Opinion
NO. 2014-CA-001264-MR
03-25-2016
DAVID TIDWELL IV APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David Tidwell, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 12-CR-00002 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; JONES AND NICKELL, JUDGES. NICKELL, JUDGE: David Tidwell IV, pro se, has appealed from the Montgomery Circuit Court's denial of his motion for post-conviction relief pursuant to CR 60.02. In his motion, Tidwell contended the Commonwealth had breached the plea agreement in his case because he did not receive the 1,028 days of Parole Street Credit (PSC) he was promised as an inducement to plead guilty. Following a careful review, we discern no error and affirm.
Kentucky Rules of Civil Procedure.
On December 16, 2011, Tidwell escaped from the Montgomery County Regional Detention Center while being held on pending felony charges in Bath County. After turning himself in to law enforcement authorities and being returned to the detention center, Tidwell was charged via information with escape. On January 10, 2012, Tidwell entered a guilty plea in Montgomery Circuit Court on a charge of escape in the second degree. In exchange for his plea, the Commonwealth agreed to recommend a sentence of one-year imprisonment to run consecutively to any other sentences he was currently serving. The trial court found Tidwell's plea to be knowing, voluntary and intelligent and sentenced him pursuant to the recommendation. During the plea colloquy, Tidwell affirmed to the trial court his plea was not based on any offers or promises other than the Commonwealth's sentencing recommendation embodied in the written plea agreement.
Kentucky Revised Statutes (KRS) 520.030, a Class D felony.
Also on January 10, 2012, Tidwell entered a guilty plea on the pending Bath County felony charge and received an agreed upon five-year sentence to be served consecutively to the one-year sentence imposed in the instant matter. --------
On June 21, 2013, Tidwell filed a motion pursuant to CR 60.02(e) and (f) seeking amendment of the judgment in this matter. Therein, Tidwell contended the Commonwealth had breached its plea agreement because he was not being credited by the Kentucky Department of Corrections (DOC) for 1,028 days of PSC against his sentence. He alleged he had been promised this credit as an inducement to accept the plea offer. The Commonwealth opposed the motion.
On July 19, 2013, the trial court denied Tidwell's motion upon concluding his guilty plea had been "willingly, freely and voluntarily" made and nothing in the record contained even a singular reference to PSC. Finally, the trial court indicated authority to grant any such credit lies completely with the DOC, not with the Courts or the Commonwealth. This appeal followed.
The Supreme Court of Kentucky has held "actions under CR 60.02 are addressed to the 'sound discretion of the court and the exercise of that discretion will not be disturbed on appeal except for abuse.'" Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting Richardson v. Brunner, 327 S.W.2d 572, 574 (1959)). The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 AmJur.2d Appellate Review § 695 (1995)). Therefore, the trial court's decision must be affirmed absent a showing of some "flagrant miscarriage of justice." Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
In this Court, Tidwell continues to contend he was induced to plead guilty based on assurances he would receive 1,028 days of PSC. He argues the failure of DOC to grant him the credit constitutes a breach of the plea agreement and the trial court's refusal to enforce this provision of the agreement voids his sentence. We disagree.
Our review of the record reveals the Commonwealth's offer made no mention of any credits, nor did its plea agreement with Tidwell—which was accepted by the trial court. Tidwell's contention directly contradicts his statement given under oath during the plea colloquy that no other promises or inducements had been made in exchange for his guilty plea. Although he argues the trial court should grant him the requested credits, it is clear Tidwell is receiving the benefit of his bargain and the Commonwealth has fully complied with its offer of recommending the minimum statutory sentence. Further, as the trial court correctly noted, the decision to award PSC lies strictly within the DOC's authority.
Based on the provisions of KRS 439.344(1), the DOC determined Tidwell was not entitled to the credit because he was "returned to prison as a parole violator for a new felony conviction." If Tidwell wishes to challenge this determination, he may attempt to do so by proceeding against the DOC. Hill v. Thompson, 297 S.W.3d 892 (Ky. App. 2009). The trial court is simply without authority to order the DOC to give Tidwell the PSC he seeks. Thus, we discern no abuse of discretion in the trial court's denial of the requested relief.
For the foregoing reasons, the judgment of the Montgomery Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David Tidwell, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky