Opinion
NO. 2014-CA-001441-MR NO. 2014-CA-001715-MR
04-22-2016
ADRIAN BROWN APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS, COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Adrian Brown, Pro se Eddyville, Kentucky BRIEFS FOR APPELLEE: Allison R. Brown J. Todd Henning Frankfort, Kentucky
NOT TO BE PUBLISHED CONSOLIDATED APPEALS FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NOS. 12-CI-00316 & 12-CI-01439 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: In this consolidated appeal, Adrian Brown, an inmate at the Kentucky State Penitentiary in Eddyville, appeals from the Franklin Circuit Court's August 11, 2014, order reaffirming a previous order dismissing Brown's petition for declaration of rights concerning his eligibility to receive work for time credit. He further appeals from the Franklin Circuit Court's August 21, 2014, order denying his motion for summary judgment and granting the Kentucky Department of Corrections' ("Corrections") motion to dismiss Brown's petition for declaration of rights concerning the award of good time credit. For the following reasons, we affirm both orders.
Brown is a convicted violent offender: he was convicted of two counts of Robbery in the First Degree and Burglary in the First Degree. Both offenses are classified as violent offenses. KRS 439.3401(1). He was also convicted of the non-violent crime of Manslaughter in the Second Degree. This offense was not classified as a violent offense because it did not involve the death of a peace officer or firefighter acting in the line of duty. KRS 439.3401(1) (d). The sentences for the violent crimes were ordered to run concurrently with each other for a total sentence of ten years. For the manslaughter count, Brown received a sentence of five years. The violent and non-violent sentences are ordered to run consecutively for a total of fifteen years' imprisonment.
Kentucky Revised Statutes.
On January 4, 2012, Brown filed an appeal with Corrections seeking work for time credit pursuant to KRS 197.047(5). Corrections denied Brown's appeal, so Brown exhausted his administrative remedies and filed for judicial review a petition for declaration of rights on February 9, 2012. After Corrections responded, the trial court entered an order on December 11, 2012, dismissing Brown's petition for declaration of rights pursuant to CR 12.02 for failure to state a claim upon which relief can be granted. Due to a move from the Marion Adjustment Center to the Kentucky State Penitentiary in Eddyville, Brown did not receive the trial court's order dismissing his petition until May 14, 2013. After receiving the order, Brown filed a motion for reconsideration, and, after this Court denied his motion for a belated appeal, a motion seeking an order nunc pro tunc on his dismissed petition for declaration of rights. The trial court denied Brown's motion for reconsideration on December 6, 2013, and ultimately granted his motion for order nunc pro tunc on August 11, 2014, so as not to deprive Brown of his right of appeal.
Kentucky Rules of Civil Procedure.
On August 6, 2012, Brown filed a separate appeal with Corrections, challenging the award of both statutory and meritorious good time credit. Brown claimed that because he is a "violent" offender, KRS 439.3401 bars Corrections from awarding him any good time credit. Corrections denied Brown's appeal, stating that while KRS 439.3401(4) prohibits the award of statutory good time on the violent offense, since the five-year sentence for the non-violent offense was ordered to run consecutively, Brown is eligible to receive statutory good time on that portion of his sentence. Subsequently, Brown filed a petition for declaration of rights on November 8, 2012. On August 21, 2014, the trial court entered an order granting Corrections' motion to dismiss for failure to state a claim upon which relief can be granted and denying Brown's motion for summary judgment. Brown now appeals the two orders dismissing Brown's two petitions for declaration of rights.
The record is unclear as to whether Brown intended to challenge the calculation of his good time credit or is simply arguing that he should not be eligible to receive any credit. Since he provided the trial court with no competent evidence of an error in calculation, and the trial court only ruled on the issue of his eligibility to receive good time credit, we limit our review to that issue.
Dismissal under CR 12.02(f), or for failure to state a claim upon which relief can be granted, is inappropriate "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." Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). "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).
Corrections "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." KRS 197.047(7) (emphasis added). However, KRS 197.047(6) specifically states "[t]he sentence credit provisions of this section shall not apply to a prisoner who is serving a . . . [s]entence for a violent offense as defined in KRS 439.3401." Since Brown is currently serving a sentence for a violent offense, the trial court correctly ruled that he is not entitled to work for time credit on his violent offense sentence pursuant to KRS 197.047(6). With respect to his non-violent offense sentence, the language of KRS 197.047(7) is clearly permissive. Corrections, thus, has discretion to award or not award work for time credit on Brown's non-violent sentence. Therefore, the trial court did not err by dismissing Brown's petition for declaration of rights concerning work for time credit.
KRS 439.3401 does not specifically define "violent offense" but it does list those offenses that result in an inmate being classified as a "violent offender," a term defined in the statute. As noted, supra, Brown's sentence for robbery in the first degree classifies him as a "violent offender" under KRS 439.3401. --------
In addition to work for time credit, inmates can earn two types of good time credit: statutory and meritorious. An inmate convicted and sentenced to a state penal institution is entitled to automatic statutory good time credit if he satisfies one of the following three criteria:
1. Prior confinement as specified in KRS 532.120;KRS 197.045(1) (a). This statutory good time credit applies to sentences for both violent and non-violent offenses.
2. Successfully receiving a general equivalency diploma or a high school diploma, a two (2) or four (4) year college degree, a two (2) year or four (4) year degree in applied sciences, a completed technical education program, or an online or correspondence education program, each as provided and defined by the department, or a civics education program that requires passing a final exam, in the amount of ninety (90) days per diploma, degree, or technical education program completed; and
3. Successfully completing a drug treatment program or other evidence-based program approved by the department, in the amount of not more than ninety (90) days for each program completed[.]
Inmates may also receive meritorious good time credit if they satisfy one of the following criteria:
1. Good behavior in an amount not exceeding ten (10) days for each month served, to be determined by the department from the conduct of the prisoner;KRS 197.045(1) (b). KRS 439.3401(4) directs: "[a] violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)[(1)]. In no event shall a violent offender be given credit on his or her sentence if the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence." Thus, Brown cannot be awarded meritorious good time credit for good behavior alone; he may only be awarded meritorious good time credit under the last two criteria, and any good time credit, statutory or meritorious, may not reduce his violent offense sentence to less than 85% of the original sentence.
2. Performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operations and programs, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month; and
3. Acts of exceptional service during times of emergency, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month.
However, Brown may be awarded meritorious good time credit for good behavior on his sentence for the non-violent offense. Such an award is within the discretion of Corrections. See Martin v. Chandler, 122 S.W.3d 540, 552 (Ky. 2003); Anderson v. Parker, 964 S.W.2d 809 (Ky. App. 1997); Marksberry v. Chandler, 126 S.W.3d 747, 753 (Ky. App. 2003).
Accordingly, we agree with the trial court that Brown may be awarded statutory good time credit on his violent sentence, insofar as it does not reduce his sentence to less than 85% of the time ordered. Furthermore, since his non-violent sentence runs consecutively to his violent crime sentence, he may be awarded both statutory and meritorious good time credit on his five-year non-violent sentence as prescribed by KRS 197.045. The trial court, therefore, did not err in dismissing Brown's petition regarding good time credit for failure to state a claim.
For the above reasons, the orders of the Franklin Circuit Court are affirmed.
J. LAMBERT, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Adrian Brown, Pro se
Eddyville, Kentucky BRIEFS FOR APPELLEE: Allison R. Brown
J. Todd Henning
Frankfort, Kentucky