple punishments for the same offense in violation of double jeopardy. See McNeil v. Com., 468 S.W.3d 858 (Ky. 2015). Under these facts, we conclude that double jeopardy was not implicated. For the foregoing reasons, the Judgment and Sentence on Plea of Guilty of the Anderson Circuit Court is affirmed. ALL CONCUR. BRIEF AND ORAL ARGUMENT FOR APPELLANT: Gregory E.J. Coulson Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky -6-