RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1468-MR
MICHAEL DUMAS APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE DAVID C. BUCKINGHAM, SPECIAL JUDGE ACTION NO. 09-CR-00118
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
ACREE, JUDGE: Appellant, Michael Dumas, appeals the Marshall Circuit
Court’s September 29, 2022 Order denying his RCr1 10.10 motion to correct an
alleged clerical error in a final criminal judgment against him. Having reviewed
the record, we affirm.
1 Kentucky Rules of Criminal Procedure. On June 12, 2009, the Commonwealth charged Dumas with four
counts of distribution of matter portraying a sexual performance by a minor in
violation of KRS2 531.340 and three counts of possession of matter portraying a
sexual performance by a minor in violation of KRS 531.335. A jury convicted
Appellant of all charges, and the court entered a final judgment against Dumas on
May 18, 2010. The court sentenced Dumas to a total of twenty years of
incarceration. On direct appeal, the Kentucky Supreme Court affirmed the
conviction on all substantive grounds. Dumas v. Commonwealth, No. 2010-SC-
000378-MR, 2011 WL 2112560, at *1 (Ky. May 19, 2011).
Thereafter, Dumas, acting pro se, filed a RCr 11.42 motion claiming
ineffective assistance of counsel. The circuit court denied this motion, and this
Court dismissed his appeal of that order for untimeliness. Then, on September 14,
2021, Dumas filed a motion to amend his final judgment. The final judgment
indicated Dumas would be subject to a five-year conditional discharge period after
his release from incarceration. Neither KRS 531.340 nor KRS 531.335 permit
five-year conditional discharge time after release from prison. The circuit court
granted Appellant’s motion, believing the error to be a clerical mistake.
Subsequently, Dumas filed the RCr 10.10 motion that is the subject of
this appeal. In his motion, Dumas argued he was not required to provide a blood
2 Kentucky Revised Statutes.
-2- sample per KRS 17.170. Further, Dumas argued the judgment should reflect that
he must register as a “registrant” and not a “sexual offender” because he was not
convicted of a sex crime. The circuit court denied this motion and rejected his
arguments. This appeal follows.
Pursuant to RCr 10.10:
Clerical mistakes in judgments . . . 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. During the pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
RCr 10.10.
For RCr 10.10 to operate correctly, a key distinction must be made
between clerical errors and judicial errors. “Clerical mistakes or errors, as opposed
to judicial errors, are ‘all errors, mistakes, or omissions which are not the result of
the exercise of the judicial function.’” Machniak v. Commonwealth, 351 S.W.3d
648, 652 (Ky. 2011) (quoting Buchanan v. W. Ky. Coal Co., 291 S.W. 32, 35 (Ky.
1927)). Thus, the Kentucky Supreme Court emphasized: “[t]he distinction
between judicial and clerical errors ‘does not depend so much upon the person
making the error as upon whether it was the deliberate result of judicial reasoning
and determination, regardless of whether it was made by the clerk, by counsel, or
by the judge.’” Id. (quoting Buchanan, 291 S.W. at 35).
-3- An important consequence of determining whether an error is clerical
or judicial becomes apparent when considering that “[g]enerally speaking, a trial
court lacks power to amend a judgment ten days after the entry of that judgment.”
Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010). Therefore,
unlike clerical errors, judicial errors are not subject to correction under RCr 10.10.
Id. at 486. Fatal to Dumas’ argument, both alleged errors would be judicial errors.
However, we are not convinced the circuit court made any errors at all. Despite
this, assuming arguendo Dumas did correctly identify errors on his final judgment,
the errors are not clerical errors.
He, again, alleges two errors. First, Dumas alleges he does not need
to register as a “sexual offender” but rather as a “registrant.” Reviewing the final
judgment, the judgment requires: “Pursuant to KRS 17.510(2) defendant has been
convicted of a sex crime and has been informed of duty to register with the
appropriate local Probation and Parole [O]ffice.” Nothing in this portion of the
judgment indicates whether he must be called a “registrant” or “sexual offender.”
It solely requires him to register with the proper local authority. Thus, on its face,
there is no clerical error of the nature that Dumas complains about.
Further, KRS 17.510(2) states: “A registrant shall, on or before the
date of his or her release by the court, the parole board, the cabinet, or any
detention facility, register with the appropriate local probation and parole office in
-4- the county in which he or she intends to reside. The person in charge of the release
shall facilitate the registration process.” KRS 17.510(2). It is without question
that, at the time of Dumas’ conviction, KRS 17.510(2) required those convicted of
violations of KRS 531.335 to register with the appropriate probation or parole
board. See Hamilton-Smith v. Commonwealth, 285 S.W.3d 307 (Ky. App. 2009)
(Appellant required to register as a sexual offender per KRS 17.510(2) after
conviction for violating KRS 531.335).
Consequently, no clerical error exists concerning the judgment’s
requirement that Dumas register as a sexual offender pursuant to KRS 17.510(2).
Second, Dumas argues there exists a clerical error concerning the
judgment’s requirement that he provide blood for purposes of a DNA sample. The
judgment indicates:
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RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1468-MR
MICHAEL DUMAS APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE DAVID C. BUCKINGHAM, SPECIAL JUDGE ACTION NO. 09-CR-00118
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
ACREE, JUDGE: Appellant, Michael Dumas, appeals the Marshall Circuit
Court’s September 29, 2022 Order denying his RCr1 10.10 motion to correct an
alleged clerical error in a final criminal judgment against him. Having reviewed
the record, we affirm.
1 Kentucky Rules of Criminal Procedure. On June 12, 2009, the Commonwealth charged Dumas with four
counts of distribution of matter portraying a sexual performance by a minor in
violation of KRS2 531.340 and three counts of possession of matter portraying a
sexual performance by a minor in violation of KRS 531.335. A jury convicted
Appellant of all charges, and the court entered a final judgment against Dumas on
May 18, 2010. The court sentenced Dumas to a total of twenty years of
incarceration. On direct appeal, the Kentucky Supreme Court affirmed the
conviction on all substantive grounds. Dumas v. Commonwealth, No. 2010-SC-
000378-MR, 2011 WL 2112560, at *1 (Ky. May 19, 2011).
Thereafter, Dumas, acting pro se, filed a RCr 11.42 motion claiming
ineffective assistance of counsel. The circuit court denied this motion, and this
Court dismissed his appeal of that order for untimeliness. Then, on September 14,
2021, Dumas filed a motion to amend his final judgment. The final judgment
indicated Dumas would be subject to a five-year conditional discharge period after
his release from incarceration. Neither KRS 531.340 nor KRS 531.335 permit
five-year conditional discharge time after release from prison. The circuit court
granted Appellant’s motion, believing the error to be a clerical mistake.
Subsequently, Dumas filed the RCr 10.10 motion that is the subject of
this appeal. In his motion, Dumas argued he was not required to provide a blood
2 Kentucky Revised Statutes.
-2- sample per KRS 17.170. Further, Dumas argued the judgment should reflect that
he must register as a “registrant” and not a “sexual offender” because he was not
convicted of a sex crime. The circuit court denied this motion and rejected his
arguments. This appeal follows.
Pursuant to RCr 10.10:
Clerical mistakes in judgments . . . 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. During the pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
RCr 10.10.
For RCr 10.10 to operate correctly, a key distinction must be made
between clerical errors and judicial errors. “Clerical mistakes or errors, as opposed
to judicial errors, are ‘all errors, mistakes, or omissions which are not the result of
the exercise of the judicial function.’” Machniak v. Commonwealth, 351 S.W.3d
648, 652 (Ky. 2011) (quoting Buchanan v. W. Ky. Coal Co., 291 S.W. 32, 35 (Ky.
1927)). Thus, the Kentucky Supreme Court emphasized: “[t]he distinction
between judicial and clerical errors ‘does not depend so much upon the person
making the error as upon whether it was the deliberate result of judicial reasoning
and determination, regardless of whether it was made by the clerk, by counsel, or
by the judge.’” Id. (quoting Buchanan, 291 S.W. at 35).
-3- An important consequence of determining whether an error is clerical
or judicial becomes apparent when considering that “[g]enerally speaking, a trial
court lacks power to amend a judgment ten days after the entry of that judgment.”
Winstead v. Commonwealth, 327 S.W.3d 479, 485-86 (Ky. 2010). Therefore,
unlike clerical errors, judicial errors are not subject to correction under RCr 10.10.
Id. at 486. Fatal to Dumas’ argument, both alleged errors would be judicial errors.
However, we are not convinced the circuit court made any errors at all. Despite
this, assuming arguendo Dumas did correctly identify errors on his final judgment,
the errors are not clerical errors.
He, again, alleges two errors. First, Dumas alleges he does not need
to register as a “sexual offender” but rather as a “registrant.” Reviewing the final
judgment, the judgment requires: “Pursuant to KRS 17.510(2) defendant has been
convicted of a sex crime and has been informed of duty to register with the
appropriate local Probation and Parole [O]ffice.” Nothing in this portion of the
judgment indicates whether he must be called a “registrant” or “sexual offender.”
It solely requires him to register with the proper local authority. Thus, on its face,
there is no clerical error of the nature that Dumas complains about.
Further, KRS 17.510(2) states: “A registrant shall, on or before the
date of his or her release by the court, the parole board, the cabinet, or any
detention facility, register with the appropriate local probation and parole office in
-4- the county in which he or she intends to reside. The person in charge of the release
shall facilitate the registration process.” KRS 17.510(2). It is without question
that, at the time of Dumas’ conviction, KRS 17.510(2) required those convicted of
violations of KRS 531.335 to register with the appropriate probation or parole
board. See Hamilton-Smith v. Commonwealth, 285 S.W.3d 307 (Ky. App. 2009)
(Appellant required to register as a sexual offender per KRS 17.510(2) after
conviction for violating KRS 531.335).
Consequently, no clerical error exists concerning the judgment’s
requirement that Dumas register as a sexual offender pursuant to KRS 17.510(2).
Second, Dumas argues there exists a clerical error concerning the
judgment’s requirement that he provide blood for purposes of a DNA sample. The
judgment indicates:
Pursuant to KRS 17.170, it is further ORDERED that the defendant, having been convicted of a felony offense under KRS Chapter 510 (Sexual Offenses) or KRS 530.020 (Incest), have a sample of blood taken by the Department of Corrections for DNA law enforcement identification purposes and inclusion in law enforcement identification databases.
(Emphasis added.) Dumas argues he did not commit a sex crime, for purposes of
KRS 17.170, because he did not commit a violation found in KRS 510 or KRS
530. Assuming this is an error, on its face, it would appear to be a judicial error
rather than a clerical error. The determination to provide a DNA sample would be
-5- one made through judicial reasoning as KRS 17.170(2)(a) requires Dumas to
provide a DNA sample.
Contrary to Dumas’ argument, KRS 17.170(2)(a) states: “The
following persons shall have a DNA sample collected by authorized
personnel: . . . [a]ny person convicted on or after March 27, 2009, of a felony
offense under the Kentucky Revised Statutes[.]” KRS 17.170(2)(a). It is without
question Dumas’ convictions are felonies under Kentucky law. Thus, there is no
error concerning whether Dumas must provide a DNA sample. As such, the circuit
court did not err when it denied Dumas’ motion.
Therefore, having reviewed the record, the circuit court did not err
when it concluded there existed no merit to the alleged clerical errors Dumas
believed existed in the final judgment against him.
We affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael Dumas, pro se Daniel Cameron La Grange, Kentucky Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
-6-