Timothy Nolan v. Commonwealth of Kentucky ( 2023 )

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0232-MR
TIMOTHY NOLAN APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 17-CR-00487
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, ECKERLE, AND KAREM, JUDGES.
CALDWELL, JUDGE: Timothy Nolan (“Nolan”) appeals from the Campbell
Circuit Court’s order denying the relief he requested in a motion filed pursuant to
Kentucky Rule of Criminal Procedure (“RCr”) 11.42. Having reviewed the record
and the briefs of the parties, we affirm.
FACTS
In 2017, Nolan was indicted on a multitude of felony counts, most of
which involved allegations of a sexual nature. The victims of some of the counts
were minors. Following negotiations with the prosecution, Nolan entered guilty
pleas to twenty-one counts, reserving the right to challenge the constitutionality of
Kentucky Revised Statute (“KRS”) 529.100, the human trafficking statute, which
was the basis for some of the counts.
One of the counts had been amended to the charge of unlawful
transaction with a minor under the age of sixteen (16) with a controlled substance.
During his colloquy, the trial court read the factual basis for the amended charge to
Nolan. Nolan entered a guilty plea to that count and many others. Nolan clearly
understood not only the factual basis for the counts, but their consequences. Nolan
was an attorney and had been a district court judge in Campbell County for
decades, though he had not served as a judge for some time prior to his arrest and
prosecution.
When Nolan appeared before the court again for sentencing, he
informed the court that he had changed his mind and wished to withdraw his plea.
Nolan specifically argued that the one count of unlawful transaction with a minor
under sixteen (16) with a controlled substance was factually incorrect. He argued
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that he did not realize his plea would require him to complete the Sex Offender
Treatment Program in prison before he would be eligible for parole consideration.
At the sentencing, Nolan’s privately retained counsel moved to
withdraw, and Nolan was appointed a public defender. He requested to be allowed
to act as his own co-counsel and the court held a hearing pursuant to Faretta v.
California.1 The court determined Nolan capable of acting as co-counsel and the
matter was set for a hearing on the motion to withdraw the plea. That motion was
ultimately denied, and Nolan was sentenced in accord with the plea deal.
Nolan filed a motion for shock probation soon thereafter and, during
the litigation of the motion, it was discovered that the judgment erroneously left
out the phrase “commercial sexual activity” in relation to each of the human
trafficking counts to which Nolan had pleaded guilty. However, during
sentencing, the fact that he had paid minors for sexual conduct had been read into
the record during the entry of the plea and he had specifically pleaded guilty to
each count. The trial court entered an amended judgment with the language
included and Nolan appealed from the amended judgment.
On direct appeal, the Kentucky Supreme Court affirmed the trial
court, holding that the failure to include the phrase “commercial sexual activity”
had been an error of a clerical nature. On appeal, Nolan also raised the
1
422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
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constitutionality of the human trafficking statute and alleged that the trial court had
interfered with his right to counsel. The Supreme Court was unpersuaded by either
of those arguments and affirmed the convictions and sentence.
Nolan then filed the RCr 11.42 motion now before us. We affirm.
STANDARD OF REVIEW
The denial of an RCr 11.42 motion is reviewed on appeal for an abuse
of the trial court’s discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548
(Ky. 1998). Abuse of discretion has been defined as being arbitrary, unreasonable,
unfair, or unsupported by sound legal principles. Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999) (citations omitted).
ANALYSIS
1. Amendment of Judgment
Nolan alleges that the trial court erred in not allowing him the
opportunity to withdraw his plea pursuant to RCr 8.10 when it amended the
judgment to add the phrase “commercial sexual activity.” Nolan alleges that the
change resulted in him having to serve 85% of his sentence before he would be
eligible for parole, rather than 20% as was acknowledged by the trial court at the
time of his sentencing. He insists that the amendment amounted to the trial court
“rejecting” the plea agreement, implicating RCr 8.10, which reads, in part:
If the court rejects the plea agreement, the court shall, on
the record, inform the parties of this fact, advise the
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defendant personally in open court or, on a showing of
good cause, in camera, that the court is not bound by the
plea agreement, afford the defendant the opportunity to
then withdraw the plea, and advise the defendant that if
the defendant persists in that guilty plea the disposition of
the case may be less favorable to the defendant than that
contemplated by the plea agreement.
Even if we were persuaded that the amendment amounted to a
“rejection” of the plea agreement, which we are not, we are bound to follow the
decision of the Kentucky Supreme Court in the direct appeal. The Supreme Court
has already determined that the amendment corrected a “clerical error.” The
Supreme Court clearly already considered and passed judgment on this question,
and we do not have the authority to rule differently:2
A trial court generally loses power to amend its
judgment ten days after its entry. Winstead v.
Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010).
However, the court may amend a clerical error as
opposed to judicial errors. RCr 10.10 provides that
“[c]lerical mistakes in judgments . . . 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. . . .” Machniak v. Commonwealth provides
guidance for determining whether an error is clerical or
judicial:
[A] discrepancy between a trial
court’s intended sentence and the final
judgment is a clerical error where the
2
“The Court of Appeals is bound by and shall follow applicable precedents established in the
opinions of the Supreme Court and its predecessor court.” Kentucky Supreme Court Rule
1.030(8)(a).
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intended sentence was explicitly expressed
by the trial court and fully made known to
the parties, and such is readily apparent from
the record of the sentencing hearing, with no
credible evidence to the contrary.
351 S.W.3d 648, 654 (Ky. 2011).
As described supra, a human trafficking
conviction involves either “forced labor or services” or
“commercial sexual activity.” KRS 529.010(5). Nolan’s
September 14, 2017 indictment included, among other
things, nineteen counts of human trafficking, human
trafficking of a minor, and criminal attempt human
trafficking of a minor. All of those counts included the
language “commercial sexual activity.” The written plea
agreement, signed by Nolan, failed to include the words
“commercial sexual activity” in referencing the amended
charges, but the facts for the human trafficking-related
convictions involved sexual activity in exchange for
payment of money or drugs, which constitutes
“commercial sexual activity.” During the plea colloquy,
the trial court read the facts of each count summarized in
the plea agreement and Nolan either admitted he engaged
in the conduct for each count or admitted there was
evidence sufficient to convict him of each count.
The written plea agreement also expressly required
Nolan to register as a lifetime sex offender (consistent
with the requirement for the amended offenses of
Promoting Human Trafficking of Minor (Counts 1-4) and
the amended offense of Criminal Attempt Human
Trafficking of Minor (Count 25)), and “cooperate with
the Commonwealth in the investigation and prosecution
of other perpetrators of Human Trafficking, or any
crimes consisting of sex offenses, pornography, or other
offense related thereto. . . .” The trial court orally noted
Nolan’s requirement to register as a sex offender in its
plea colloquy with Nolan. The Judgment and Sentence
on Plea of Guilty included, as conditions of the sentence
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imposed, the usual requirements that accompany sex
crimes, i.e., completion of sex offender treatment,
submitting a blood sample for DNA identification, HIV
testing, sex offender registration notification, residency
restrictions, and a five-year additional conditional
discharge period post-incarceration.
The Commonwealth also points out that Nolan
acknowledged in his written motion to withdraw his plea
that he was aware he would have to register as a sex
offender but complained about having to admit to the
facts of one of the counts before he could complete the
Sex Offender Treatment Program. When rejecting the
plea withdrawal motion, the trial court found Nolan was
aware of the program before entering the plea, that it was
part of the plea negotiations, and that the Commonwealth
had agreed to expedite transfer to the correctional
institution so he could get started in the program
promptly.
We agree with the trial court that it is impossible to
conclude anything other than that Nolan knowingly pled
guilty to and was found guilty of crimes involving
commercial sexual activity and that the court sentenced
him for those commercial sexual activity crimes. A
clerical error occurred when the language “commercial
sexual activity” was omitted from the order when
referencing the human trafficking offenses but the trial
court properly corrected that clerical error by amending
the judgment. We reject Nolan’s argument to the
contrary.
Nolan v. Commonwealth, No. 2018-SC-000321-MR, 2020 WL 4047517, at 9-10
(Ky. Jul. 9, 2020).
Further, there is no evidence to support Nolan’s contention to this
Court that the addition of the phrase “commercial sexual activity” in the amended
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judgment caused his parole eligibility to be increased to 85% from 20%. In fact,
he appeared before the Parole Board on March 9, 2021, well before the brief in this
matter was submitted to the Court – a fact which we take notice of pursuant to
Kentucky Rule of Evidence (“KRE”) 201.3 As he was sentenced to a total term of
twenty (20) years’ imprisonment, if his parole eligibility was to be 85%, he would
not have been eligible to see the Parole Board until he served seventeen (17) years.
As his term of imprisonment began in 2018, he clearly did not serve 85% of his
sentence before being seen by the Parole Board in 2021.4
2. Factual Basis of Charge
Nolan alleges that there was an insufficient factual basis for the
charge of unlawful transaction with a minor under the age of 16 involving a
controlled substance. However, Nolan had already entered the plea by the time he
alleges that counsel was ineffective for not providing proof of the victim’s age at
the time Nolan first met her, which he alleges was over 18. He had that knowledge
at the time he entered the plea and remained silent, so he cannot now complain that
his attorney was ineffective for not presenting information of which he was aware.
3
http://kool.corrections.ky.gov/KOOL/Details/479751.
4
We note that Nolan has appended documents to the Reply Brief concerning his classification
and whether the Department of Corrections has considered him a sex offender such that he
should be enrolled in the Sex Offender Treatment Program. None of these documents are
included in the record and we will not give them any consideration. See Rules of Appellate
Court (“RAP”) 25(B).
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“[T]he effect of a valid plea of guilty is to waive all defenses other
than that the indictment charges no offense.” Commonwealth v. Elza, 284 S.W.3d
118, 121 (Ky. 2009). In Russell v. Commonwealth, the defendant sought relief
from his guilty plea to rape by alleging that the victim was already dead by his
hand at the time of the sexual assault and that rape requires a living victim. He
insisted that his attorney provided ineffective assistance by advising him to enter
the plea as it was a legal impossibility. His counsel testified at the RCr 11.42
hearing that he so advised his client because he believed a jury would not be
receptive to the argument that rape had not occurred because his client had already
killed the victim by a gunshot to the head prior to the sexual assault. He also noted
he feared that his client could well receive the death penalty from a jury. This
Court noted that “[a]dvising a defendant to plead guilty does not, in and of itself,
constitute ineffective assistance of counsel.” 992 S.W.2d 871, 874-75 (Ky. App.
1999).
We hold that any advice to Nolan which resulted in a sentence of less
than the maximum sentence he faced was not ineffective. Given Nolan’s crimes
and his position, it was quite possible that a jury would have recommended a much
longer sentence than that for which he bargained. He has already had one hearing
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before the Kentucky Parole Board, and even if he was not granted parole on that
occasion, he clearly received a sentence with 20% parole eligibility.5
CONCLUSION
We find that Nolan’s contentions alleging ineffective assistance of
counsel are without merit and affirm the trial court’s denial of relief.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Gregory A. Ousley Daniel Cameron
Somerset, Kentucky Attorney General of Kentucky
Brett R. Nolan
Assistant Attorney General
Frankfort, Kentucky
5
It is not clear from the record before us whether Nolan has completed the Sexual Offender
Treatment Program, but it matters not to our determination.
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