JOHNSON, JUDGE
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT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. 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.
Kentucky Revised Statutes ("KRS") 515.020, a Class B felony.
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 because subsection (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 if the 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 the victim and that the circuit court must designate that fact in the judgment of conviction itself. Because certain crimes are by their very nature sufficient to invoke violent offender classification, it is reasonable to conclude that the Legislature intended to require only a showing of conviction to satisfy KRS 439.3401 for those offenses. However, a conviction for a Class B felony may be predicated upon facts which do not involve violence (certain theft crimes, for example) and thus the additional showing of death or serious injury is required prior to classifying an offender as violent. This analysis follows the reasoning of Fambrough v. Department of Corrections, 184 S.W.3d 561 (Ky. App. 2006), which rejected a similar challenge to being classified as a violent offender after his conviction for first-degree sodomy. The rationale set out Fambrough is dispositive of Denham's argument in this appeal:
Amendments to KRS 439.3401 after the opinion in Fambrough do not affect the applicability of that case. --------
As can be seen, the violent offender statute does not apply to all Class B felonies, and the violent offender statute is not simply limited to those Class B felonies in which the victim died or suffered serious physical injuries. The statute clearly states that a violent offender is anyone who has pled guilty to or was convicted of sodomy in the first degree. KRS 439.3401(1). The
statute applies to all convictions for sodomy in the first degree; just as it applies to all convictions for any capital offense, for any Class A felony and for rape in the first degree regardless whether the victim suffered death or serious physical injury.
See Jackson v.
Taylor, 153 S.W.3d 842 (Ky. App. 2004).
Id. at 563.
First-degree robbery falls squarely within the category of offenses for which KRS 439.3401 requires nothing more than a conviction. On that basis, the Franklin Circuit Court did not err in concluding that Denham's petition failed to state a claim upon which relief could be granted.
The order of the Franklin Circuit Court dismissing Denham's petition for a declaration of rights is hereby affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Denham, pro se
Fredonia, Kentucky BRIEF FOR APPELLEE: Richard D. Lilly
Frankfort, Kentucky