Dashawn Johnson v. Commonwealth of Kentucky ( 2021 )

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0500-MR
DASHAWN JOHNSON APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 16-CR-00073
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON,
JUDGES.
THOMPSON, K., JUDGE: Dashawn Johnson, pro se, appeals from the Henderson
Circuit Court’s order denying his Kentucky Rules of Civil Procedure (CR) 60.02
motion to vacate his conviction and sentence, arguing because the indictment he
was convicted under was previously dismissed that his conviction and sentence
must be vacated. Because the dismissal of this indictment was a clerical error and
was properly corrected, we affirm.
In June and July of 2015, the police conducted controlled drug buys
using a confidential informant. In reviewing recordings of the controlled buys, the
police identified Johnson as the person selling drugs to the confidential informant.
On January 26, 2016, the police executed a search warrant at Johnson’s residence.
Officers found multiple bags of heroin weighing over two grams, multiple bags of
methamphetamine weighing over two grams, a loaded .357 revolver under a bed
near the drugs, and scales. They arrested Johnson.
On March 3, 2016, Johnson was indicted in 16-CR-00073 on two
counts of first-degree trafficking in a controlled substance (heroin and
methamphetamine, firearm enhanced), one count of felony possession of a firearm,
and being a first-degree persistent felony offender (PFO-1). While the caption
indicated the PFO charge would enhance each count, the body of the indictment
left off the PFO enhancement for the felon in possession of a handgun count.
On August 1, 2016, Johnson elected to have a bench trial on the
convicted felon in possession of a handgun charge in 16-CR-00073.
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On August 2, 2016, the grand jury elected to re-indict Johnson in 16-
CR-00298 to change count three to reflect that Johnson was a convicted felon in
possession of a handgun while being a PFO 1.1
Johnson’s bench trial in 16-CR-00073 took place on August 3, 2016.
Before the trial began, the following exchange took place between the parties and
the trial court:
Commonwealth Attorney: And another preliminary
matter . . . , your Honor, is . . . the issue of count three in
indictment 16-73 . . . there was some question in my
mind as to whether the language contained in the
narrative in count three in regard to the felon in
possession of a handgun correctly stated the charges
being convicted felon and being a first-degree persistent
felony offender that is contained in the caption but not in
the count. I understand that the counsel for the defense
agrees.
Trial Court: Parties have agreed to amend the indictment
to reflect that the language within the indictment itself
should be consistent with the language contained in the
caption of the indictment in that he would be charged
with being a convicted felon in possession of a handgun
and a persistent felony offender in the first degree.
Defense Counsel: Yes, your Honor, as we discussed
yesterday we have no objection to that amendment.
Trial Court: Alright.
Commonwealth Attorney: Just as a precaution, your
Honor, I want to let the court and [defense counsel] know
1
While a few records relating to the second indictment were filed by Johnson with his motions,
we do not have a complete record of that case.
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that yesterday coincidentally the grand jury met, did
again review the case and issued a new indictment with
that proceeding but we will dismiss that if we can
proceed under 73.
Defense Counsel: Okay.
Commonwealth Attorney: As a precautionary measure I
had to do that . . . . There is a new one that is 298 but we
will dismiss it at the conclusion of this case. It’s
identical.
Trial Court: Which now is the same charges, so it will be
dismissed.
The bench trial then took place and the trial court found Johnson guilty of being a
convicted felon in possession of a handgun, fixed his sentence at eight years, found
him guilty of being a PFO-1, and reset his sentence at fifteen years.
On August 9, 2016, at the arraignment for 16-CR-00298, the
Commonwealth made an ex parte motion to dismiss this indictment. An order
dismissing 16-CR-00073 was entered on August 15, 2016. It explained that
Johnson was indicted for those same charges in 16-CR-00298.
On September 1, 2016, an order was entered vacating the order of
dismissal in 16-CR-00073, noting “[t]he Commonwealth is proceeding with this
case, and dismissing the similar charges under Indictment No. 16-CR-298.” That
same day, 16-CR-00298 was ordered dismissed. No further action took place
regarding 16-CR-00298.
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On September 7, 2016, in 16-CR-00073, the judgment of conviction
and sentence was entered on the convicted felon in possession of a handgun charge
and being a PFO-1, with the trial court finding Johnson guilty and sentencing him
to fifteen years.
On September 23, 2016, after a jury trial, the jury found Johnson
guilty of the two trafficking charges but determined he was not in possession of the
firearm in furtherance of these offenses when he committed them. The jury
initially recommended seven-year sentences on each of the trafficking charges, to
be served consecutively, then found Johnson guilty of being a PFO-1 and
recommended that he be sentenced to ten years on each charge, consecutively. In
the final judgment entered on November 3, 2016, Johnson was sentenced to
consecutive ten-year sentences in accordance with the jury’s recommendation,
with these sentences to run concurrent to the previously imposed fifteen-year
sentence.
Johnson appealed on several grounds which are not relevant here and
the Kentucky Supreme Court affirmed. Johnson v. Commonwealth, 553 S.W.3d
213, 220 (Ky. 2018).
On October 18, 2018, Johnson filed a petition for a writ of habeas
corpus. He argued that the trial court’s dismissal of the first indictment became
final ten days later, this could not be changed by the trial court vacating such order
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seventeen days later, and that his judgment of conviction and sentence was thereby
void ab initio and he was entitled to an immediate release from custody.
On November 5, 2018, an order was entered denying Johnson’s
petition on the basis that “Johnson has not shown by affidavit that he is being
detained without lawful authority.” Johnson did not appeal.
On January 23, 2019, Johnson filed a petition for relief of judgment
pursuant to CR 60.02(e) and (f). Johnson argued he could not properly be
convicted where the underlying indictment was dismissed, and that dismissal
became final ten days later. He argued that the Commonwealth should have
appealed from the dismissal or he should have been re-indicted, but redocketing
the indictment after the dismissal became final was ineffective because the trial
court had already lost jurisdiction and its dismissal if in error was a judicial error
and not a clerical one. Therefore, Johnson argued he was entitled to have his
judgment vacated.
On February 15, 2019, an order was entered denying Johnson’s CR
60.02 motion. The circuit court explained the factual history surrounding the
dismissal and reinstatement of the indictment in 16-CR-00073:
[T]he Commonwealth announced its intention to reindict
Johnson on the same charges so the body would match
the caption in charging Johnson with being a First Degree
Persistent Felony Offender as to Count 3 (the handgun
charge). The defendant waived the necessity of
reindicting him and agreed that 16-CR-073 could be
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amended to reflect that change. The Court allowed the
amendment. . . .
Despite the defendant’s agreement, the
Commonwealth did represent the charges in 16-CR-298
to the grand jury, which resulted in Indictment No. 16-
CR-298. . . .
At arraignment on August 9, 2016, the
Commonwealth moved to dismiss 16-CR-073 because
the defendant’s agreement to amend 16-CR-073 and
proceed in that case made 16-CR-298 unnecessary. The
defendant made no objection, and the Court sustained the
motion to dismiss 16-CR-298. However, the
Commonwealth tendered an order dismissing 16-CR-
073, which the Court signed. The mistake became
apparent; and on September 1, 2016, the Court entered an
order vacating the order dismissing 16-CR-073. . . .
The circuit court then ruled that the order of dismissal was a clerical error, and the
written order reinstating the indictment just corrected the record to reflect what
happened, explaining: “There was no need to reinstate the indictment because it
was never dismissed. The order saying it was dismissed was a clerical error which
the Court corrected by vacating it.” The circuit court also noted that Johnson
waived any procedural error by failing to raise the issue until after conviction and
was not prejudiced where he had fair notice of the charges against him.
On appeal, Johnson argues that the first indictment could not be
revived by the untimely order vacating the dismissal because this was a judicial
error.
CR 60.02 provides in relevant part:
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On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: . . . (e) the judgment is void, or has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application; or (f) any other
reason of an extraordinary nature justifying relief. The
motion shall be made within a reasonable time[.]
We review the circuit court’s denial of Johnson’s CR 60.02 motion for abuse of
discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky.App. 2000)
The Kentucky Rules of Criminal Procedure (RCr) 10.10 provides in
relevant part: “Clerical mistakes in judgments, orders or other parts of the record
and errors therein arising from oversight or omission 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.”
As explained in Cardwell v. Commonwealth, 12 S.W.3d 672, 674 (Ky.
2000):
[T]he distinction between clerical error and judicial error
does not turn on whether the correction of the error
results in a substantive change in the judgment. Rather,
the distinction turns on whether the error “was the
deliberate result of judicial reasoning and determination,
regardless of whether it was made by the clerk, by
counsel, or by the judge.” Buchanan v. West Kentucky
Coal Company, Ky., 218 Ky. 259, 291 S.W. 32, 35
(1927). “A clerical error involves an error or mistake
made by a clerk or other judicial or ministerial officer in
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writing or keeping records . . . .” 46 Am.Jur.2d,
Judgments § 167.
Clear clerical errors include “an incorrect or missing date on a document in the
record, a mistake made when transcribing numbers, or a mathematical error when
calculating a judgment[.]” Machniak v. Commonwealth, 351 S.W.3d 648, 652
(Ky. 2011) (citations omitted). In Wides v. Wides, 300 Ky. 344, 349, 188 S.W.2d
471, 474 (1945), the Court noted in dicta that there could be a clerical error if the
terms “party of the first part” and “party of the second part” were transposed in the
judgment. Similarly, in Cardwell, 12 S.W.3d at 674-75, the Court ruled that an
omission in a judgment was a “clerical error” because there “was a mistake made
in reducing the oral judgment to writing.”
Such reasoning makes it evident that Johnson is not entitled to CR
60.02 relief because the circuit court correctly determined that the judgment was
properly being enforced. Johnson always knew what the charges against him were
and he orally consented to the amendment of the indictment 16-CR-00073, to be
tried under that indictment as amended, and agreed it was appropriate for
indictment 16-CR-00298 to be dismissed. The trial court’s initial erroneous
dismissal of indictment 16-CR-00073 rather than 16-CR-00298 resulted from the
transposition of these indictment numbers, rather than from any judicial reasoning
that it was appropriate to dismiss 16-CR-00073 and proceed under 16-CR-00298
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instead. This was a clerical error which could properly be corrected under RCr
10.10 and was corrected once the mistake was noticed.
However, should there be any doubt that this is the correct outcome
here, we note that in a remarkably similar situation, the exact question of whether
the dismissal of the wrong indictment is a clerical error was explored in Baber v.
Commonwealth, No. 2002-SC-0420-MR, 2004 WL 1364283, *6-7 (Ky. Jun. 17,
2004) (unpublished),2 which came before the Kentucky Supreme Court on direct
appeal:
Lastly, Appellant contends that the trial court lost
jurisdiction to proceed against him when it mistakenly
dismissed Indictment No. 99-CR-85 (containing the
charges relating to the Computer Renaissance checks),
rather than Indictment No. 99-CR-88 (containing the
Centsible Rental Car charge). Prior to trial, the court
realized that it had mistakenly listed the wrong
indictment number in the Order of Dismissal. The court
made the correction with a pen in open court and two
days after the trial entered an Order Setting Aside Order
of Dismissal. Appellant concedes that this error is not
preserved. Nonetheless, Appellant’s argument has no
merit.
. . . The error here was purely a clerical error, and the
trial court stated so as he was marking through the wrong
indictment number. At no time was Appellant under the
impression that the charges regarding the checks written
to Computer Renaissance had been dismissed. The
discussion accompanying the Motion to Dismiss
2
Pursuant to CR 76.28(4)(c) we may consider this unpublished opinion because there is no
published opinion adequately addressing this issue.
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concerned only the count relating to the Centsible Rental
Car check. There was no error.
Although we conclude that there was no error in the reinstatement of
indictment 16-CR-00073 after the clerical error resulting in its previous dismissal
was discovered, we also note that Johnson repeatedly waived any possible error.
Johnson failed to make any objection to the judgment of conviction and sentence
being entered on the convicted felon in possession of a handgun charge and being a
PFO-1 after the indictment in 16-CR-00073 was erroneously dismissed, failed to
object to the reinstatement of the indictment, failed to object to being tried in 16-
CR-00073 on the remaining charges after the indictment was reinstated, failed to
raise this issue on direct appeal, did not appeal from the denial of his petition for
habeas corpus, and delayed in bringing his CR 60.02 challenge on this ground.
Waiver and unreasonable delay are additional reasons to affirm.
Accordingly, we affirm the Henderson Circuit Court’s order denying
Johnson’s CR 60.02 motion to vacate his conviction and sentence.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Dashawn Johnson, pro se Andy Beshear
West Liberty, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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