Denham v. Ky. Dep't of Corr.

BRANDON DENHAM APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE

NO. 2017-CA-001218-MR

Commonwealth of Kentucky Court of Appeals

JULY 6, 2018

NOT TO BE PUBLISHED

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 17-CI-00523

OPINION

AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES.

JOHNSON, JUDGE: Brandon Denham brings this pro se appeal from an order of the Franklin Circuit Court dismissing his petition for declaration of rights. Denham alleges that the Kentucky Department of Corrections incorrectly classified him as a violent offender because the judgment convicting him of a Class B felony failed to specify that the victim died or suffered a serious physical injury as a result of Denham's actions. After reviewing the record in conjunction with the applicable legal authorities, we affirm the order of the Franklin Circuit Court.

BACKGROUND

In addition to other charges not pertinent to this appeal, Denham pled guilty to Robbery, First-Degree.¹ The Jefferson Circuit Court entered judgment on Denham's plea, but did not specify that the victim of the robbery had died or suffered serious physical injury. Based upon this conviction, the circuit court sentenced Denham to fifteen years' imprisonment and ordered that the sentence run consecutively to a five-year sentence he received in another case, for a total of twenty years.

As part of its inmate-processing procedure, the department classified Denham as a violent offender, requiring him to serve eighty-five percent of his sentence prior to being eligible for parole. Thereafter, Denham challenged the classification by filing the instant declaration of rights action in the Franklin Circuit Court. The Franklin Circuit Court dismissed the petition pursuant to Kentucky Rules of Civil Procedure ("CR") 12.02(f) for failure state a claim upon which relief could be granted. This appeal followed.

ANALYSIS

Denham insists in this appeal that the department incorrectly classified him as a violent offender because the judgment convicting him of first-degree robbery did not comply with the requirements of KRS 439.3401 in that it failed to specifically state that his victim died or suffered death or serious physical injury. However, KRS 439.3401 plainly provides that when the underlying crime is first-degree robbery, an offender falls under the violent classification without requiring a statement as to the serious nature of the victim's injury.

A trial court should not grant a motion to dismiss under CR 12.02(f), unless "it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.] ... This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law." Brown-Forman Corp. v. Miller, 528 S.W.3d 886, 889 (Ky. 2017) (citations and quotation marks omitted). Because the decision whether to dismiss a petition under this rule involves a question of law, we review this case de novo. James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002).

Explaining the role of the judiciary in interpreting a statutory enactment, the former Court of Appeals offered the following guidance:

[I]t is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there.. . . .

Statutory law has been held to be an expression of the intention of the Legislature. To interpret a statute, the common rule is to ascertain and determine the legislative intent.

Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247, 248-49 (Ky. 1962) (citations omitted). In determining legislative intent, we look to the plain language of the statute in question. In relevant part, KRS 439.3401 provides:

(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.

The court shall designate in its judgment if the victim suffered death or serious physical injury.

KRS 439.3401(1).

Under KRS 439.3401(1)(c), a person convicted of a Class B felony can be classified as a violent offender only when the felony involves "the death of the victim or serious physical injury to a victim." While Denham correctly argues that first-degree robbery is a Class B felony, that does not end the analysis becausesubsection (1)(m) of KRS 439.3401 specifically applies to Denham's crime. KRS 439.3401(1)(m) defines "violent offender" as a person convicted of first-degree robbery. Notably, subsection (1)(m) does not contain the subsection (1)(c) requirement that the judgment contain a statement as to the severity of the victim's injury. When a court is faced with a conflict between two apparently applicable statutory provisions, the Kentucky Supreme Court instructs that, "Kentucky follows the rule of statutory construction that the more specific statute controls over the more general statute." Light v. City of Louisville, 248 S.W.3d 559, 563 (Ky. 2008). We are therefore convinced that KRS 439.3401(1)(m) must be applied to Denham's conviction.

Denham also points to the following language which appears immediately below subsection (1)(m) as relieving him from being labeled a violent offender under the statute: "[t]he court shall designate in its judgment if the victim suffered death or serious physical injury." Denham argues that this language applies only to KRS 439.3401(1)(m) and, because it was not included in the judgment in his case, the department cannot utilize this subsection of the statute to classify him as a violent offender.

We are persuaded, however, that the language which appears at the end of the enumeration of offenses resulting in a violent offender designation merely directs how a showing of death or serious physical injury must be made ifthe listed offense contains that requirement. By the use of specific language, the General Assembly expressed its intent that in cases of Class B felonies, the conviction must stem from the death or serious physical injury of...