Power v. Dep't of Corr.

Full title: GREGORY POWER APPELLANT v. DEPARTMENT OF CORRECTIONS APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 30, 2018

NO. 2017-CA-000985-MR (Ky. Ct. App. Mar. 30, 2018)

Opinion

NO. 2017-CA-000985-MR

03-30-2018

GREGORY POWER APPELLANT v. DEPARTMENT OF CORRECTIONS APPELLEE

BRIEF FOR APPELLANT: Gregory Power, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Kristin Wehking Frankfort, Kentucky

ACREE, JUDGE

NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00593 OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, COMBS, AND JONES, JUDGES. ACREE, JUDGE: The issue before us is whether the Franklin Circuit Court improperly dismissed Appellant Gregory Power's petition for declaration of rights challenging his classification as a violent offender and a sex offender. We find no error and affirm.

In 2005, Power pleaded guilty to first-degree rape and first-degree sodomy in Scott Circuit Court. The underlying basis for those crimes was that Power engaged in sexual intercourse with a thirteen-year-old female (his then step-daughter) using forcible compulsion. The Scott Circuit Court sentenced him to fifteen-years' imprisonment.

The Department of Corrections, upon receiving custody of Power, classified him as a violent offender and as a sexual offender. Power filed a grievance requesting that the Department re-classify him as a nonviolent offender and award him statutory good-time and work-time credit. His grievance was denied, and Power appealed through the proper administrative channels. His appeals were likewise denied.

Power then filed a petition for declaration of rights in Franklin Circuit Court pursuant to Kentucky Revised Statute (KRS) 418.040. He challenged the Department of Correction's classification of him as a violent offender under KRS 349.3401. He also argued that the Department erroneously classified him as a sex offender saddled with the duty to register as a sex offender upon release. The Department moved to dismiss the petition. The circuit court granted that motion. This appeal followed.

Power argues he is not a violent offender under KRS 439.3401(1)(c) because, while he was convicted of a Class B felony, his offense did not involve "the death of the victim or serious physical injury to a victim[.]" KRS 439.3401(1)(c). He also asserts the circuit court violated his due process rights because it failed to make the requisite finding of death or serious physical injury in its judgment.¹ We need not address whether Power's offense involved death or serious physical injury to a victim. Another subsection of the violent-offender statute applies that unquestionably renders Power a violent offender regardless of whether the victim died or suffered serious physical injury.

1 Power has abandoned before this Court his claim that the Department improperly classified him as a sexual offender, thereby requiring him to register as a sex offender upon his release. He only argues in his brief that the Department improperly classified him as a violent offender. We tailor our discussion accordingly. --------

Relevant to this case, Kentucky's violent-offender statute, KRS 439.3401, defines a "violent offender" as "any person who has been convicted of or pled guilty to the commission of: . . . (c) A Class B felony involving the death of the victim or serious physical injury to a victim; . . [or] (e) The commission or attempted commission of a felony sexual offense described in KRS Chapter 510[.]" KRS 439.3401(1)(c), (e).

Power pleaded guilty to first-degree rape, a Class B felony. KRS 510.040(2). First-degree rape is a felony sexual offense. KRS 510.040(1) (a person is guilty of first-degree rape when "[h]e engages in sexual intercourse with another person by forcible compulsion"); KRS 510.040(2) ("Rape in the first degree is a Class B felony."). A person convicted of a felony sexual offense described in KRS Chapter 510 is deemed a violent offender. KRS 439.3401(1)(e). Power's conviction for first-degree rape, a felony sexual offense under KRS 510.040, falls within the parameters of KRS 439.3401(1)(e). This subsection does not require that the victim die or suffer serious physical injury, and the Scott Circuit Court was under no obligation to make this finding in its judgment. The Department properly classified Power a violent offender.

We affirm the Franklin Circuit Court's May 22, 2017 opinion and order dismissing Power's petition for declaration of rights challenging his classifications as a violent and sexual offender.

ALL CONCUR. BRIEF FOR APPELLANT: Gregory Power, Pro Se
Burgin, Kentucky BRIEF FOR APPELLEE: Kristin Wehking
Frankfort, Kentucky