BRIEFS FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 09-CR-00096
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Charles Earl Byrns appeals from the Edmonson Circuit Court's denial of his motion seeking jail credit for time allegedly spent on pre-trial home incarceration pursuant to KRS 532.245. Following a careful review, we affirm.
Kentucky Revised Statutes.
On December 21, 2009, Byrns was indicted by an Edmonson County grand jury on multiple felonies stemming from a standoff with police on November 6, 2009, during which he fired multiple shots at the officers and others outside his home. Several months later, on June 21, 2010, based on an agreement between Byrns and the Commonwealth, the trial court amended bond from $100,000.00 cash to $100,000.00 surety or 10% cash, but imposed numerous non-financial conditions. Of importance to this appeal, upon posting bond and being released from custody, one of the non-financial conditions required Byrns to remain on "home incarceration" pending resolution of the criminal charges. Bond was posted on June 23, 2010, and Byrns was released from confinement. No electronic or global positioning monitoring was ordered or undertaken during the period of Byrns's pre-trial release.
Approximately twenty-eight months later, a plea agreement was reached and on October 31, 2012, Byrns moved the trial court to enter a guilty plea based on the Commonwealth's offer. Pursuant to the agreement, Byrns would receive an aggregate sentence of ten years' imprisonment and the Commonwealth would oppose any kind of probation. The trial court accepted the plea and set a sentencing hearing for January 14, 2013. Byrns remained free on his existing bond until sentencing.
A presentence investigation report (PSI) was prepared which indicated Byrns was entitled to 229 days of jail custody credit. The PSI did not indicate Byrns had served any formal home incarceration term, noting only that his bond status was "partially secured $100000.00 (sic) paid on 6/23/2010." No jail custody credit for the time of his release from custody on June 23, 2010, to the date of sentencing in 2013 was indicated. At the sentencing hearing, Byrns indicated he had reviewed the PSI, discussed it with his attorney, and suggested a single change to correct information related to the crimes charged. He did not note any other needed corrections to the report. Importantly, Byrns did not challenge the PSI's statement that he was entitled to jail custody credit of just 229 days.
Probation was denied and Byrns was taken into custody to begin service of his ten year sentence. The trial court made no mention of jail custody credit. A formal, written sentencing order conforming to the trial court's oral rulings and the information contained in the PSI was entered on January 14, 2013. Byrns did not appeal his convictions, sentence or the trial court's jail-time credit calculation. However, Byrns moved the trial court for shock probation on two occasions, but was denied both times.
On May 6, 2013, citing KRS 532.245, Byrns moved the trial court for an order affording him jail custody credit for the time he spent on pre-trial home incarceration. The trial court overruled the motion following a brief hearing. This appeal followed.
Byrns's sole contention on appeal is that the trial court erred in denying his motion for jail-time credit pursuant to KRS 532.245. He insists the mandatory nature of the statutory language mandates he receive credit for the time he spent on home incarceration pursuant to the trial court's order permitting pre-trial release. Byrns fails to explain the nearly four month delay following sentencing prior to his seeking the requested relief.
In Winstead v. Commonwealth, 327 S.W.3d 479 (Ky. 2010), the Supreme Court of Kentucky concluded there are three ways to challenge a trial court's calculation of jail-time credit. First, Byrns could have filed a timely direct appeal. He did not. Second, pursuant to CR 59.05, Byrns could have filed a motion to alter, amend or vacate the judgment within ten days after it became final. He did not. Third, Byrns could have filed a motion pursuant to RCr 10.10, which permits a trial court to correct a clerical error "at any time on its own initiative or on the motion of any party . . . ." Id. at 485-86. He did not.
Kentucky Rules of Civil Procedure.
It is well-established that a trial court loses jurisdiction over a defendant ten days after final judgment is entered. See e.g., Rollins v. Commonwealth, 294 S.W.3d 463, 466 (Ky. App. 2009) (citing Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky. 1979)).
Kentucky Rules of Criminal Procedure.
Byrns did not and cannot now avail himself of any of the prescribed forms of relief. Therefore, the circuit court properly denied his motion. The judgment is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Matthew J. Baker
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Tami Allen Stetler
Assistant Attorney General