Kenneth Lee v. Kentucky Department of Corrections

RENDERED: OCTOBER 29, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2018-SC-0403-DG
KENNETH LEE APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2017-CA-1216-MR
LYON CIRCUIT COURT NO. 16-CI-00149
KENTUCKY DEPARTMENT OF APPELLEE
CORRECTIONS
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Appellant Kenneth Lee, having been convicted of twelve counts of first-
degree robbery, qualifies as a violent offender under Kentucky Revised Statute
(KRS) 439.3401(1) and was classified as such by the Kentucky Department of
Corrections (DOC). Because the Jefferson Circuit Court did not state in its
judgment that any of Lee’s victims suffered serious physical injury or death,
Lee petitioned Lyon Circuit Court to declare his violent offender classification
unconstitutional. The Lyon Circuit Court denied the petition and the Court of
Appeals affirmed that decision. On discretionary review, we conclude Benet v.
Commonwealth, 253 S.W.3d 528 (Ky. 2008), accurately interprets the
requirements of KRS 439.3401(1) for violent offender status, overrule the
portion of Pate v. Department of Corrections, 466 S.W.3d 480 (Ky. 2015), which
is inconsistent with Benet, and affirm the Court of Appeals. Simply put, a
defendant convicted of robbery in the first degree qualifies as a violent offender
pursuant to KRS 439.3401(1) regardless of whether the victim suffered serious
physical injury or death and regardless of whether the trial court’s judgment
addresses the victim’s status. Consequently, the DOC properly classified Lee
as a violent offender.
FACTUAL AND PROCEDURAL BACKGROUND
Kenneth Lee pled guilty to twelve counts of robbery in the first degree, a
Class B felony.1 From the record before us, it appears none of Lee’s victims
suffered serious physical injury or death.2 The Jefferson Circuit Court
judgment convicting him and sentencing him to fifteen years in prison was
entered October 29, 2015. Although the judgment made no explicit reference
1 KRS 515.020 provides:
(1) A person is guilty of robbery in the first degree when, in the course of
committing theft, he uses or threatens the immediate use of physical
force upon another person with intent to accomplish the theft and
when he:
(a) Causes physical injury to any person who is not a participant in
the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument
upon any person who is not a participant in the crime.
(2) Robbery in the first degree is a Class B felony.
2 Lee’s pro se memorandum in support of his petition for a declaration of rights
conveys that the facts of his case do not involve a victim suffering serious physical
injury or death. Lee’s appellate brief, prepared by counsel, also states the victims did
not suffer serious physical injury or death. The DOC does not dispute this statement.
2
to “violent offender” status or KRS 439.3401, it did note that Lee “is not eligible
for probation or shock probation and must serve 85% of his sentence before
meeting the parole board.” These are the primary consequences of violent
offender status.
One year later, Lee, pro se, filed a KRS 418.040 petition for declaration of
rights in Lyon Circuit Court asking the court to declare the DOC’s classification
of him as a violent offender unconstitutional and seeking an order requiring the
DOC to reclassify him as a non-violent offender. Lee primarily relied on Pate,
noting its seeming inconsistency with Benet. Lee acknowledged that Benet
holds that a defendant automatically becomes a violent offender at the time of
his conviction of an offense specifically enumerated in KRS 439.3401(1),
regardless of whether the final judgment contains a designation about the
victim suffering serious physical injury or death. He emphasized, however,
that language in the then recently-decided Pate opinion suggested otherwise.
The DOC moved the Lyon Circuit Court to dismiss Lee’s petition for failure to
state a claim upon which relief can be granted. The Lyon Circuit Court granted
the DOC’s motion, citing the language of KRS 439.3401(1), which clearly
provides that one who commits first-degree robbery is a violent offender, and
Benet. The Lyon Circuit Court also denied Lee’s subsequent motion to alter,
amend or vacate the judgment.
On Lee’s appeal, the Court of Appeals affirmed the circuit court’s
dismissal, concluding in part that Lee’s reliance on Pate is misplaced. The
Court of Appeals interpreted KRS 439.3401(1) as requiring the trial court to
3
state in its judgment that the victim suffered serious physical injury or death if
such injury or death occurred but concluded such finding of death or serious
physical injury is not a prerequisite to classifying a person as a violent offender
under KRS 439.3401(1) unless otherwise specified. For example, in KRS
439.3401(1)(c) a violent offender includes a person who has been convicted of
or who pled guilty to “[a] Class B felony involving the death of the victim or
serious physical injury to a victim.” In that instance, a finding of death or
serious physical injury would be required. Lee, however, qualifies as a violent
offender under KRS 439.3401(1)(m) which simply states: “Robbery in the first
degree.”
Lee moved for discretionary review, asking this Court to clarify the
conflict between Pate and Benet. We granted discretionary review to resolve
whether the Lyon Circuit Court properly dismissed Lee’s petition under
Kentucky Rule of Civil Procedure (CR) 12.02(f) as a matter of law. The issue
before us is whether under KRS 439.3401(1) the DOC properly classified Lee as
a violent offender when the Jefferson Circuit Court judgment did not state that
any of Lee’s victims suffered death or serious physical injury.3 For the reasons
3 Lee filed a motion for summary judgment after the Lyon Circuit Court denied
the DOC’s motion to dismiss for failure to exhaust administrative remedies. The Lyon
Circuit Court entered an order establishing a deadline for the DOC’s response to the
summary judgment motion. The Lyon Circuit Court then denied Lee’s motion for
summary judgment, allowing the DOC’s untimely response, the CR 12.02(f) motion to
dismiss. Lee appealed the Lyon Circuit Court’s decision to permit the DOC to file the
belated motion to dismiss to the Court of Appeals. Lee did not seek discretionary
review of the Court of Appeals’ decision that the Lyon Circuit Court did not abuse its
discretion by not striking the DOC’s CR 12.02(f) motion to dismiss.
4
explained below, we conclude the classification is proper and thus affirm both
the Court of Appeals and Lyon Circuit Court.
ANALYSIS
Confronted with a CR 12.02(f) motion to dismiss for failure to state a
claim, the trial court must assume the truth of all facts pled in the complaint
and determine whether, given proof of those facts, the plaintiff would be
entitled to relief. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). The motion
presents “a pure question of law” and our review is de novo. Id. Statutory
construction, which is the focus of the case before us, is also a matter for de
novo review, Cumberland Valley Contractors, Inc. v. Bell Cty. Coal Corp., 238
S.W.3d 644, 647 (Ky. 2007), and accordingly, we look anew at this issue,
respectfully considering the opinions of the lower courts but without deference
to their legal conclusions.
KRS 439.3401 defines a “violent offender” for sentencing purposes and
sets the minimum time a violent offender must serve before being eligible for
parole. Originally enacted in 1986,4 KRS 439.3401(1) stated in relevant part as
4 KRS 439.3401(1) has been amended multiple times: 1998, 2002, 2006, 2007,
2013, 2018, and 2019. Its wording at enactment and upon amendment in 1998
follows. The 1998 amendment included the addition of the final sentence which is at
issue in this case.
1986 Ky. Acts ch. 358, § 1:
As used in this section, “violent offender” means any person who has
been convicted of or pled guilty to the commission of a capital offense,
Class A felony, or Class B felony involving the death of the victim, or rape
in the first degree or sodomy in the first degree of the victim, or serious
physical injury to a victim.
1998 Ky. Acts ch. 606, § 77:
5
follows when Lee was convicted in 2015:
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;
. . .; or
(m) Robbery in the first degree.
The court shall designate in its judgment if the victim suffered
death or serious physical injury.
2015 Ky. Acts ch. 66, § 19.
Lee, relying on Pate, 466 S.W.3d 480, argues that because the October
29, 2015 judgment did not make the required finding under KRS 439.3401(1)
as to any of the victims of his twelve counts of first-degree robbery suffering
serious physical injury or death, the DOC improperly classified him as a violent
offender. Lee’s classification as a violent offender pursuant to KRS 439.3401
has significant consequences because that status will require him to serve 85%
As used in this section, “violent offender” means any person who has
been convicted of or pled guilty to the commission of a capital offense,
Class A felony, or Class B felony involving the death of the victim or
serious physical injury to a victim, or rape in the first degree or sodomy
in the first degree of the victim. The court shall designate in its
judgment if the victim suffered death or serious physical injury.
6
of his sentence before becoming eligible for parole.5,6 The DOC counters that
KRS 439.3401(1) does not require a finding relative to the victim when the
offender is convicted of first-degree robbery, a crime specifically listed in
subsection (m).
Lee’s request for relief is premised entirely on language in Pate that
appears contradictory to Benet, 253 S.W.3d 528. In particular, Lee argues that
Pate, 466 S.W.3d at 489-90, requires the final judgment to designate whether
or not the victim suffered death or serious physical injury before violent
offender status can attach while Benet, 253 S.W.3d at 533, holds that
designation in the final judgment regarding the victim is unnecessary for
classification purposes, violent offender status being a function of the crime for
which the defendant was convicted not the language in the trial court’s
judgment.
This Court, in both Pate and Benet, scrutinized KRS 439.3401(1) as
amended in 2002.7 At that time the statute stated:
5 KRS 439.3401(3)(a) states: “A violent offender who has been convicted of a
capital offense or Class A felony with a sentence of a term of years or Class B felony
shall not be released on probation or parole until he has served at least eighty-five
percent (85%) of the sentence imposed.”
6 The DOC Kentucky Administrative Regulations (KAR) provide that for a
sentence of a number of years, a violent offender is eligible for parole after serving 85%
of the sentence received or 20 years, whichever is less. 501 KAR 1:030 § 3(1)(e)4
(applying to felony crimes committed on or after June 26, 2007). Non-violent offenders
are eligible for parole after serving 20% of the sentence received. 501 KAR 1:030 §
3(1)(c) (applying to felony offenses committed after December 3, 1980 and sentences
ranging from 2 to 39 years).
7 See Benet, 253 S.W.3d at 530 n.1 (The 2008 Benet opinion indicated that KRS
439.3401(1), as amended in 2002, was in effect at the time of Benet’s conviction, but
the opinion quoted the then-current version enacted in 2007 because the Court
7
As used in this section, “violent offender” means any person who
has been convicted of or pled guilty to the commission of a capital
offense, Class A felony, or Class B felony involving the death of the
victim or serious physical injury to a victim, or rape in the first
degree or sodomy in the first degree of the victim, burglary in the
first degree accompanied by the commission or attempted
commission of a felony sexual offense in KRS Chapter 510,
burglary in the first degree accompanied by the commission or
attempted commission of an assault described in KRS 508.010,
508.020, 508.032, or 508.060, burglary in the first degree
accompanied by commission or attempted commission of
kidnapping as prohibited by KRS 509.040, or robbery in the first
degree. The court shall designate in its judgment if the victim
suffered death or serious physical injury.
2002 Ky. Acts ch. 120, § 2.8
believed that the amendments that occurred after Benet’s sentencing would not
substantively change the result of the opinion.); Pate, 466 S.W.3d at 486.
8 In 2006, the General Assembly further delineated the crimes which qualify a
criminal defendant as a violent offender. With the 2006 amendment, KRS 439.3401(1)
took its present format of listing the defining crimes in a linear fashion. As revised in
2006, KRS 439.3401(1) stated:
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;
(d) The commission or attempted commission of a felony sexual offense
in KRS Chapter 510;
(e) Use of a minor in a sexual performance as described in KRS 531.310;
(f) Promoting a sexual performance by a minor as described in KRS
531.320;
(g) Unlawful transaction with a minor in the first degree as described in
subsection (1)(a) of Section 38 of this Act;
(h) Promoting prostitution in the first degree as described in KRS
529.030(1)(b);
8
In Pate, a jury found the defendant guilty of manufacturing
methamphetamine, second offense, a Class A felony. 466 S.W.3d at 483.
When Pate began serving his sentence, the DOC classified him as a non-violent
offender. Id. at 484. Four years later, in 2006, the General Assembly amended
KRS 439.3401(1) and the DOC changed Pate’s status to a violent offender. Id.
Before the 2006 amendment, at least as to Pate and some other inmates,9 the
DOC interpreted the following language – “As used in this section, ‘violent
offender’ means any person who has been convicted of or pled guilty to the
commission of a capital offense, Class A felony, or Class B felony involving the
death of the victim or serious physical injury to a victim . . . .” – to mean a
(i) Criminal abuse in the first degree as described in KRS 508.100;
(j) Burglary in the first degree accompanied by the commission or
attempted commission of an assault described in KRS 508.010,
508.020. 508.032, or 508.060;
(k) Burglary in the first degree accompanied by commission or attempted
commission of kidnapping as prohibited by KRS 509.040; or
(l) Robbery in the first degree.
The court shall designate in its judgment if the victim suffered death or
serious physical injury.
2006 Ky. Acts ch. 182, § 27.
Other amendments after 2006 have not changed fundamental content of KRS
439.3401(1), which defines a violent offender by conviction of certain crimes and
directs the trial court to designate in its judgment if the victim suffered death or
serious physical injury. In 2007, item (h) was revised, 2007 Ky. Acts ch. 19, § 11; in
2013, a new item (d) was added, 2013 Ky. Acts ch. 101, § 1; in 2018, a new item (e)
was added, 2018 Ky. Acts ch. 89, § 15 and ch. 115, § 10; and in 2019, items (d) and
(e) were revised, 2019 Ky. Acts ch. 136, § 1.
9 DOC personnel provided affidavit testimony which indicated KRS 439.3401(1)
was not applied consistently across offenders. 466 S.W.3d at 489-90.
9
violent offender includes any person convicted of a capital offense, Class A
felony, or Class B felony, as long as the victim of the crime suffered death or
serious physical injury.10 Id. at 486. After the 2006 amendment, the DOC
concluded that Pate’s Class A felony conviction standing alone was sufficient to
qualify him as a violent offender. Id. at 484. Pate’s argument that the 2006
amendment to KRS 439.3401 constituted an ex post facto violation as applied
to him was unsuccessful before the Franklin Circuit Court and the Court of
Appeals, id. at 484-85, and also before this Court, id. at 488-89.
On Pate’s appeal to this Court, we first analyzed whether KRS
439.3401(1), as amended in 2002, rendered Pate a non-violent offender
because if not, the 2006 amendment was not an unconstitutional retrospective
application. Id. at 488. In that context, we stated:
In viewing KRS 439.3401 in its entirety, this Court believes
that the General Assembly had the intent of categorizing all Class
A felonies as violent offenses, not just those wherein the victim
suffered death or serious physical injury. There is no requirement
that the Class A crime have a victim who suffers death or serious
physical injury. Only the Class B felonies require it. Those Class
B felonies include first-degree rape, first-degree sodomy, first-
degree robbery, and first-degree burglary when accompanied by a
felony sexual offense, assault, or kidnapping.
Id. at 488-89.
Lee argues that the foregoing Class B felony discussion in Pate supports
his argument that he was improperly designated a violent offender.
10 This is also the interpretation that the detective testifying during Pate’s
sentencing phase, Pate’s trial counsel, and the Commonwealth’s attorney applied. Id.
at 483, 486.
10
Emphasizing that Pate is this Court’s most recent holding on the subject, he
insists a final judgment convicting someone of a Class B felony, specifically
enumerated or not within KRS 439.3401(1), must include a designation by the
sentencing court that indicates that the victim suffered death or serious
physical injury in order for that defendant to be classified as a violent offender.
The DOC counters that the above-quoted statement from Pate regarding
Class B felonies is dicta as it was not necessary to the determination of the
issues before this Court, Pate having been convicted of a single Class A felony.
Affirming the Lyon Circuit Court in this case, the Court of Appeals agreed that
Pate’s discussion of Class B felonies is dicta and further explained that when
an offender commits any of the specific offenses enumerated in KRS
439.3401(1), that commission alone renders the defendant a violent offender,
not the inclusion of specific language in the judgment. The appellate court
noted that this was the holding of this Court in Benet, an earlier, on-point case
which Pate never addressed, much less overruled. While we cannot agree that
any part of the statutory construction discussion in Pate was dicta – the import
of the death or serious physical injury designation being central to the issue
before the Court – we agree with the Court of Appeals that the above-quoted
statement regarding Class B felonies is inconsistent with a proper construction
of KRS 439.3401 as this Court thoroughly explained in Benet.11 Accordingly
that small portion of Pate that conflicts with Benet is overruled.
11 As noted by the Court of Appeals, the quoted statement is also inconsistent
with Pate’s statement in the preceding paragraph that “KRS 439.3401 enumerated
11
In Benet, a jury found the defendant guilty of first-degree sodomy, a
Class B felony,12 and first-degree sexual abuse.13 Id. at 529. Before
sentencing, the Commonwealth filed a motion asking the trial court to make a
finding that Benet was a violent offender under KRS 439.3401, but the trial
court’s final judgment did not address Benet’s offender status. Id. at 530-31.
On appeal, Benet argued that he could not be classified as a violent
offender under KRS 439.3401 because the trial court’s final judgment did not
specifically designate him as a violent offender. Citing our agreement with
Wathal v. Harrod, 229 S.W.3d 599, 600 (Ky. App. 2007),14 this Court stated
that “a defendant automatically becomes a violent offender at the time of his or
her conviction of an offense specifically enumerated in KRS 439.3401(1)
regardless of whether the final judgment of conviction contains any such
designation,” and concluded that at least for purposes of the appeal, the trial
court’s failure to designate Benet as a violent offender in the final judgment
was of no legal significance. Benet, 253 S.W.3d at 533.
general offenses followed by more specific offenses, which if committed, rendered the
criminal a violent offender.”
12 KRS 510.070(2): “Sodomy in the first degree is a Class B felony unless the
victim is under twelve (12) years old or receives a serious physical injury in which case
it is a Class A felony.”
13 KRS 510.110(2): “Sexual abuse in the first degree is a Class D felony, unless
the victim is less than twelve (12) years old, in which case the offense shall be a Class
C felony.”
14 Wathal analyzed KRS 439.3401(1) as amended in 2002. Id.
12
 The parties here do not assert that the version of KRS 439.3401(1) in
effect in 2015 is ambiguous. Instead, they disagree as to the effect of the
statute’s plain and unambiguous final statement that “[t]he court shall
designate in its judgment if the victim suffered death or serious physical
injury” as it relates to the list of crimes in subsections (a) through (m) which
define a violent offender. Lee contends, citing Pate, that a court’s judgment
convicting a defendant of a Class B felony, whether listed specifically in KRS
439.3401(1) – as robbery in the first degree clearly is – or not, must include a
designation indicating a victim suffered death or serious physical injury in
order for the defendant to be classified as a violent offender. He insists this
interpretation is the most logical, especially considering the charge of first-
degree robbery. Specifically, he notes that an individual can be convicted of
first-degree robbery by either using or merely threatening to use physical force,
when he also “(a) Causes physical injury to any person who is not a participant
in the crime; or (b) Is armed with a deadly weapon; or (c) Uses or threatens the
immediate use of a dangerous instrument upon any person who is not a
participant in the crime.” KRS 515.020(1). Because two different individuals –
one who actually causes physical injury versus one who does not – can be
convicted of the same crime, he contends it makes sense to distinguish
between the two individuals for violent offender classification purposes.
The DOC, on the other hand, citing Benet and Fambrough v. Department
of Corrections, 184 S.W.3d 561 (Ky. App. 2006), points to the plain language of
the statute and argues that as each of the listed offenses independently make
13
the convicted defendant a “violent offender,” and only KRS 439.3401(1)(c)
depends upon whether the victim suffered death or serious physical injury, it
would be absurd to require the trial court’s judgment to make the death or
serious physical injury designation for every other crime listed in subsections
(a) through (m) because the designation is irrelevant. The DOC essentially
suggests that the last sentence of KRS 439.3401(1) should be interpreted as
“The court shall designate in its judgment if the victim suffered death or
serious physical injury only when KRS 439.3401(1)(c) is applicable.” While we
conclude Lee overstates the import of the “death or serious physical injury”
designation, we conclude the DOC’s position understates it.
When construing a statute, we first examine the language found in the
statute to discern the legislature’s intent. Stephenson v. Woodward, 182
S.W.3d 162, 169-70 (Ky. 2005) (citations omitted). Under the plain meaning
rule, when the language of a statute is clear and unambiguous, we need not
look beyond it for further indications of legislative intent. Richardson v.
Louisville/Jefferson Cty. Metro Gov’t, 260 S.W.3d 777, 779 (Ky. 2008).
Furthermore, when the statute is unambiguous, courts are not free to insert
words or add a provision even if it may be just or desirable to do so. AIK
Selective Self-Ins. Fund v. Minton, 192 S.W.3d 415, 418 (Ky. 2006) (citation
omitted). Also, “[a] legislature making no exceptions to the positive terms of a
statute is presumed to have intended to make none.” Bailey v. Reeves, 662
S.W.2d 832, 834 (Ky. 1984) (citing Commonwealth v. Boarman, 610 S.W.2d 922
(Ky. App. 1980)). However, courts may decline to follow a statute’s plain, literal
14
terms in order to avoid an absurd result. Id. An absurd result does not mean
an odd result but a result so unreasonable that the legislature could not have
intended it. See Owen v. Univ. of Kentucky, 486 S.W.3d 266, 273 (Ky. 2016).
Here, although the DOC’s absurdity argument may initially appear valid, we
find a straightforward reading of KRS 439.3401(1) does not create a result so
absurd that would justify deviation from the plain language of the statute.
The General Assembly decided that violent offenders, as defined, must
serve a greater portion of their sentence than non-violent offenders before
becoming eligible for parole. See KRS 439.3401. In conjunction with KRS
439.3401(1), the trial court’s judgment puts the DOC on notice that the violent
offender statute applies to a particular defendant. See Newcomb v.
Commonwealth, 410 S.W.3d 63, 89 n.93 (Ky. 2013); Fambrough, 184 S.W.3d at
563. The statute’s final statement, “The court shall designate in its judgment if
the victim suffered death or serious physical injury,” is not limited to
convictions for only certain of the designated violent offender crimes. Instead,
it is a simple declaratory statement that requires the judgment to include the
designation in all cases in which it applies, i.e., any case that falls under KRS
439.3401 in which a victim suffered either death or serious physical injury.
We note that even though the General Assembly has amended KRS
439.3401(1) multiple times to add and modify offenses which define a violent
offender, it has yet to amend the final judgment designation requirement.
Although the requirement may seem odd relative to the General Assembly’s
declaration that conviction of specific crimes automatically defines one as a
15
violent offender, the requirement is not so unreasonable that the legislature
could not have intended to maintain it.
Statutory interpretation principles thus lead us once again to the
interpretation announced in Benet. Although not addressed by the parties in
the instant case, in Benet, along with pronouncing agreement with Wathal, 229
S.W.3d at 600, that “a defendant automatically becomes a violent offender at
the time of his or her conviction of an offense specifically enumerated in KRS
439.3401(1) regardless of whether the final judgment of conviction contains
any such designation,” we also explained in a footnote that:
The trial court is required to designate in its judgment that a
victim suffered death or other serious physical injury. KRS
439.3401(1). Since the victim in this case did not suffer death or a
serious physical injury, the trial court was not required to make
any such designation in Benet’s final judgment.
On a closely related note, however, we disagree with Wathal’s
conclusion that a trial court is required to designate in its final
judgment that a victim either died of received a serious physical
injury “only if the crime is a Class B felony not otherwise
delineated in the statute. KRS 439.3401[(1)](c).” 229 S.W.3d at
600. Rather, we find that the trial court is required to designate in
its judgment that a victim suffered death or other serious physical
injury whenever a defendant is convicted of any of the offenses
listed in KRS 439.3401(1).
Benet, 253 S.W.3d at 533 n.19. Thus, despite one automatically becoming a
violent offender at the time of his conviction of any of the crimes listed in KRS
439.3401(1), the plain language of the statute also requires the trial court to
indicate in its judgment that a victim suffered death or serious physical injury
whenever the facts of the case support that finding. The Court of Appeals,
16
although not citing Benet, reached a similar conclusion.15 Whatever the
General Assembly’s rationale for this requirement, it unquestionably provides
notice in the judgment of additional facts relevant to the defendant’s conviction
and, significantly, is mandated by clear and unambiguous language in KRS
439.3401(1) that the courts are not free to ignore.
CONCLUSION
Lee was convicted of one of the enumerated crimes in KRS 439.3401(1),
specifically twelve counts of first-degree robbery. Upon conviction, he
automatically became a violent offender and because none of his victims
suffered serious physical injury or death, the trial court was not required to
make any such designation in Lee’s final judgment. The DOC’s classification of
Lee as a violent offender based upon his first-degree robbery convictions was
legally correct. Accordingly, the trial court properly dismissed Lee’s declaration
of rights petition and the Court of Appeals properly affirmed that decision. On
these grounds, we affirm the Court of Appeals.
Minton, C.J.; Hughes, Keller, Nickell, VanMeter, and Wright, JJ., concur.
Lambert, J., not sitting.
15 The Court of Appeals stated that under KRS 439.3401(1) “[t]he court shall
designate in its judgment if the victim suffered death or serious physical injury,” and
this “merely means that a trial court shall make note of [serious] physical injury or
death in its judgment, if such injury or death occurred.”
17
COUNSEL FOR APPELLANT:
Andrea Lynn Reed
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Allison Rene Brown
General Counsel
Department of Corrections
18