Opinion
NO. 2015-CA-000964-MR
02-17-2017
MARK K. DIXON APPELLANT v. COMMONWEALTH OF KENTUCKY, DEPARTMENT OF CORRECTIONS AND LADONNA THOMPSON, COMMISSIONER APPELLEES
BRIEFS FOR APPELLANT: Mark K. Dixon, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Kentucky Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 15-CI-00240 OPINION
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; NICKELL AND THOMPSON, JUDGES. THOMPSON, JUDGE: Mark K. Dixon, pro se, appeals from an order of the Franklin Circuit Court denying his petition for a declaration of rights alleging he is entitled to additional meritorious work time credits. Because the Department of Corrections (DOC) improperly determined that Dixon is not entitled to work time credit for his nonviolent offenses under Kentucky Revised Statute (KRS) 197.047, we reverse.
Dixon's sole argument on appeal is that the DOC should have provided him with work time credit he accrued while in prison. We hold that the prohibition against awarding work time credit applied to the sentence for his violent offense, but does not apply to his other sentences.
A jury convicted Dixon of burglary in the first degree, and Dixon pled guilty to charges for assault in the first degree and assault under extreme emotional disturbance. Dixon was sentenced as to each of these convictions in the same order for a total of twenty-six years. Dixon claims that because the Court did not sentence him as a violent offender under KRS 439.3401 for the burglary in the first degree and assault under extreme emotional disturbance charges, he should not be denied work time credits for those sentences.
KRS 511.020
KRS 197.047(6)(b) provides that "[t]he sentence credit provisions of this section [concerning work time credits] shall not apply to a prisoner who is serving a . . . [s]entence for a violent offense as defined in KRS 439.3401[.]" KRS 439.3401(1)(c) includes within the definition of "violent offender" any person who is convicted of "[a] Class B felony involving the death of the victim or serious physical injury to a victim[.]" Kentucky Correctional Policy and Procedures (CPP) 19.2(I) defines "work time credit" as "a time credit earned by performing work in an approved job assignment after March 31, 2003 that shall be deducted from an eligible inmate's sentence calculation, as provided in KRS Chapter 197." Assault in the first degree is a Class B felony which involves serious physical injury. KRS 508.010.
Dixon's other convictions, however, do not classify as "violent offenses." KRS 439.3401(1)(k) includes within the definition of "violent offender" "[b]urglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020, 508.032, or 508.060[.]" Though the record in this case is unclear as to the details of Dixon's conviction for burglary in the first degree, in Dixon's appeal of his RCr 11.42 motion to this Court, we stated as follows:
We may take judicial notice of our own opinions. Collins v. Combs, 320 S.W.3d 669, 678 (Ky. 2010).
In May 2000, Dixon was involved in a physical altercation with Tony Dorsey, a neighbor of Dixon's mother. Dorsey was outside his apartment when Dixon attacked him. Dorsey went into his apartment and closed the door. Dixon then kicked the door open, reached inside, pulled Dorsey from the apartment, and continued to assault him.
Dixon was subsequently indicted and charged with burglary in the first degree for entering Dorsey's apartment and causing him physical injury. In the same indictment, Dixon was charged with assault in the first degree for allegedly shooting another individual during an unrelated incident in July 2000. Dixon was also charged with assault in the second degree for allegedly attacking another person in an unrelated incident in
August 2000. The assault charges were later severed from the burglary charge involving Dorsey.Dixon v. Commonwealth, 2007-CA-002438-MR, 2009 WL 414013, (Ky.App. 2009). Dixon's burglary in the first degree conviction did not classify as a "violent offense" under KRS 439.3401 because there is no indication that Dixon's assault on Tom Dorsey constituted assault in the first or second degree, and Dixon's assault in the first degree charge stemmed from an unrelated incident. It is also clear that Dixon's assault under extreme emotional disturbance conviction is not a "violent offense" under KRS 439.3401.
To be guilty of committing assault in the first degree under KRS 508.010(1)(a), a defendant must "intentionally cause[] serious physical injury to another person by means of a deadly weapon or a dangerous instrument[.]" To be guilty of committing assault in the second degree under KRS 508.020, the defendant must either intentionally cause serious physical injury to another, intentionally cause physical injury by means of a deadly weapon or a dangerous instrument, or wantonly cause serious physical injury to another by means of a deadly weapon or a dangerous instrument. There is no indication that these circumstances are present for Dixon's burglary in the first degree conviction. KRS 508.032 and KRS 508.060, the statutes concerning assault of family member or member of an unmarried couple and wanton endangerment in the first degree, respectively, are also plainly inapplicable.
We disagree with the Cabinet's contention that Dixon was ineligible to receive work time credits on all of his sentences because he classified as a violent offender with respect to one of his convictions. KRS 197.047(6)(b) explicitly applies to prisoners "serving a . . . [s]entence for a violent offense as defined in KRS 439.3401[.]" If we interpreted that provision as including both violent and nonviolent offenders it would render that provision meaningless. "[S]tatutes should be construed in such a way that they do not become meaningless or ineffectual." Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000). Dixon is therefore eligible to receive work time credits on his convictions for both burglary in the first degree and assault under extreme emotional disturbance. However, he is eligible only after serving his sentence on the first-degree assault conviction.
For the foregoing reasons, the order of the Franklin Circuit Court dismissing Dixon's petition for a declaration of rights is reversed and this case is remanded with directions to enter an order requiring the Department of Corrections to award Dixon work time credit on his nonviolent offenses after he has served the mandatory 85% of the sentence for his violent offense.
NICKELL, JUDGE, CONCURS.
KRAMER, CHIEF JUDGE, DISSENTS BY SEPARATE OPINION.
KRAMER, CHIEF JUDGE, DISSENTING: I agree with the majority's well-reasoned determination that Dixon was not sentenced as a violent offender under KRS 439.3401 for the burglary in the first degree and assault under extreme emotional disturbance charges. As such, under KRS 197.047 he is eligible to receive work-time credits for those sentences. However, section (7) of KRS 197.047 states, "[t]he department may grant sentence credits to inmates . . . for labor performed in a governmental services program or within a detention facility for the maintenance of the facility or for the operation of facility services such as food service." (Emphasis added). The language in KRS 197.047(7) is permissive. Corrections, thus, has discretion to award or not award work time credit on Dixon's non-violent sentence. Therefore, in my view, the trial court did not err by denying his petition for declaration of rights concerning work for time credit.
Accordingly, I respectfully dissent. BRIEFS FOR APPELLANT: Mark K. Dixon, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Kentucky Justice & Public Safety
Cabinet
Frankfort, Kentucky