RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0799-MR
BRIAN T. BATEY APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, SPECIAL JUDGE
ACTION NO. 11-CR-00231
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: Brian T. Batey (“Batey”) appeals from an order of the
Greenup Circuit Court denying his motion for post-conviction relief under CR1
60.02. After careful review, finding no error, we affirm.
1
Kentucky Rules of Civil Procedure.
On May 17, 2012, Batey pled guilty to first-degree robbery,2
possession of a handgun by a convicted felon,3 and being a first-degree persistent
felony offender.4 He negotiated a plea deal with the Commonwealth for twenty-
two years on the robbery charge and ten years on the handgun charge, which were
to run concurrently for a total sentence of twenty-two years.
On May 23, 2012, Batey moved to withdraw his guilty plea. The next
day, the parties announced they reached a new plea agreement, and the circuit
court allowed Batey to withdraw his original guilty plea. Batey entered a second
guilty plea to the amended charge of second-degree robbery,5 possession of a
handgun by a convicted felon, and being a first-degree persistent felony offender.
The final judgment indicated both of Batey’s charges were enhanced to Class B
felonies because he was a first-degree persistent felony offender. Batey was
sentenced to a total of thirty years.
Six years later, on March 7, 2018, the circuit court entered an order
amending the final judgment to remedy a clerical error. The court correctly
identified both charges, second-degree robbery and possession of a handgun by a
2
Kentucky Revised Statutes (“KRS”) 515.020 (Class B felony).
3
KRS 527.040 (Class D felony).
4
KRS 532.080(6)(b).
5
KRS 515.030 (Class C felony).
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convicted felon, as Class C felonies. The order amending the judgment still
reflected both charges were enhanced by Batey’s status as a persistent felony
offender and did not correct his sentence.
Then, Batey filed motions to set aside his guilty plea and to correct his
sentence under RCr6 10.10. Batey argued his sentence should have been capped at
twenty years instead of the thirty years he received. On November 15, 2018, the
circuit court granted his request and orally amended the judgment to reduce his
sentence to twenty years. On April 5, 2019, the original judge was disqualified,
and a special judge was assigned to the case.
On December 12, 2019, Batey filed a CR 60.02 motion supplementing
his previous argument about his sentence. Batey argued the original judgment was
void because he received an illegal sentence pursuant to a plea agreement, and his
conviction should be vacated. The Commonwealth responded that the court orally
amended the judgment on November 15, 2018, but the original circuit judge
recused before entering a written order. The Commonwealth argued the proper
remedy was to enter an amended judgment correcting Batey’s sentence to twenty
years.
6
Kentucky Rules of Criminal Procedure.
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On February 14, 2020, the circuit court entered an order denying
Batey’s motion to vacate his sentence and amending his sentence to twenty years
of imprisonment. This appeal followed.
On appeal, Batey argues: his conviction should be vacated under CR
60.02(f) because the judgment arose from an illegal plea agreement and was void
as a matter of law. “We review the denial of a CR 60.02 motion under an abuse of
discretion standard.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014)
(citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
In Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018), the appellant
pled guilty and agreed to a sentence that was not statutorily authorized. Id. at 304.
The Supreme Court of Kentucky held “a sentence imposed beyond the limitations
of the legislature as statutorily imposed is unlawful and void.” Id. However, an
illegal sentence is “void only as to the excess portion of the sentence” and is
“correctable at any time.” Id. at 305-06. “Whether recommended by an errant jury
or by the parties through a plea agreement, a sentence that is outside the limits
established by the statutes is still an illegal sentence.” Id. at 302 (quoting
McClanahan v. Commonwealth, 308 S.W.3d 694, 701(Ky. 2010)).
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Here, the circuit court corrected the illegal sentence in the order on
appeal. The order reduced Batey’s sentence from a total of thirty years to the
statutory maximum of twenty years. Contrary to Batey’s argument that his entire
conviction should be vacated, only the excess ten years of the statutory maximum
of Batey’s sentence was void under Phon. Thus, the circuit court correctly reduced
Batey’s sentence in satisfaction of KRS 532.110(1).
For the foregoing reasons, we affirm the judgment of the Greenup
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jacquelyn “Jaye” Bryant-Hayes Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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