Opinion
NO. 2013-CA-001315-MR
01-30-2015
JESSE BRANDENBURG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Jesse Brandenburg, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 08-CR-00017
OPINION
AFFIRMING
BEFORE: CAPERTON, KRAMER AND STUMBO, JUDGES. STUMBO, JUDGE: Jesse Brandenburg appeals from the May 2, 2013 order of the Clark Circuit Court which denied his motion for Kentucky Rules of Civil Procedure (CR) 60.02 relief. We affirm.
Judge Caperton concurred in this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.
In 2008, seventeen-year-old Brandenburg pleaded guilty to the charges of first-degree robbery and facilitation to first-degree robbery. Brandenburg was sentenced to a total of ten years and placed in a youth detention facility. Upon turning eighteen, Brandenburg returned to court for a hearing pursuant to Kentucky Revised Statutes (KRS) 640.030(2). At the conclusion of that hearing, Brandenburg was ordered to serve the remainder of his sentence with the Department of Corrections. In November of 2009, Brandenburg received shock probation. Brandenburg's probation was revoked, however, in May of 2010, when he incurred a new misdemeanor conviction. As a result, Brandenburg was returned to the custody of the Department of Corrections.
On April 25, 2012, Brandenburg filed a motion for amendment of judgment pursuant to CR 60.02. In his accompanying memorandum, Brandenburg argued that he had been incorrectly classified as a violent offender by the Department of Corrections, which would require him to serve 85% of his sentence, as opposed to the 20% he was led to believe during his plea process. Brandenburg requested that the trial court correct the Department of Justice's erroneous classification by amending its judgment to reflect 20% parole eligibility. Ultimately, the trial court opined that Brandenburg could be considered a violent offender, pursuant to Edwards v. Harrod, 391 S.W.3d 755 (Ky. 2013), and denied Brandenburg's motion on May 2, 2013. This appeal followed.
A trial court may, upon a CR 60.02 motion, relieve a party from a final judgment based upon various extraordinary grounds which would justify relief. CR 60.02. We review the disposition of a CR 60.02 motion for an abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). A trial court has abused its discretion when its decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The Violent Offender Statute, KRS 439.3401, confers violent offender status to those convicted of certain crimes. As a result of obtaining such status, offenders are required to serve a certain percentage of their sentence before becoming eligible for probation or parole. KRS 439.3401. Brandenburg argues that his classification as a violent offender was in direct contradiction to his plea agreement, and his plea agreement was therefore made involuntarily. We disagree.
The trial court herein based its decision to deny Brandenburg's motion upon the Edwards case, in which the Supreme Court of Kentucky held "[a] youthful offender is subject to the parole constraints of the Violent Offender Statute throughout the duration of his incarceration[.]" Edwards, 391 S.W.3d at 760. We find no error with the trial court's reliance on Edwards. It has further been held by the Supreme Court of Kentucky that a trial court's failure to advise of the Violent Offender Statute does not serve to invalidate a guilty plea as involuntary. Stiger v. Commonwealth, 381 S.W.3d 230, 235 (Ky. 2012). Moreover, the procedurally proper method in which an inmate may challenge a violent-offender classification is to proceed in an original action against the Department of Corrections, not by filing a CR 60.02 in the original criminal proceeding. Hoskins v. Commonwealth, 158 S.W.3d 214, 217 (Ky. App. 2005). Accordingly, we hold that the Clark Circuit Court did not abuse its discretion when it denied Brandenburg's CR 60.02 motion.
For the foregoing reasons, the May 2, 2013, order of the Clark Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jesse Brandenburg, pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky