Petition for Writ of Certiorari — Timothy Nolan, Petitioner v. Kentucky

2020 WL 4047517

Only the Westlaw citation is currently available.

Unpublished opinion. See KY ST RCP Rule 76.28(4) before citing.

NOT TO BE PUBLISHED

Supreme Court of Kentucky.

Timothy NOLAN, Appellant

v.

COMMONWEALTH of Kentucky, Appellee

2018-SC-000321-MR

JULY 9, 2020

ON APPEAL FROM CAMPBELL CIRCUIT COURT, HONORABLE KATIIY LAPE. SPECIAL JUDGE. NO. 17N0. 17CR-00487

Attorneys ami Law Finns

COUNSEL FOR APPELLANT: Jeffrey Aaron Lawson.

COUNSEL FOR APPELLEE: Daniel Jay Cameron, Attorney General of Kentucky', James Coleman Shackelford, Assistant

Attorney General.

MEMORANDUM OPINION OF THE COURT

*1 Timothy Nolan pled guilty' to twenty-one crimes, including sixteen related to human trafficking, and was sentenced to a

total of twenty years in prison by the Campbell Circuit Court. Pursuant to Ms plea agreement with the Commonwealth,

Nolan entered conditional pleas to three charges of human trafficking of an adult, reserving the right to appeal those

convictions on the grounds the human trafficking statute is unconstitutional. Nolan now contends that Kentucky Revised

Statute (KRS) 529.100, the statute proscribing human trafficking, is unconstitutionally vague as applied to him. Nolan also

raises two post-plea claims of error: the trial court violated lus right to choose private counsel and the trial court erred by

amending the judgment to correct an error that was judicial rather than clerical. Upon review, we affirm the Campbell Circuit

Court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A Campbell County- grand jury indicted Timothy Nolan on thirty counts, mostly felonies involving sexually related crimes,

with several of the charges involving minors.- Under the terms of a plea agreement, the Commonwealth agreed to amend

fourteen of the charges and to dismiss nine others.- In exchange, Nolan entered an unconditional guilty plea to some of the

charges but as to three counts of Human Trafficking of an Adult (counts 13, 21. and 24), each a Class C felony carrying a tenyear sentence, he entered conditional pleas pursuant to RCr - 8.09.- Those pleas were conditioned on Nolan’s right to

challenge the three convictions on the grounds the human trafficking statute, KRS 529.100, is unconstitutionally vague. In

total, Nolan pled to one Class B felony, ten Class C felonies, nine Class A misdemeanors, and one Class B misdemeanor with

all the sentences running concurrently with each other for a total sentence of twenty- years in prison. The trial court engaged

Nolan in a full colloquy before accepting Iris plea and sentencing him in accord with the plea agreement.

*2 Additional facts are presented below as necessary.

A

Nolan raises three issues on appeal: 1) KRS 529.100 is unconstitutionally void for vagueness as applied to

was not clerical in nature. These issues are addressed in turn.

L KRS 529.100 is not void for vagueness as applied to Nolan.

.

A Campbell County grand jury charged Nolan with violating KRS >29.100 Human Trafficking, “when he intentionally

subjected another person [respectively, adult victims J.T., Ca.S., and S.G],-5 to engaging in commercial sexual activity

through die use of force, fraud or coercion” under counts 13. 21, and 24 of the indictment. The plea agreement included an

addendum of the facts of the case. Per the agreement, the facts for the three challenged charges are.

[Count 131 From August 2016 through September 2016, the defendant subjected J.T. to Human Trafficking after she had

run away from a residential drug treatment program, taking her to stay with him, and paying her to engage in se.\u<

3

daily basis, and threatening to turn her in to law enforcement if she did not engage in the sexual

conduct with him on a

conduct for money.

|Count 21] From June 2011 through April 2016, the defendant subjected Ca.S. to Human Trafficking by telling her he

would get her suboxone to “get cleara” but instead gave her money to buy heroin knowing she was addicted and

threatened physical harm to her unless she agreed to engage in sexual conduct with him for money, and perfonn sexual acts

which he photographed or filmed.

[Count 241 From 2012 through March 2016. defendant subjected S.G. to Human Trafficking by using physical force to

keep her in Iris house when she wanted to leave, by threatening to turn her in for being behind paying chi d support, and

knowing she was addicted to heroin, using physical force on her unless she engaged m sexual conduct with him for money,

and performed] sexual acts which he photographed or filmed.

Nolan contends that the Kentucky human trafficking law did not properly advise him that he could be convicted of human

trafficking when he engaged in the foregoing conduct, his overarching argument being that he cannot be convicted of human

trafficking when no one was “trafficked” to a third party. As discussed in greater detail infra, Nolan argues that the behaviors

on whichthese three charges are based are not of the “engaging in commercial sexual activity through theuse of foice, fraud

or coercion” ilk the behavior KRS 529.1.00 criminalizes as human trafficking, making the statute unconstitutional as app ed

to him Nolan also complains that KRS 529.100(l)’s language is circular, that it ambiguously redirects a reader to separate

statutory definitions and then to other definitions, rendering portions of the original definition useless and producing little, if

any clarity' regarding tire forbidden conduct. He also insists the definitions have an extremely broad sweep and undefined

scope allowing for and resulting in arbitrary' application and enforcement. In short Nolan criticizes the legislature

proscription of human trafficking on virtually every conceivable basis but in the end those criticisms do not equate to any

constitutional infirmity'.

*3 The Fifth Amendment to the United States Constitution provides that “[n]o person shall be deprived ofUife,°*

nronertv without due process of law ” “Due process requires that a criminal statute provide adequate [or fair] notice to a

conduct which he could not reasonably understand to be proscribed.

Buckley v. Valeo. 424 U.S. .

^

United Slates v Harriss. 347 U.S. 612. 617 (1954)): accord Papachnstou v. Jacksonville, 405 U.S. 1>6, 162 (1T-). [A]

statute which [forbids] an act in terms so vague that men of common intelligence must necessanly giiess at its nreaiung and

differ as to its application violates the first essential of due process of law. Connolly v. General Const Co.. -69 U.S •< - ■

791 (1926) (citations omitted). “|T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is prohibitedl andJ 3 "j^ter Jhal does no

Foley. 798 ~S~W. 2d 947, 950-51 (Ky. 1990). It is sufficient if a statute sets out an “ascertainable standard

United Stales v. L

Cohen Grocery Co.. 255 U.S. 81. 89 (1921).

themselves so as to avoid that which is forbidden.

Rose v. Locke, 423

U S 48. 49-50 (1975) (parallel citations omitted). Thus, a “conviction or punishment fails to comply with

due process if the statute or regulation under which it is ootamea pvnouyj IHIIS IU plUVIUC a pciaun Ui uiumai v 11UV1115VUV.V

fair notice of what is prohibited, oris so standardless that it authorizes or encourages seriously discriminatory enforcement.

FX'.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (quoting United Slates v. Williams. 553 U.S. 285. 304

(2008)). As always with constitutional challenges to our state statutes, we begin with the presumption that the challenged

statute is constitutionally valid. Canevville Volunteer Fire Dept v. Green’s Motorcycle Salvage. Inc., 286 S.W.3d 790, 806

(Ky. 2009).

; *i

The statutoiy scheme at issue in Nolan’s as-applied challenge encompasses KRS 529.100, codifying the offense of human

trafficking- KRS ^29 010’s definitions for “human trafficking.” and the “commercial sexual activity ’ and ‘ force, fraud, or

coercion,” terms used to define human trafficking; and KRS 509.010(2)’s definition, referenced in KRS 529.01.0’s “force,

fraud, or coercion” definition.

KRS 529.100(1) states:A person is guilty of human trafficking when the person intentionally subjects one (1) or more persons

to human trafficking.^

KRS 529.010(5)- provides the definition for human trafficking, stating:

“Human trafficking” refers to criminal activity whereby one (1) or more persons are subjected to engaging in.

(a) Forced labor or sendees; or

(b) Commercial sexual activity through the use of force, fraud, or coercion, except that if the trafficked person is

under the age of eighteen (18). the commercial sexual activity need not involve force, fraud, or coercion.

*4 KRS 529.010(2) defines commercial sexual activity, stating: “ ‘Commercial sexual activity means prostitution, regardless

of whether the trafficked person can be charged with prostitution,1-1 participation in the production of obscene material as set

out in KRS Chapter 531, or engaging in a sexually explicit performance.”-^

KRS 529.010(4) provides the definition for force, fraud, or coercion, stating: “ ‘Force, fraud, or coercion may only be

accomplished by the same means and methods as a person may be restrained under KRS 509.010.' - KRS 509.010 appears

in the chapter of the penal code that codifies kidnapping and related offenses.

Finally. KRS 509.010(2) provides the means and methods applicable to the ways force, fraud, or coercion may be

accomplished. It states in full:

“Restrain" means to restrict another person’s movements in such a manner as to cause a substantial

interference with his liberty’ bv moving him from one place to another or by confining him either in the

place where the restriction commences or in a place to which he has been moved without consent. A

person is moved or confined “without consent” when the movement or confinement is accomplished

by physical force, intimidation, or deception, or by any means, including acquiescence of a v ictim, if

he is under the age of sixteen (16) years, or is substantially incapable of appraising or controlling his

own behavior.

Nolan particularly attacks two parts of the statute. He argues that the term “human trafficking,” commonly understood to

involve profiting from prostitution or the subjugation of an alleged victim to a third party, failed to provide notice to him that

the conduct in which he engaged, providing money to his victims for sexual conduct, violated KRS 529.100. Nolan

acknowledges that the definition of “commercial sexual activity” encompasses “prostitution’ which contains an element of

commerce but claims it cannot be reasonably said that an individual is trafficked for purposes of commercial sexual

activity” without some effort on the part of the trafficker to obtain something of value from a third party given that the

purpose of human trafficking legislation generally is to criminalize compelled, involuntary labor or activity in the commercial

sex trade. Simply put. he asserts that the Commonwealth could not reasonably expect him to be on notice that he might

violate KRS 529T00 by trafficking an individual to himself.

*5 Nolan also argues that KRS 529.100 is circular on its face and that tracking relevant definitions across the penal code

chapters provides little clarity to the conduct KRS 529.100 forbids. He argues that the “force, fraud, or coercion” element of

human trafficking suffers from a fatal lack of clarity as the General Assembly did not provide any definition for these words

individually and instead, relies upon another statute, leaving it unclear how to apply KRS 509.01.0’s language. He asserts, for

instance that the question remains as to whether the Court should apply the dictionary definitions for “force, fraud, or

coercion" as the terms are not defined in KRS 529.010 or simply look to the first sentence of KRS 509.010 and restrict the

“means'" of accomplishing force, fraud, or coercion to a “substantial interference with [the victim’s] liberty ' aclueved “by

' He Deneves

;>zv.u.i»n-t,i ouuiu t-t iuiu

second sentence.

The Commonwealth responds that KRS 529.100’s statutory structure, relying on definitions in KRS Chapters 529 and 509

and on the plain meaning of words, is sufficiently clear to provide a person of ordinary intelligence a reasonable opportunity

federal and other states’ trafficking legislation; but his disagreements and cntiques do not render the statute void-forvagueness.

Because the void-for-vagueness doctrine assesses whether a statute fails to define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited, that assessment implicates a number of statutory

interpretation principles. Foremost is the rale that a statute's words, phrases, and definitions are to be given their plain and

ordinary meaning as generally understood in the context of tire matter under consideration.JWe v

44*

S W3d 746 749 (Kv 2014) (citation omitted); Shawnee lele.com Res.. Inc. v. Brown, j04 S.W.3d M2, -~1 (K>. -U1 >

(citation omitted). Furthermore, “[w]e presume that the General Assembly intended for the statute to be construed as a whole

for all of its parts to have meaning, and for it to harmonize with related statutes/ Shawnee, lele.com, 354 S.W.id at 351

(citations omitted). We consider Nolan’s arguments in light of our statutory' interpretation principles.

Although Nolan argues that KRS 529.100(l)’s language is ambiguous because it is circular that is remedied with KRS

529.010(5) expressly defining human trafficking. Id:, Rose. 423 U.S. at 49-30. As to the defimtion of human traffic &

find no ambiguity- in its language or the language of the other definitional statutes upon which it relies. Also a plain reading

of KRS 509.010(2) reveals that an adult may be restrained by physical force, intimidation, or deception, which returning o

KRS 420 010(4) means physical force, intimidation, or deception are the limited means and methods by winch the human

trafficker may accomplish fo.ce, fraud, or coercion of the vtctim. Wc cannot agree with Nolan that Ihe tntejplay between

KRS 509.010(2) and KRS 529.010(4) is ambiguous and could be interpreted in various ways. Lastly, being undefined by the

legislature, the terms “force, fraud, and coercion” receive their common meaning. Nolan does not assert that these ordinary

terms are ambiguous.

Thus, when focusing on the “commercial sexual activity” aspect of the human trafficking statute, the aspect relevant to

Nolan’s charges KRS 529.100(1) informs that a person is guilty1 of human trafficking when the person intentionally subjects

one or more persons to engaging in prostitution through the use of force, fraud, or coercion accomplished by physical force

intimidation, or deception. Although KRS 529.100 and the related definitional statutes probably could have been wnlten with

greater precision (and indeed the statute was later amended to avoid some cross-referencing of other statutes).^ that does not

invalidate an otherwise unambiguous statutoiy scheme. Rose, 423 U.S. at 49 M) Furthermore comraiy to Nolan s

suggestion, ambiguity does not arise simply because a reader needs to refer to multiple definitions. Id, Slmmce lelecom

354 S.W.3d at 551. Legislative bodies routinely adopt statutoiy definitions that are then referenced throughout subsequent

statutes, avoiding the repetition of the same language in statute after statute.

*6 “In determining the sufficiency of the notice a statute must of necessity' be examined in the light of the conduct with which

a defendant is charged.” United Slates v. Natl Dairy Prod. Carp., 372 U.S. 29. 33 (1963) (citation omitted). We conclude

KRS 529.100 and the relevant definitions gave Nolan sufficient warning that the behavior contemplated and engaged m as ci

J T. Ca S and S G is unlawful human trafficking. See. e.g.. Stinson v. Commonwealth, 396 S.W.3d 900. 907 (Ky 2013).-.

Nolan could understand not only that by subjecting each victim to engaging in sexual conduct for money he would subject

them to prostitution, but that furthermore, his contemplated behavior would subject each of them to prostitution through the

use of force, fraud or coercion accomplished through physical force, intimidation, or deception - that is. he could imdeistand

threatening a victim with adverse legal consequences or physical harm if the victim did not engage in sex for money is

unlawful. For J.T. who had run away from a residential drug treatment program. Nolan could easily understand that he could

meet the force, fraud, or coercion element by coercing J.T. through intimidation, specifically by threatening to turn hei into

law enforcement if she did not engage in the sexual conduct for money. For Ca.S., Nolan could understand that he could meet

the force fraud or coercion element through deception and intimidation by telling the lieroin-addicted young woman that lie

would get her suboxone to “get clean," but instead giving her money to buy heroin, and threatening to physically harm her

unless she agreed to engage in sexual conduct with him for money. And for heroin-addicted S.G., Nolan could readily

understand that he could meet the force, fraud, or coercion element through physical force and intimidation by using physical

force to keep S G in the house when she wanted to leave and by threatening to turn her in for being delinquent in her c

suppo it payments, and knowing she was addicted to heroin, by threatening physical force on her unless she engaged in sexual

conduct with him for money.

Nolan presents various arguments to highlight the perceived deficiencies m die statutory language in an attempt to persuade

this Court that the human trafficking statutory scheme should be interpreted as requiring an element of commerce involving

interaction with a third party because a person of ordinary intelligence would necessarily understand human trafficking to

involve a trafficker obtaining something of value trom a tmra parts-, ms-arguments, truer uuu, me ua»u u.. a

^

other jurisdictions’ trafficking statutes and the legislative history of KRS 529.100, including the General Assembly s repeal of

other sexual offense statutes at the time of enactment of the human trafficking statute. For example. Nolan compares the

human trafficking statutory scheme to analogous provisions in the federal Trafficking Victims Protections Act (TVPA), 22

U S.C. § 7101 et .'VC/. (2000), and argues that in parts, the Kentucky statutes omit entirely the elements of commerce and

labor, though these are essential elements in any common-sense understanding of trafficking, and in fact, are required by

the trafficking statute. He suggests it may be useful for this Court to compare the TVPA to KRS 529.100(1) and lelevant

definitions to understand just how deficient KRS 529.100 is as a human trafficking statute. For instance, the TVPA defines

“commercial sex act” as “any sex act on account of which anything of value is given to or received by any person. 22 U.S.C.

§ 7102. Nolan acknowledges the Kentucky General Assembly- departed from the TVPA by including behavior that is

arguably non-commercial in the area of commercial sexual activity1, but contends it is likely that the General Assembly

intended some element of commerce to apply.

We cannot find merit in any of these arguments. When considering a vagueness challenge, we are not concerned with whether

a term is defined exactly as a person of ordinary' intelligence would ordinarily expect it to be defined. Or stated another way,

a statute may not be declared unconstitutionally vague simply because it uses terms in a manner perhaps unexpected by the

ordinary person “All the Due Process Clause requires is that the law give sufficient warning that men may conduct

themseives so as to avoid that which is forbidden.” Rose, 423 U S. at 50. “The determination whether a criminal statute

provides fair warning of its prohibitions must be made on the basis of tire statute itself and the other pertinent law.... ” Rouie v.

Columbia. 378 U.S. 347. 355 n.5 (1964). A court may not “add or subtract from the legislative enactment nor discover

meaning not reasonably ascertainable from the language used.” Beckham v. Board of Educ. ,8/3 S.W.2d 575, 577 (Ky. 1494).

Furthermore, although urged otherwise by- Nolan, we need not rely on extraneous sources to interpret KRS 529.100. Only if

the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute s legislative

history; the canons of construction; or. especially in the case of model or uniform statutes, interpretations by other courts.

Shawnee Telecom, 354 S.W..3d at 551 (citations omitted).

*7 Given these constitutional guideposts and statutory- construction principles, we conclude that KRS 529.100 is not

unconstitutionally vague as applied to Nolan. Whatever merit, if any. his various arguments regarding perceived deficiencies

in the statute may have, those concerns do not render the statute unconstitutional. Furthermore, to the extent Nolan raises a

facial challenge,’our determination that KRS 529.100 is not void for vagueness as applied to Nolan also results in our

rejecting any facial challenge raised by Nolan. Stinson, 396 S.W.3d at 907 (citing United States v. Mazurie. 419 U.S. 544,

550 (1975))’

n. The trial court did not improperly interfere with Nolan’s right to counsel of choice.

Nolan entered his guilty plea on February 9, 2018. At the first scheduled sentencing hearing on March 29, 2018, Nolan s

privately-retained counsel moved the trial court on Nolan s behalf to withdraw his guilty plea, asked for an evidentiary

hearing on the matter, asked to withdraw due to a conflict with their client, and asked that a public defender be requested for

him [Nolan]." Nolan remained silent. In the course of this hearing. Nolan did clarify' that he was dismissing his private

attorneys. The trial court then recessed tire hearing and reconvened shortly thereafter, appointing a public defender to

represent Nolan on his motion to withdraw his plea, the basis for which Nolan felt he could not articulate until represented

by other counsel. Notably, in providing information for his presentence investigation report, Nolan had represented that he

did not have the financial resources to pay- an attorney. An indigency hearing was not held and an affidavit of indigency was

not submitted at that point however, tire trial court provided Nolan the financial statement to complete in order for the court

to continue the public defender’s appointment. Furthermore, based upon the record’s detail of Nolan’s assets, the court

ordered Nolan to pay a recoupment fee to the Department of Public Advocacy (DPA) for work it performed on his behalf.

Nolan did not object to the appointment of the public defender to represent him on his motion to withdraw his plea.

After conferring with Nolan, the public defender provided to the court the grounds for Nolan’s motion to withdraw- the plea,

one being that he could not pay any of the agreed upon $50,000 due at sentencing. The sentencing hearing, along w-ith a

hearing on the formally filed plea withdrawal motion, was then scheduled for May 4, 2018. The trial court also scheduled a

forfeiture hearing for April 4, 2018, and advised Nolan that he must have counsel present and ready to proceed at that hearing

to avoid further delay.

Nolan subsequently requested that he be made co-counsel and only co-counsel so he could be at sidebai conferences. Upon

further inquiry by the court, he also stated he wanted to be able to make arguments before the court. The trial court then

conducted a Faretta^ hearing. Being satisfied that Nolan, a former district court judge and lawyer who represented he has

kept up with changes in the rales of evidence and procedure, could be hybrid counsel, the trial court explained that the hybrid

counsel agreement with the DPA must detail the matters in which he would address the court.

At a conference two days before the forfeiture hearing, appointed counsel informed the trial court that it w-as unclear whether

Nolan was an indigent person qualified to receive DPA s services; that the affidavit of indigency w as not filed with the court

because it appeared Nolan had assets, although they were not immediately available; and that Nolan asked for more time to

been unsuccessful tarty m tne conference tne maf conn mionneu mmui urai me upcoming luncnuic iicaimg nuuiuww

delayed, and that without the entry of new private counsel he would proceed with the public defender. Nolan did not object to

the public defender's representation during this conference, but he indicated he would continue his efforts to hire other

counsel for the hearing, at least partially based upon the public defender’s restricted role.

*8 After discussion of Nolan’s assets and the public defender’s restricted role at a forfeiture hearing, the trial court set a

hearing for freezing of assets for April 4, 2018. At that hearing, Nolan acted as lead counsel with shadow counsel present and

an agreement was reached as to the manner in which the Commonwealth would be paid the money owed pursuant to the

plea agreement. No forfeiture of property occurred in relation to the April 4 hearing. The public defender continued to

represent Nolan on the plea withdrawal motion and at the sentencing hearing.

Nolan now argues that the trial court improperly interfered with his constitutional right to counsel of his choosing when it

appointed the public defender without an indigency hearing. Nolan does not identify an objection to the appointment of DPA

representation which preserved this argument, but instead relies upon the various discussions regarding whether Nolan

qualified for DPA representation under ICRS 31.120.- Even if Nolan’s argument is sufficiently preserved, a premise subject

to considerable doubt, his particular constitutional right to counsel argument is without merit.

The Sixth Amendment guarantees “the right of a defendant who does not require appointed counsel to choose who will

represent him.” United States v. Gonzalez-Lopez. 548 II.S. 140. 144 (2006). Deprivation of that right is structural error that

does not require a showing of prejudice or that the counsel defendant received was ineffective. Id. at 148. But, that right “is

circumscribed in several important respects.” Id. at 144 (quoting Wheat v. United States, 486 U S. 153. 159 (1988)).

Among those limitations is the trial court’s discretion “in balancing the right to counsel of choice against the needs of

fairness” and “the demands of its calendar.” Id. at 152.

United States v. Powell, 847 F.3d 760. 777-78 (6th Cir. 2017) (parallel citations omitted).

Citing these principles, Nolan contends that after the trial court allowed his trial counsel to withdraw, the court erred by

appointing counsel on his behalf instead of allowing Nolan to locate counsel of his choice. However, Nolan never challenged

the court’s appointment of the public defender. He made no objection to the public defender’s representation at any time,

including the rescheduled sentencing hearing. Nolan did represent that he attempted, albeit unsuccessfully, to hire other

counsel for the scheduled forfeiture hearing but he never rejected the representation provided by the DPA.

The Commonwealth, citing Shegog v. Commonwealth, 142 S.W.3d 101 (Ky. 2004), contends that a criminal defendant’s

right to private counsel of choice in not interfered with or denied simply because he is unable to hire private counsel and must

proceed with a public defender. In Shegog, the defendant asked for a continuance less titan one week before his scheduled

jury trial so he could hire private counsel. Id. at 104. The trial court concluded that unless private counsel entered an

appearance for Shegog prior to the scheduled trial date, the trial would proceed as scheduled. Id. at 105. Shegog appealed the

trial court’s decision, arguing that the trial court’s failure to fully inquire into the conflict with Iris appointed attorney and

permit him to obtain new counsel violated his rights under the Sixth Amendment. Id. This Court stated, “Importantly, the trial

court did not deprive Appellant of the right to secure private counsel of his own choosing. The trial court merely ruled that

such counsel, if obtained, was required to enter an appearance prior to the scheduled trial date.” Id. (internal citation omitted).

*9 We agree, that like Shegog, this is not a case where the court interfered with a defendant securing the counsel of his

choice. Nolan’s private counsel were acting on Nolan’s behalf when they requested permission to withdraw and for the trial

court to appoint a public defender for their soon-to-be former client. The trial court granted that request to appoint the public

defender, and Nolan ratified (lie request by remaining silent and then requesting hybrid counsel status. While Nolan was

clear about his intent to dismiss his private counsel, he never said he wanted to dismiss appointed counsel. When Nolan

stated his interest in hiring counsel for the forfeiture hearing, which the trial court’s March 29, 2018 ruling anticipated, the

trial court required Nolan to adhere to the planned hearing schedule and to timely deal with his plea withdrawal motion and

associated asset management issues. Moreover, the hearing on Nolan’s motion to withdraw his plea and to impose sentence

was not scheduled for a month after Nolan dismissed private counsel. So, Nolan still had a full month to hire other private

counsel between the April 4 hearing and the May 4 hearing on withdrawal of the plea and sentencing. Under these

circumstances, the trial court in no way interfered with Nolan’s Sixth Amendment right to private counsel and his alleged

error, if preserved, is meritless.

111. The trial court did not err by amending the judgment to correct a clerical error.

The trial court’s Judgment and Sentence on Plea of Guilty was entered on May 24, 2018. Shortly thereafter, when Nolan

moved the trial court for shock probation, an error in the trial court 's judgment came to light. Specifically, the Department of

Corrections had informed Nolan that it did not consider any of the offenses to be sexual offenses requiring participation in a

Sex Offender Treatment Program or registration as a sex offender because the judgment did not explicitly state the human

trafficking offenses were for commercial sexual activity. Since more than ten days had passed since entry of the judgment,

the Commonwealth moved under RCr 10.10 to amend me juagmeiu w wna. .

-commercial sexual activity” to several of the counts. Nolan objected to this motion. The

cof ^ 3

occurred and amended the judgment accordingly. On appeal Nolan maintains h.s

an oral finding at the sentencing or plea hearing that the relevant convictions were for commercial sexual activity,

making the written amendment a wholly new addition to the sentencing order. We disagree.

A trial court generally loses power to amend its judgment ten days after its entry. Wimlead v.

S^WJd

479 485-86 (Kv 2010). However, the court may amend a clerical error as opposed to judicial errors. RCr 10.10 provides that

"Icllerical mistakes in judgments ... arising from oversight or omission may be corrected by the court at any time on its ow

initiative or on the motion of any party... .” Machniak v. Conmwmreahh 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 intended sentence was explicitly expressed by the tnal court and fully made known to the

parties, and such is readily apparent from the record of the sentencing heating, with no credible

evidence to the contrary.

351 S.W.3d 648, 654 (Ky. 2011).

As described supra a human trafficking conviction involves either foiced labor or services” or ‘'commercial sexual

activity ” KRS 529 010(5) Nolan’s September 14. 2017 indictment included, among other things, nineteen counts °fhui™n

a— allempl taman trafficking of a

lammane “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 dmgs, which constitutes “commercial sexual activity. During

the plea colloquy, the trial court read tire 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 conv ict him of each count.

*10 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 m

Criminal Attempt Human Trafficking of Minor (Count 25)), and “cooperate with the Commonwealth m 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 m its plea colloquy

whh NoTa^ The Judgment and Sentence on Plea of Guilty included, as conditions of the sentence imposed, ffie 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 restnctions, and a five-year additional condit o

discharge period post-incarceration.

The

agreed to expedite transfer to the correctional institution so he could gel started in the program prompt y.

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 forthosc commc c a

sexual activity crimes. A clerical error occurred when the language “commercial sexual activity was omitted from the order

referencing the human trafficking offenses but the trial court properly corrected that clencal error by amending the

when

judgment. We reject Nolan’s argument to the contrary1.

CONCLUSION

For the foregoing reasons, the Campbell Circuit Court’s Amended Judgment and Sentence on Plea of Guilty is affirmed.

All sitting. All concur.