Bard v. Commonwealth

¶1dissenting.

¶2The majority opinion misstates the question presented in this case as “whether the Department of Corrections can correct an alleged error in the calculation of a presen-tencing custody credit after the calculation is incorporated into the court’s final judgment.” (Emphasis added.) I respectfully dissent because a precise calculation of the number of jail-time credit days was never incorporated into the trial court’s final judgment.

¶3At Bard’s sentencing hearing, the trial judge asked Bard’s counsel whether they had reviewed the presentencing investigation report (PSI) and recommended any changes. Defense counsel proceeded to *8list corrections to the PSI without mentioning a Documentation Custody Time Credit Sheet or the amount of presentenc-ing custody credit that Bard would receive. The trial court sentenced Bard to twenty years’ imprisonment, saying nothing about whether he was entitled to presentencing custody credit or the amount to which he was entitled. Only the trial court’s written judgment mentions Bard’s custody credit.

¶4The written judgment states, “The Defendant shall be entitled to credit for time spent in custody prior to sentencing, said time to be calculated by the Division of Probation and Parole. KRS 582.120.” (Emphasis added.) The majority’s holding rests entirely on the fallacious premise that the trial court’s language directing Probation and Parole to calculate jail-time credit amounted to incorporation by reference of the custody-credit calculation that may have appeared on a time-credit sheet that may have been submitted to the trial court along with the PSI at the sentencing hearing. By what legerdemain this phantom jail-time credit number became incorporated into the trial court’s final judgment, only the majority appears to understand. Yet, the majority carves this phantom number in stone and then holds that Probation and Parole was not authorized thereafter to comply with the trial court’s directive by actually performing the calculation ordered by the trial court.

¶5The Commonwealth attempts to argue that at least a factual issue exists concerning whether the sheet containing a jail-time credit calculation was actually available at Bard’s sentencing. But even if it was attached to the PSI at sentencing, this jail-time credit calculation never became a finding made by the trial court. At the sentencing hearing, the trial court did not calculate Bard’s jail-time credit or refer to an attachment containing the calculation. And nothing indicates the trial court saw or considered the number of days to which Bard was entitled.

¶6These facts differ markedly from Winstead v. Commonwealth,6a case we published less than a year ago in which the trial court’s oral statements at sentencing and written judgment specifically credited the defendant with 234 days of jail-time credit.

¶7“In Kentucky, a court speaks through the language of its orders and judgments.”7 And “[t]he legal operation and effect of a judgment must be determined from a construction and interpretation of its terms.”8 In construing a judgment, its legal effect “must be declared in light of the literal meaning of the language used.”9 Its unambiguous terms, “like the terms in a written contract, are to be given their usual and ordinary meaning.” 10 And an interpreting court “may not by construction add new provisions to a judgment.”11 But the intention of the rendering court is the determinative factor in interpreting judgments.12

¶8The judgment clearly says that Bard’s custody credit was “to be determined” by the Division of Probation and Parole. The *9literal meaning of this language says that the trial court was not specifically considering or incorporating the calculation made by Probation and Parole for Bard, even if a number were submitted to the trial court at the sentencing hearing. Rather, the judgment explicitly delegates the task of calculating Bard’s presentenc-ing custody credit to Probation and Parole, a process that I believe routinely happens in some circuit courts around the Commonwealth. Whether this delegation was a proper delegation was not raised by a timely appeal from the judgment. So, in my view, the majority misses the mark here by framing the issue as it does and basing its holding on an unpublished opinion discussing obligations of the sentencing court.

¶9It is axiomatic that a judgment stands on its own, and any interpretation must begin and end within its four corners. Black’s Law Dictionary defines judgment as “[a] court’s final determination of the rights and obligations of the parties in a case.”13 Here, the only jfinal determination in the judgment concerning Bard’s custody credit is that the trial court delegated the task of calculating the number of days to Probation and Parole. To conclude otherwise is contrary to the plain language of the judgment. And incorporating the calculation erroneously adds new provisions to the trial court’s judgment.

¶10The majority states, “Because the duty to award presentencing custody credit was vested in the trial court, Corrections was not authorized to modify Appellant’s credit in any way.”14 I disagree. The version of KRS 532.120(3) in effect at the time of Bard’s sentencing required courts to award applicable jail-time credit to defendants.15 But it did “not facially require the trial court’s award of jail-time credit to be inserted into the final judgment of conviction ....”16 In Winstead v. Commonwealth, we noted that “it is generally expected that the final judgment will include information as to how much, if any, pretrial jail-time credit a defendant is due.” 17 But we did not conclusively decide the issue. And we cannot address the issue in the case before us today because the parties did not appeal that issue.

¶11The only issue truly before us is whether the judgment incorporated Probation and Parole’s specific calculation of Bard’s custody credit on the day of the sentencing hearing. If it did, then I agree that it would be judicial error under Winstead.18But because the judgment did not specifically do so and did not incorporate the calculation into the judgment, there is nothing in the judgment to correct. So the Department of Corrections could administratively calculate the precise number days of Bard’s jail-time credit as the judgment directs. And KRS 454.415 requires Bard to pursue any remedies administratively before he can appeal the calculation issue to the circuit court. Therefore, I respectfully dissent and would affirm the trial court and the Court of Appeals.