Opinion
NO. 2018-CA-000185-MR
09-20-2019
JAMES FORTE APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS RODNEY BALLARD, COMMISSIONER APPELLEE
BRIEFS FOR APPELLANT: James Forte, Pro Se Fredonia, Kentucky BRIEF FOR APPELLEE: Allison R. Brown Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 17-CI-00329 OPINION
AFFIRMING
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BEFORE: JONES, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: James Forte, pro se, brings this appeal from a May 24, 2017, Order of the Franklin Circuit Court dismissing his Petition for Declaration of Rights regarding his classification as a violent offender pursuant to Kentucky Revised Statutes (KRS) 439.3401. We affirm.
Following a jury trial in the Christian Circuit Court in 2014, Forte was adjudicated guilty of robbery in the first degree, burglary in the first degree, and assault in the first degree. By judgment and sentence of imprisonment entered by the trial court on February 14, 2015, Forte was sentenced to ten years in prison on the first-degree robbery conviction, ten years on the first-degree burglary conviction, and thirteen years on the first-degree assault conviction, all of which were ordered to run concurrently.
On April 19, 2017, Forte filed a Petition for Declaration of Rights in the Franklin Circuit Court. Forte named the Kentucky Department of Corrections, Rodney Ballard, Commissioner, as respondent. In the petition, Forte asserted that the Kentucky Department of Corrections (Department) erred by classifying Forte as a violent offender under KRS 439.3401. By Order entered May 24, 2017, the Franklin Circuit Court dismissed Forte's petition for failure to state a claim upon which relief can be granted. Kentucky Rules of Civil Procedure (CR) 12.02(f). This appeal follows.
A motion to dismiss for failure to state a claim under CR 12.02(f) is a question of law and is therefore subject to de novo review. Campbell v. Ballard, 559 S.W.3d 869, 870 (Ky. 2018) (citing Carruthers v. Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012)). The pleadings must be liberally construed in a light most favorable to petitioner, and the allegations contained in the complaint are taken as true. Id. at 870.
Forte contends the circuit court erred by dismissing his Petition for Declaration of Rights. Forte asserts he is entitled to relief as the Department improperly classified him as a violent offender pursuant to KRS 439.3401(1). More particularly, Forte contends that the February 14, 2015, judgment did not designate his first-degree robbery offense as one that caused death or serious physical injury as required under KRS 439.3401(1). Thus, Forte believes he should not be designated as a violent offender.
The statute at issue, KRS 439.3401, provides, in relevant part:
We apply the version of Kentucky Revised Statutes (KRS) 439.3401 as it existed on February 14, 2015, when James Forte's judgment of conviction and sentence of imprisonment was entered. --------
(1) As used in this section, "violent offender" means any person who has been convicted of or pled guilty to the commission of:
(a) A capital offense;
(b) A Class A felony;
(c) A Class B felony involving the death of the victim or serious physical injury to a victim;
. . . .
(m) Robbery in the first degree.
KRS 439.3401(1).
The court shall designate in its judgment if the victim suffered death or serious physical injury.
A plain reading of KRS 439.3401 identifies a violent offender as a person that has been convicted of or pled guilty to, inter alia, a capital offense, a Class A felony, a Class B felony involving death or serious physical injury of the victim, or robbery in the first degree. KRS 439.3401(1). Our Court has recognized that some Class B felonies do require a finding that the victim suffered death or serious physical injury. Campbell, 559 S.W.3d at 871. As to first-degree robbery, this Court specifically held:
[W]here the Class B felony is robbery, the felon is automatically considered a violent offender. The violent offender statute is clear that any person who has been convicted of or pled guilty to the commission of robbery in the first degree qualifies as a violent offender. No designation [that the victim suffered death or serious physical injury] by the trial court is required.Id. (citations omitted).
In the case sub judice, Forte became a violent offender when he was adjudicated guilty of robbery in the first degree. As he was convicted of first-degree robbery, Forte qualifies as a violent offender without the trial court designating that the victim suffered death or serious physical injury. See Campbell, 559 S.W.3d at 871. Therefore, the circuit court properly dismissed Forte's Petition for Declaration of Rights.
For the foregoing reasons, the Order of Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: James Forte, Pro Se
Fredonia, Kentucky BRIEF FOR APPELLEE: Allison R. Brown
Department of Corrections
Frankfort, Kentucky