Connie Dale Baker v. Commonwealth of Kentucky ( 2020 )

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000986-MR
CONNIE DALE BAKER APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
v. HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 92-CR-00089
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
DISMISSING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
CALDWELL, JUDGE: Connie Dale Baker seeks review of an order denying
relief on a motion he filed pursuant to Kentucky Rules of Criminal Procedure
(RCr) 10.10 and another motion seeking to withdraw a guilty plea he entered in
1993. As this Court lacks jurisdiction, an indispensable party was not named, and
this matter is moot, we dismiss.
FACTS
Connie Dale Baker was tried and convicted of various felony offenses
in the Boyle Circuit Court in 1993 and was sentenced to a total concurrent sentence
of imprisonment for life without the benefit of parole for twenty-five years. On
direct appeal, the Kentucky Supreme Court affirmed his convictions and sentences.
As he neared having served twenty-five years and was anticipating
parole eligibility, Baker was informed by the Department of Corrections that he
would not be eligible for some additional twelve years as the parole eligibility of
his various sentences must be “stacked.” He filed various challenges to this
incorrect interpretation, amongst them the motions on appeal in the instant case—a
motion to withdraw his guilty plea and a motion to correct a clerical error pursuant
to RCr 10.10.
During the pendency of this matter, Baker actually received the relief
he sought here when another pleading he had filed in the Franklin Circuit Court, a
petition for declaration of rights, caused the Department of Corrections to conduct
an audit of his parole eligibility calculation which resulted in identification of the
calculation error. Baker was given a parole hearing in August of 2019, at which
time parole was deferred for sixty months.
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ANALYSIS
1. Mootness
When during the pendency of an appeal, circumstances change such
that the relief sought via the appeal is superfluous or otherwise granted, such as
here, the appeal becomes moot.
The general rule is, and has long been, that “where,
pending an appeal, an event occurs which makes a
determination of the question unnecessary or which
would render the judgment that might be pronounced
ineffectual, the appeal should be dismissed.” Louisville
Transit Co. v. Dep’t of Motor Transp., 286 S.W.2d 536,
538 (Ky. 1956); Choate v. Koorsen Protective Services,
Inc., 929 S.W.2d 184 (Ky. 1996); Commonwealth,
Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433
S.W.3d 341 (Ky. 2014).
Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014).
We take judicial notice of the declaratory rights petition and the
resultant order of the Franklin Circuit Court.1 As recited in that Franklin Circuit
Court order, the Department of Corrections caused an audit to be conducted of
Baker’s parole eligibility upon receipt of the declaratory rights petition, which
resulted in the correction of the error he sought. Because the relief he requests
here was already received by him, this action is moot.
1
19-CI-00157, Franklin Circuit Court, Division II.
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2. Lack of Jurisdiction
The circuit court was without jurisdiction to entertain either of the
motions filed by Baker. RCr 8.10 requires that a motion to withdraw a guilty plea
be filed between the entry of the plea and the entry of final judgment; “[a]t any
time before judgment the court may permit the plea of guilty . . . to be withdrawn
and a plea of not guilty substituted.” (Emphasis added.) Of course, a circuit court
loses jurisdiction ten days after entry of the judgment and no longer is imbued with
jurisdiction to consider such a motion. Kentucky Rules of Civil Procedure (CR)
52.02.
There was no clerical error which needed correction; a clerical error
involves an apparent error, such as an incorrect or missing date, a transcribing
error, or a mathematical error when calculating a judgment.2 There was no error of
any sort in the judgment. All error was in the Department of Corrections’
interpretation, not within the judgment. Again, as there was no error, clerical or
otherwise, in the judgment, the circuit court was without jurisdiction of any sort to
modify the judgment some twenty-six years after its entry.
As the circuit court had no jurisdiction, this Court is likewise without
jurisdiction. “As the trial court did not have jurisdiction to adjudicate Appellant’s
2
See Machniak v. Commonwealth, 351 S.W.3d 648, 652-54 (Ky. 2011).
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motion, this Court is similarly without jurisdiction to hear any appeal therefrom.”
Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007).
3. Indispensable Party
Failure to name an indispensable party, to wit, the Department of
Corrections in this matter, requires dismissal of the action, and it was error for the
circuit court not to so dismiss. Because the relief that Baker was seeking was an
order instructing the Department of Corrections to find he had become parole
eligible, the Department must have been a named party.
In Mason v. Commonwealth, on direct appeal the Appellant raised
several errors related to trial and sentence. 331 S.W.3d 610 (Ky. 2011). In
discussing a sentencing error, the Supreme Court noted that it appeared the
Department of Corrections might have improperly classified the Appellant and
incorrectly calculated his parole eligibility. In holding that such error did not
involve the judgment of the circuit court, but rather the post-judgment decision-
making of the Department of Corrections, the Supreme Court stated,
it is beyond dispute that a court generally should not
issue an opinion or judgment against an entity that is not
a party to the action or is not otherwise properly before
the court. We decline, therefore, to order the Department
of Corrections—which has not been made a party to this
appeal and is not properly before us to either defend its
action or to confess error—to take any affirmative action
with regard to Mason’s offender classification or parole
eligibility.
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Id. at 629.
Thus, the same result here. Parole eligibility determinations are the
purview of the Department of Corrections, and, thus, they were an indispensable
party in this action challenging the determination of Baker’s parole eligibility. “It
is well-established that failure to name an indispensable party in the notice of
appeal results in dismissal of the appeal.” Slone v. Casey, 194 S.W.3d 336, 337
(Ky. App. 2006). Even if the other previously identified impediments to this
litigation were absent, this failure to include an indispensable party would require
dismissal.
CONCLUSION
We find that this matter is moot as the declaration of rights
contemporaneously filed by Baker successfully brought him the relief he sought in
the circuit court. We find that the circuit court had no jurisdiction to consider the
motions filed therein, and therefore this Court has no jurisdiction. Lastly, we find
that Baker failed to include an indispensable party when he did not name the
Department of Corrections. All of the above require dismissal. Therefore, we
hereby dismiss this appeal.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Connie Dale Baker, pro se Daniel Cameron
Burgin, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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