Opinion
NO. 2013-CA-000381-MR
01-10-2014
KENNETH R. CAMPBELL APPELLANT v. LADONNA THOMPSON, COMMISSIONER KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEF FOR APPELLANT: Kenneth R. Campbell, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: J. Todd Henning Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 12-CI-00290
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: The issue before us is whether the Breckinridge Circuit Court erroneously dismissed as moot Appellant Kenneth Campbell's petition for declaration of rights contesting his reception of work-time credits (rather than pay) for work performed while incarcerated, and his classification as a violent offender. We find no error and affirm.
In 2007, a jury found Campbell guilty of first-offense manufacturing methamphetamine, firearm enhanced; tampering with physical evidence; first-degree wanton endangerment; marijuana possession, firearm enhanced; and drug paraphernalia possession, firearm enhanced. Campbell v. Commonwealth, 260 S.W.3d 792, 794 (Ky. 2008). He was sentenced to fifty years' imprisonment. Id.
The Department of Corrections erroneously classified Campbell as a non-violent offender when he was received into the prison system. While incarcerated, Campbell received work-time credit against his sentence for work performed. Because Campbell earned work-time credit, he only received half of the pay he would have otherwise earned. In 2012, the Department realized it had misclassified Campbell. It re-classified Campbell as a violent offender and informed him he was no longer eligible to earn sentence credits pursuant to Kentucky Revised Statute (KRS) 197.047(6)(b). However, Campbell was allowed to keep the erroneously-granted work-time credits for work performed prior to the reclassification, and was afforded full pay for work conducted after the re-classification.
Campbell filed a grievance requesting that the Department fully compensate him for the work he performed prior to his re-classification in 2012. Campbell's position was that, because he forfeited his work-time credit when he was re-classified a violent offender, he was entitled to full, as opposed to half, pay for the work he completed between 2007 and 2012. The grievance was denied, and Campbell appealed to the Warden. In that appeal, Campbell stated, "I am not eligible for 'work credit.' I have never been eligible for 'work credit,' pursuant to statute. Therefore, the Department has no statutory authority to 'credit' me with the work credit I was mistakenly given before[.]" (R. at 17). Campbell again asked to be given the "remaining state pay [he was] entitled to[.]" The Warden denied Campbell's request, and Campbell appealed to the Commissioner of the Kentucky Department of Corrections, Appellee LaDonna Thompson. Thompson denied Campbell's grievance appeal, explaining Campbell did not lose the work-credit he earned prior to 2012 and, because he was permitted to retain the work-credit, he was not entitled to any additional compensation for work performed prior to 2012.
Campbell then filed a petition for declaration of rights in Breckinridge Circuit Court pursuant to Kentucky Revised Statute (KRS) 418.040. In his declaration of rights petition, Campbell subtly changed his argument. He requested either "an order that the [Department] reimburse all of the compensation it withheld from April 2007 through June 2012" or "an order instructing the [Department] to classify the charge of manufacturing methamphetamine as a nonviolent offense, and allow [Campbell] to receive all good time credits against his sentence." (R. at 7). While Campbell's declaration petition was pending, the Department agreed to grant Campbell the relief he requested in his grievances: the Department voided the work-time credit Campbell received between 2007 and 2012, and gave Campbell the additional compensation due. Concomitantly, the Department moved to dismiss as moot Campbell's declaration-of-rights petition. The circuit court agreed that the petition no longer presented an actual and justiciable controversy, and granted the Department's motion in an order entered on January 28, 2013. Campbell filed a timely motion to alter, amend, or vacate the judgment pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, arguing the relief he truly sought was to be classified as a non-violent offender. The circuit court denied Campbell's motion, and Campbell timely appealed.
On appeal, Campbell argues the circuit court erred when it refused to address his argument that he was improperly re-classified as a violent offender and erred when it dismissed his petition as moot. The Department counters that Campbell failed to exhaust his administrative remedies with respect to the classification issue and, in turn, received the exact relief he requested in the only claim that he has properly exhausted, i.e., his request for back-pay.
We, like the Department, find suspect Campbell's insistence that he indeed exhausted his administrative remedies with respect to the classification issue. "No action shall be brought by or on behalf of an inmate, with respect . . . to a sentence calculation or challenges to custody credit" unless and until the inmate exhausts his administrative remedies. KRS 454.415(1). For Campbell to raise an issue for judicial review, he must have raised it initially with the administrative body. See Houston v. Fletcher, 193 S.W.3d 276, 277 (Ky. App. 2006) (noting the arguments raised in an inmate's petition for declaration of rights must be identical to those raised in the administrative process). Campbell's position while pursuing his administrative remedies was that he was in fact a violent offender and wanted pay in lieu of sentence credits. It was not until Campbell appeared in circuit court that he first directly advanced his argument that he was actually a non-violent offender and the Department improperly re-classified him in 2012. We are mindful, however, that Campbell is acting pro se and his arguments at all the various stages have lacked legal sophistication. Affording Campbell the benefit of the doubt, and because this issue can easily be resolved, we will address it.
Campbell was found guilty of first-offense manufacturing methampethamine, a Class B felony, KRS 218A.1432, enhanced by possession of a firearm to a Class A felony. KRS 218A.992(1). A person convicted of a Class A felony is deemed a violent offender. KRS 439.3401(1)(b). Campbell's conviction for a Class A felony falls within the parameters of KRS 439.3401(1)(b). The Department properly classified him a violent offender.
KRS 218A.992 states, in pertinent part, that "any person who is convicted of any violation of this chapter who . . . was in possession of a firearm shall: (a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony[.]"
Campbell asserts KRS 218A.992 does not increase the classification of the underlying offense, but merely enhances the penalty. Thus, his Class B felony conviction, Campbell argues, remains a Class B felony conviction. The Kentucky Supreme Court, however, has unequivocally stated otherwise: "[T]his Court has in the past equated the firearm enhancement [KRS 218A.992] with other statutory enhancements that elevate the classification of an offense[.]" Jackson v. Commonwealth, 363 S.W.3d 11, 24 (Ky. 2012). KRS 218A.992 operates to elevate a felony conviction to the next highest class, and subjects the defendant to the penalty range imposed by that higher class. See, e.g, Johnson v. Commonwealth, 105 S.W.3d 430, 434 (Ky. 2003) (by operation of KRS 218A.992, appellant's convictions for Class A misdemeanors were increased to Class D felonies); Houston v. Commonwealth, 975 S.W.2d 925, 926 (Ky. 1998) ("Appellant was convicted of . . . a Class C felony [which] was enhanced to a Class B felony pursuant to KRS 218A.992[.]"). Campbell's argument is meritless.
Campbell further maintains that, if he is a violent offender, he is ineligible for sentencing credit and, therefore, is entitled for full compensation for work performed between 2007 and 2012. We agree. "Violent offenders also cannot receive certain sentencing credit." Id.; KRS 439.3401(4). The Department, albeit not immediately upon Campbell's demand, complied with KRS 439.3401(4) by affording Campbell the relief he requested; it removed the improper award of work credit and fully compensated Campbell for all work prior to 2012. Once it did so, Campbell's petition for declaration of rights became moot, and the circuit court properly dismissed the petition as such.
We affirm the Breckinridge Circuit Court's January 28, 2013 order.
ALL CONCUR. BRIEF FOR APPELLANT: Kenneth R. Campbell, Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: J. Todd Henning
Department of Corrections
Frankfort, Kentucky