Opinion
NO. 2016-CA-000822-MR
02-02-2018
BRIAN MEEKS APPELLANT v. DEPARTMENT OF CORRECTIONS APPELLEE
BRIEF FOR APPELLANT: Brian Meeks, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00284 OPINION
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. LAMBERT, D., JUDGE: Brian Meeks (Meeks) appeals from the judgment of the Franklin Circuit Court dismissing his petition for a declaration of rights. Because we determine that the record is insufficient to determine whether Meeks was classified as a violent offender under KRS 530.020(2)(b), we reverse and remand.
Kentucky Revised Statutes.
I. BACKGROUND
Meeks pled guilty to rape in the third degree under KRS 510.060(1)(b), incest under KRS 530.020(2)(b), sodomy in the third degree under KRS 510.090(1)(c) and sexual abuse in the first degree under KRS 510.110(1)(c). He received sentences of five years' imprisonment for his rape in the third degree charge, ten years' imprisonment for his incest charge, five years' imprisonment for his sodomy in the third degree charge and five years' imprisonment for his sexual abuse charge. The sentences ran concurrently for a total of ten years.
After seeking administrative review, Meeks filed a claim in the Franklin Circuit Court alleging that the Department of Corrections (the Department) should not have classified him as a violent offender. The trial court dismissed the petition, finding that it failed to state a claim upon which relief may be granted. This appeal followed.
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal citations and quotation marks omitted).
III. DISCUSSION
Meeks argues the following on appeal: 1) the trial court erred because it permitted the Department to file an untimely response to his petition for a declaration of rights; 2) the Department improperly "amended" his indictment when it classified him as a violent offender; 3) the Department violated his right to a unanimous verdict when it classified him as a violent offender; 4) the Department improperly classified him as a violent offender; 5) he was not served with the Department's response and motion to dismiss; and 6) the Department failed to issue a ruling on his administrative appeal. Because we determine that classifying Meeks under KRS 530.020 would be error if Department failed to provide a sufficient record for our review on the matter, we reverse and remand.
Meeks argues that the Department's response was not filed in a timely manner and it was error for the trial court to consider it. CR 4.02 provides as follows:
We consider Meeks' arguments in a slightly different order than he presented them to this Court for organizational reasons.
Kentucky Rules of Civil Procedure.
The summons shall be issued in the name of the Commonwealth, be dated and signed by the clerk,
contain the name of the court and the style and number of the action, and be directed to each defendant, notifying him that a legal action has been filed against him and that unless a written defense is made by him or by an attorney in his behalf within 20 days following the day on which the summons is served on him a judgment may issue against him for the relief demanded.(Emphasis added.) It is true that in this case the Department filed its answer 30 days after Meeks filed his complaint. The Department argues that Meeks' service was ineffective because he named a state agency and state officials in their individual capacities, stating that each of the filings in this case were sent to the Department directly instead of being processed through the normal channels through serving the Attorney General. Because the Attorney General had not been served, the Department argues, service had not been effected within CR 4.02. CR 4.04(6) provides that "[s]ervice shall be made upon the Commonwealth or any agency thereof by serving the attorney general or any assistant attorney general." We agree that Meeks did not properly serve the Department of Corrections, and therefore the Department did not file an untimely response. See generally Arlinghaus Builders, Inc. v. Kentucky Pub. Serv. Comm'n, 142 S.W.3d 693, 697 (Ky. App. 2003) (holding that the dismissal of an action was not warranted where service upon Attorney General was delayed). Therefore, the circuit court did not err when it permitted the Department to file a response outside of the time specified in CR 4.02.
Meeks argues that the Commonwealth "amended" his indictment after he was convicted because it classified him as a violent offender under KRS 439.3401. Meeks contends that this violated Kentucky's public policy under KRS 11A.005, and that it violated his right to a unanimous verdict. Although Meeks is correct that he was not indicted under KRS 439.3401, it is not necessary to indict an inmate in order for the Department to classify that inmate as a violent offender. "[T]he decision concerning whether or not to classify [an inmate] as a violent offender [is] made by the Department of Corrections. The circuit court's only role is to make the factual determination set forth in KRS 439.3401(1)." Hoskins v. Commonwealth, 158 S.W.3d 214, 217 (Ky. App. 2005). "[T]rial courts ... cannot classify a defendant as a violent offender." Newcomb v. Commonwealth, 410 S.W.3d 63, 90 n.93 (Ky. 2013). Meeks is therefore not entitled to relief on either of these issues.
Meeks argues that he was incorrectly classified as a violent offender. KRS 439.3401(1)(e) includes within the definition of "violent offender" any person found guilty of "[t]he commission or attempted commission of a felony sexual offense described in KRS Chapter 510[.]" This provision encompasses Meeks' rape in the third degree conviction under KRS 510.060, his sodomy in the third degree conviction under KRS 510.090, and his sexual abuse in the first degree conviction under KRS 510.110. The Department correctly classified Meeks as a violent offender in regard to each of these convictions pursuant to KRS 439.3401(1)(e).
Meeks also argues, however, that he was erroneously classified as a violent offender for his incest conviction under KRS 530.020(2)(b). An incest offense under KRS 530.020(2)(b) is a Class B felony, and there were no allegations that death or serious injury occurred to the victim in order to classify Meeks as a violent offender under KRS 439.3401(1)(c). Additionally, incest under KRS 530.020(2)(b) does not fall within the purview of KRS 439.3401(1)(e) because incest is not within KRS Chapter 510. Because Meeks' incest conviction falls within no provision of KRS 439.3401, classifying Meeks as a violent offender for this conviction would be error.
Although the Department makes an argument concerning Meeks' post-incarceration supervision, Meeks apparently did not make this argument on appeal. Regardless, we note that KRS 532.043 explicitly applies to offenses under KRS Chapter 510 and KRS 530.020. KRS 532.043(1).
Meeks pled guilty to incest under KRS 530.020(2)(b). Incest is only a Class A felony if the victim is under 12 years old or the offense involves serious physical injury to the victim. KRS 530.020(c). Because Meeks pled guilty to a Class B felony and the case did not involve serious physical injury, classification as a violent offender under KRS 439.3401(1)(c) is improper. --------
However, since the circuit court dismissed Meeks' petition for failure to state a claim, there was no opportunity for Meeks to show why the Department improperly classified him as a violent offender for his convictions. This Court has previously determined that under KRS 13B.130, the burden is on an "administrative agency to create and maintain a complete and orderly official record of the proceedings that is readily capable of review." Monumental Life Ins. Co. v. The Dep't of Revenue, 201 S.W.3d 500, 501 (Ky. App. 2006). "While it is generally appellant's responsibility to ensure an adequate record for judicial review, the statutory duty of an administrative agency to provide a complete and orderly official record is manifestly paramount." Id. at 502. And in the present case, the Department failed to provide such a record. Therefore, we must remand the matter to the circuit court to specifically determine whether Meeks was, in fact, classified as a violent offender based on his convictions, and if so, whether that classification was appropriate. Moreover, because Meeks alleged he did not receive a timely response to his administrative appeal, further proceedings are necessary to determine whether the Department complied with Kentucky's procedural requirements.
Accordingly, the Franklin Circuit Court's order dismissing the petition for declaration of rights is reversed, and the matter is remanded for further findings and analysis consistent with this opinion.
KRAMER, CHIEF JUDGE, AND NICKELL, JUDGE, CONCUR IN RESULT ONLY. BRIEF FOR APPELLANT: Brian Meeks, Pro Se
Burgin, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs
Justice & Public Safety Cabinet
Frankfort, Kentucky