RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-000986-MR

CONNIE DALE BAKER APPELLANT

APPEAL FROM BOYLE CIRCUIT COURT

v. HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 92-CR-00089

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

DISMISSING 

**   **  **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

CALDWELL, JUDGE: Connie Dale Baker seeks review of an order denying 

relief on a motion he filed pursuant to Kentucky Rules of Criminal Procedure

(RCr) 10.10 and another motion seeking to withdraw a guilty plea he entered in 

1993. As this Court lacks jurisdiction, an indispensable party was not named, and 

this matter is moot, we dismiss. 
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FACTS

Connie Dale Baker was tried and convicted of various felony offenses 

in the Boyle Circuit Court in 1993 and was sentenced to a total concurrent sentence 

of imprisonment for life without the benefit of parole for twenty-five years. On 

direct appeal, the Kentucky Supreme Court affirmed his convictions and sentences. 

As he neared having served twenty-five years and was anticipating 

parole eligibility, Baker was informed by the Department of Corrections that he 

would not be eligible for some additional twelve years as the parole eligibility of 

his various sentences must be “stacked.” He filed various challenges to this 

incorrect interpretation, amongst them the motions on appeal in the instant case—a 

motion to withdraw his guilty plea and a motion to correct a clerical error pursuant 

to RCr 10.10. 

During the pendency of this matter, Baker actually received the relief 

he sought here when another pleading he had filed in the Franklin Circuit Court, a 

petition for declaration of rights, caused the Department of Corrections to conduct 

an audit of his parole eligibility calculation which resulted in identification of the

calculation error. Baker was given a parole hearing in August of 2019, at which 

time parole was deferred for sixty months. 
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ANALYSIS

1. Mootness

When during the pendency of an appeal, circumstances change such 

that the relief sought via the appeal is superfluous or otherwise granted, such as 

here, the appeal becomes moot.

The general rule is, and has long been, that “where, 

pending an appeal, an event occurs which makes a 

determination of the question unnecessary or which 

would render the judgment that might be pronounced 

ineffectual, the appeal should be dismissed.” Louisville 

Transit Co. v. Dep’t of Motor Transp., 286 S.W.2d 536, 

538 (Ky. 1956); Choate v. Koorsen Protective Services, 

Inc., 929 S.W.2d 184 (Ky. 1996); Commonwealth, 

Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433 

S.W.3d 341 (Ky. 2014).

Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014).

We take judicial notice of the declaratory rights petition and the 

resultant order of the Franklin Circuit Court.1 As recited in that Franklin Circuit 

Court order, the Department of Corrections caused an audit to be conducted of 

Baker’s parole eligibility upon receipt of the declaratory rights petition, which 

resulted in the correction of the error he sought. Because the relief he requests 

here was already received by him, this action is moot.

 

1

19-CI-00157, Franklin Circuit Court, Division II.
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2. Lack of Jurisdiction

The circuit court was without jurisdiction to entertain either of the 

motions filed by Baker. RCr 8.10 requires that a motion to withdraw a guilty plea 

be filed between the entry of the plea and the entry of final judgment; “[a]t any 

time before judgment the court may permit the plea of guilty . . . to be withdrawn 

and a plea of not guilty substituted.” (Emphasis added.) Of course, a circuit court 

loses jurisdiction ten days after entry of the judgment and no longer is imbued with 

jurisdiction to consider such a motion. Kentucky Rules of Civil Procedure (CR)

52.02. 

There was no clerical error which needed correction; a clerical error 

involves an apparent error, such as an incorrect or missing date, a transcribing 

error, or a mathematical error when calculating a judgment.2 There was no error of 

any sort in the judgment. All error was in the Department of Corrections’

interpretation, not within the judgment. Again, as there was no error, clerical or 

otherwise, in the judgment, the circuit court was without jurisdiction of any sort to 

modify the judgment some twenty-six years after its entry.

As the circuit court had no jurisdiction, this Court is likewise without 

jurisdiction. “As the trial court did not have jurisdiction to adjudicate Appellant’s 

 

2

See Machniak v. Commonwealth, 351 S.W.3d 648, 652-54 (Ky. 2011). 
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motion, this Court is similarly without jurisdiction to hear any appeal therefrom.” 

Bush v. Commonwealth, 236 S.W.3d 621, 623 (Ky. App. 2007).

3. Indispensable Party

Failure to name an indispensable party, to wit, the Department of 

Corrections in this matter, requires dismissal of the action, and it was error for the 

circuit court not to so dismiss. Because the relief that Baker was seeking was an 

order instructing the Department of Corrections to find he had become parole 

eligible, the Department must have been a named party. 

In Mason v. Commonwealth, on direct appeal the Appellant raised 

several errors related to trial and sentence. 331 S.W.3d 610 (Ky. 2011). In 

discussing a sentencing error, the Supreme Court noted that it appeared the 

Department of Corrections might have improperly classified the Appellant and

incorrectly calculated his parole eligibility. In holding that such error did not 

involve the judgment of the circuit court, but rather the post-judgment decisionmaking of the Department of Corrections, the Supreme Court stated, 

it is beyond dispute that a court generally should not 

issue an opinion or judgment against an entity that is not 

a party to the action or is not otherwise properly before 

the court. We decline, therefore, to order the Department 

of Corrections—which has not been made a party to this 

appeal and is not properly before us to either defend its 

action or to confess error—to take any affirmative action 

with regard to Mason’s offender classification or parole 

eligibility.
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Id. at 629.

Thus, the same result here. Parole eligibility determinations are the 

purview of the Department of Corrections, and, thus, they were an indispensable 

party in this action challenging the determination of Baker’s parole eligibility. “It 

is well-established that failure to name an indispensable party in the notice of 

appeal results in dismissal of the appeal.” Slone v. Casey, 194 S.W.3d 336, 337 

(Ky. App. 2006). Even if the other previously identified impediments to this 

litigation were absent, this failure to include an indispensable party would require 

dismissal.

CONCLUSION

We find that this matter is moot as the declaration of rights 

contemporaneously filed by Baker successfully brought him the relief he sought in 

the circuit court. We find that the circuit court had no jurisdiction to consider the 

motions filed therein, and therefore this Court has no jurisdiction. Lastly, we find 

that Baker failed to include an indispensable party when he did not name the 

Department of Corrections. All of the above require dismissal. Therefore, we 

hereby dismiss this appeal.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Connie Dale Baker, pro se

Burgin, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Ken W. Riggs

Assistant Attorney General

Frankfort, Kentucky