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Shackleford v. Erwin

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2018-CA-000962-MR (Ky. Ct. App. May. 31, 2019)

Opinion

NO. 2018-CA-000962-MR

05-31-2019

TIMOTHY SHACKLEFORD APPELLANT v. JAMES ERWIN, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE

BRIEFS FOR APPELLANT: Timothy Shackleford, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Richard D. Lilly Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00133 OPINION
AFFIRMING

** ** ** ** **

BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES. DIXON, JUDGE: Timothy Shackleford, pro se, appeals from an order entered by the Franklin Circuit Court dismissing his petition for declaration of rights. We affirm.

Shackleford is serving an 11-year prison sentence for convictions of second-degree rape and first-degree sexual abuse. Shackleford is classified as a violent offender because his convictions are felony sexual offenses pursuant to KRS Chapter 510. See KRS 439.3401. Shackleford became eligible for parole after he completed the Sex Offender Treatment Program and had served 20% of his sentence. 501 KAR 1:030 § 3(c). Nevertheless, Shackleford was denied parole in September 2015.

In January 2018, Shackleford sought an administrative review of his sentence calculation. Shackleford argued that he was entitled to sentencing credits that reduced his term of imprisonment to less than 85% of his sentence because he became eligible for parole after serving 20% of his sentence, qualifying him for the institutional credits. The Department of Corrections (DOC) denied his request for credit pursuant to the plain language of KRS 439.3401(4), which states:

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.
Shackleford then filed a petition for declaration of rights in Franklin Circuit Court. In response, the DOC moved to dismiss the petition pursuant to CR 12.02(f). The court granted the motion to dismiss, and this appeal followed.

A dismissal for failure to state a claim presents only questions of law; accordingly, our review is de novo. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009).

Shackleford essentially contends that, because he was eligible for parole after serving 20% of his sentence, he should be allowed sentencing credits that reduce his term of imprisonment below 85% of his sentence. Clearly, Shackleford's argument is without merit. It is undisputed that Shackleford is a violent offender. KRS 439.3401(4) plainly prohibits violent offenders from receiving sentencing credit that "reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence." The record reflects that the DOC applied sentencing credits to Shackleford's term of imprisonment until his minimum release date equaled 85% of his sentence. Therefore, Shackleford is not entitled to additional sentencing credits because it would reduce his prison term to less than 85% of his sentence in violation of KRS 439.3401(4).

For the reasons stated herein, we affirm the Franklin Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: Timothy Shackleford, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Richard D. Lilly
Frankfort, Kentucky


Summaries of

Shackleford v. Erwin

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2018-CA-000962-MR (Ky. Ct. App. May. 31, 2019)
Case details for

Shackleford v. Erwin

Case Details

Full title:TIMOTHY SHACKLEFORD APPELLANT v. JAMES ERWIN, COMMISSIONER, KENTUCKY…

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 31, 2019

Citations

NO. 2018-CA-000962-MR (Ky. Ct. App. May. 31, 2019)