Opinion
NO. 2017-CA-001216-MR
07-13-2018
KENNETH LEE APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS AND STEVE WOODWARD, WARDEN APPELLEES
BRIEF FOR APPELLANT: Kenneth Lee, pro se Fredonia, Kentucky BRIEF FOR APPELLEE: Allison Rene Brown Department of Corrections Office of Legal Services Frankfort, Kentucky Brenn O. Combs Justice of Public Safety Cabinet Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 16-CI-00149 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT AND SMALLWOOD, JUDGES. DIXON, JUDGE: Appellant, Kenneth Lee, appeals pro se from an order of the Lyon Circuit Court dismissing his Petition for Declaration of Rights regarding his classification as a "violent offender" under KRS 439.3401. Finding no error, we affirm.
By judgment entered October 29, 2015, the Jefferson Circuit Court sentenced Appellant to fifteen years' imprisonment pursuant to his entry of a guilty plea on twelve counts of first-degree robbery. As a result, the Department of Corrections ("DOC") classified Appellant as a violent offender under KRS 439.3401(1), which requires him to serve eighty-five percent of his sentence prior to being eligible for parole. On October 26, 2016, Appellant filed a Petition for Declaration of Rights pursuant to KRS 418.040 seeking to be reclassified as a non-violent offender with a parole eligibility requirement of twenty percent rather than eighty-five percent of his sentence. Appellant argued that because the trial court did not designate in the final judgment of conviction that his first-degree robbery offenses resulted in serious physical injury or death, the DOC violated his constitutional rights by classifying him as a violent offender.
On May 16, 2017, the trial court entered an order dismissing Appellant's petition for failure to state a claim pursuant to CR 12.02(f). Therein, the trial court ruled that KRS 439.3401(1)(m) specifically lists first-degree robbery as a violent offense, thus making Appellant a violent offender as a matter of law. This appeal ensued.
On appeal, Appellant argues his constitutional rights were infringed when the DOC erroneously calculated his parole eligibility under KRS 439.3401 and designated him as a violent offender. Appellant opines he is not a violent offender because the final judgment did not contain a finding that a "victim suffered death or a serious physical injury." KRS 439.3401(1). Appellant seizes on dicta contained in the Kentucky Supreme Court's decision in Pate v. Department of Corrections, 466 S.W.3d 480 (Ky. 2015), to conclude that first-degree robbery is not a violent offense under KRS 439.3401(1) unless there is a designation in the trial court's judgment that the victim suffered serious physical injury or death. We must disagree.
The trial court dismissed this case for failure to state a claim upon which relief can be granted. CR 12.02(f) provides that a trial court should not grant a motion to dismiss:
Unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making this decision, the circuit court is not required to make factual determination; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (quotation omitted). Because the determination of whether a matter should be dismissed under the rule is a matter of law, this Court's review is de novo. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. 2005).
KRS 439.3401, which governs parole for violent offenders, was enacted in 1986 and provides in relevant part as follows:
The Legislature in the 2018 regular session amended the statute to include within the definition of a violent offender, anyone who has been convicted of or pled guilty to "(e) A Class B felony involving criminal attempt to commit murder under KRS 506.010 if the victim of the offense is a clearly identifiable peace officer or firefighter acting in the line of duty, regardless of whether an injury results[.]" --------
(1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
. . .
(m) Robbery in the first degree.
In 2002, the legislature amended KRS 439.3401 to specifically include first-degree robbery as a stand-alone violent offense.
The court shall designate in its judgment if the victim suffered death or serious physical injury.
. . .
(3) (a) A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.
. . .
(8) The provisions of subsection (1) of this section extending the definition of "violent offender" to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.
In Fambrough v. Department of Corrections, 184 S.W.3d 561 (Ky. App. 2006), this Court considered the same argument raised by Appellant herein in the context of a first-degree sodomy conviction. Therein, we noted,
As can be seen, the violent offender statute does not apply to all Class B felonies, and the violent offender statute is not simply limited to those Class B felonies in which the victim died or suffered serious physical injuries. The statute clearly states that a violent offender is anyone who has pled guilty to or was convicted of sodomy in the first degree. KRS 439.3401(1). The statute applies to all convictions for sodomy in the first degree; just as it applies to all convictions for any capital offense, for any Class A felony and for rape in the first degree regardless whether the victim suffered death or serious physical injury. See Jackson v. Taylor, 153 S.W.3d 842 (Ky. App. 2004). In the present case, the judgment reflects that Fambrough pled guilty to sodomy in the first degree. This was sufficient to put DOC on notice that the violent offender statute applied to him. DOC correctly classified Fambrough as a violent offender pursuant to KRS 439.3401(1) despite the absence of the "death or serious physical injury" language from the trial court's judgment.Id. at 563. Subsequently, the Kentucky Supreme Court affirmed this Court's interpretation of KRS 439.3401 in Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008):
[W]e also reject Benet's argument that he should not be, or cannot be, classified as a violent offender under KRS 439.3401 because the trial court's final judgment did not specifically designate him as a violent offender. We agree with the Court of Appeals' recent conclusion that a defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation. Thus, the trial court's failure to designate Benet as a violent offender in the final judgment of conviction is, at least for purposes of this appeal, of no legal significance.Id. at 533 (footnotes omitted).
In Pate, relied on by Appellant, the appellant was convicted of a Class A felony (manufacturing methamphetamine, second offense). However, based on the DOC's interpretation of the pre-2006 version of the statute, it classified him as a nonviolent offender because there was no ascertainable victim. Over four years later, however, following the General Assembly's amendment of KRS 439.3401, the DOC reclassified the appellant as a violent offender. The matter ultimately reached the Kentucky Supreme Court which concluded that it was the legislature's intent to include all Class A felonies within the definition of a violent offense:
The statute's wording is clear in that it bestowed the categorization of violent offender to those criminals who committed certain felony offenses. KRS 439.3401 enumerated general offenses followed by more specific offenses, which if committed, rendered the criminal a violent offender. The general offenses—capital offenses, Class A felonies, and Class B felonies—are placed together in the same sentence separated by commas, while the more specific offenses are listed after the qualifying phrase "involving the death of the victim or serious physical injury to a victim." Accordingly, we are left to speculate as to whether the qualifying phrase applied to all three general offenses, or just to the offense that directly precedes it.Pate, 466 S.W.3d at 488-89. It is the above language that Appellant believes supports his argument that trial court is required to designate in its judgment that a victim suffered death or other serious physical injury whenever a defendant is convicted of any offenses listed in KRS 439.3401(1). We must disagree.
In viewing KRS 439.3401 in its entirety, this Court believes that the General Assembly had the intent of categorizing all Class A felonies as violent offenses, not just those wherein the victim suffered death or serious physical injury. There is no requirement that the Class A crime have a victim who suffers death or serious physical injury. Only the Class B felonies require it. Those Class B felonies include first-degree rape, first-degree sodomy, first-degree robbery, and first-degree burglary when accompanied by a felony sexual offense, assault, or kidnapping.
We are of the opinion that the Supreme Court's reference to the enumerated offenses, including first-degree robbery, in the second paragraph above was merely dicta. In the first paragraph quoted above, the Court states that KRS 439.3401 includes, in addition to Class B felonies resulting in death or serious injury, other "specific offenses, which if committed, render[] the criminal a violent offender." Id. at 488. In other words, it expressly agreed that conviction of one of the enumerated offenses, regardless of whether serious injury or death resulted, would result in a violent offender designation. Further, had the Court intended to overrule its holding in Benet and essentially adopt the position that Appellant asserts herein, it would have expressly done so. However, the Pate decision makes no mention of Benet. Finally, the Court denied discretionary review in a recent unpublished decision in Stephens v. Commonwealth, 2015-CA-001671-MR (October 21, 2016), wherein this Court again examined the issue of whether a designation of death or serious physical injury was required where a defendant was convicted of an offense specifically enumerated in KRS 439.3401:
Stephens maintains the circuit court improperly determined him to be a violent offender since the written judgment does not state whether death or serious physical injury occurred. Stephens argues that such a determination is required by the language of the violent
offender statute, KRS 439.3401(1). The statute does state that "[t]he court shall designate in its judgment if the victim suffered death or serious physical injury." But this provision does not apply to those who are captured by the portion of the statute applicable to Stephens, KRS 439.3401(1)(e): "As used in this section, 'violent offender' means any person who has been convicted of or pled guilty to the commission of . . . [t]he commission or attempted commission of a felony sexual offense described in KRS Chapter 510." The issue of death or serious physical injury is a relevant question for those captured by KRS 439.3401(1)(c), which designates violent offenders as those who are convicted or plead guilty to "[a] Class B felony involving the death of the victim or serious physical injury to a victim."Slip op. pg. 2.
This interpretation is supported by an examination of our case law. "[The Kentucky Department of Corrections] correctly classified Fambrough as a violent offender pursuant to KRS 439.3401(1) despite the absence of the 'death or serious physical injury' language from the trial court's judgment." Fambrough v. Department of Corrections, 184 S.W.3d 561, 563 (Ky. App. 2006); see also Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008).
Although KRS 439.3401(1) does state that the trial court "shall designate in its judgment if the victim suffered death or serious physical injury[,]" we believe that this sentence merely means that a trial court shall make note of physical injury or death in its judgment, if such injury or death occurred. However, a finding of death or serious physical injury is not a prerequisite to classifying a person as a violent offender under the enumerated offenses contained in KRS 439.3401(1) unless otherwise specified. Such conclusion is bolstered by the language of KRS 439.3401(1)(c), which, unlike the enumerated offenses, requires a finding of death or serious physical injury if the crime is a Class B felony not otherwise delineated in the statute.
The same rationale that was applied in Fambrough in the case of a first-degree sodomy conviction applies equally to the first-degree robbery conviction at bar. Accordingly, as the statute applies to Appellant, it reads: "[a]s used in this section, 'violent offender' means any person who has been convicted of or pled guilty to the commission of . . . [r]obbery in the first degree." KRS 439.3401(1)(m). When Appellant pled guilty to first-degree robbery, he automatically became a violent offender under the plain meaning of the statute regardless of whether the final judgment contained any such designation. As such, we are of the opinion that Appellant was properly designated as a violent offender under KRS 439.3401. Fambrough, 184 S.W.3d at 563.
Appellant next argues that the trial court erred by considering the Commonwealth's untimely response to his petition. Specifically, in March 2017, Appellant filed a motion for summary judgment on the grounds that the trial court had previously dismissed the Commonwealth's motion to dismiss for failure to exhaust administrative remedies in January 2017, yet the Commonwealth had not filed a response to the Petition for Declaration of Rights. The trial court thereafter entered an order on March 27, 2017, giving the Commonwealth "through and including the close of business April 7, 2017, within which time to file a responsive pleading or dispositive motion." The trial court further noted that, "[f]ailing receipt of such a filing, the Court will grant the Petitioner's motion for Summary Judgment." Despite the trial court's warning, the Commonwealth did not file its motion to dismiss pursuant to CR 12.02(f) until May 5, 2017. As such, Appellant now contends that the trial court was prohibited from considering the Commonwealth's motion. We must disagree.
As the trial court noted in its order of dismissal, despite having stated that the Commonwealth's failure to respond by the deadline would result in it granting Appellant's motion for summary judgment, "the Court would still have to consider whether Petitioner is entitled to the relief sought." The trial court further noted that "the language in [KRS 439.3401(1)] clearly provides that Petitioner is a violent offender as a matter of law" because KRS 439.3401(1)(m) lists first-degree robbery as a violent offense. Under the criteria required for consideration of a motion to dismiss pursuant to CR 12.02(f), the trial court correctly concluded that Appellant's petition failed to state a claim for which relief could be granted. As such, dismissal was proper.
For the reason set forth herein, the order of the Lyon Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kenneth Lee, pro se
Fredonia, Kentucky BRIEF FOR APPELLEE: Allison Rene Brown
Department of Corrections
Office of Legal Services
Frankfort, Kentucky Brenn O. Combs
Justice of Public Safety Cabinet
Office of Legal Services
Frankfort, Kentucky