RENDERED: SEPTEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000215-MR
JASON R. BREWER APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 18-CI-00781
KATHY LITTERAL
AND JAMES ERWIN APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Jason R. Brewer, pro se, brings this appeal from a January 15,
2019, Order dismissing his petition for declaration of rights for failure to state a
claim upon which relief could be granted per Kentucky Rules of Civil Procedure
(CR) 12.02(f). We affirm.
On December 18, 2007, Brewer was convicted of kidnapping, first-
degree burglary, first-degree robbery, second-degree criminal possession of a
forged instrument, second-degree escape, and first-degree possession of a
controlled substance. Brewer was sentenced to a total of twenty-years’
imprisonment.
Thereafter, on November 5, 2018, Brewer filed a petition for
declaration of rights and argued that the violent offender statute (Kentucky Revised
Statutes (KRS) 439.3401) conflicted with KRS 197.045(1)(b)1, Kentucky
Corrections Policies and Procedures (CPP) 15.2, CPP 15.3 and CPP 15.5. Because
of such conflict, Brewer maintained that KRS 439.3401 was unconstitutional.
The Commonwealth filed a motion to dismiss under CR 12.02(f). The
Commonwealth argued that KRS 439.3401 was not in conflict with KRS
197.045(1)(b)1, CPP 15.2, CPP 15.3, or CPP 15.5. The Commonwealth asserted
that Brewer failed to state a claim upon which relief could be granted and sought
dismissal of the petition.
By Order entered January 15, 2019, the circuit court determined that
KRS 439.3401 did not conflict with KRS 197.045(1)(b)1, CPP 15.2, CPP 15.3, or
CPP 15.5. Therefore, the court granted the motion to dismiss and dismissed the
petition. This appeal follows.
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Brewer contends that the circuit court erroneously dismissed his
petition for declaration of rights. Brewer maintains that he is classified as a violent
offender due to his convictions and that he is improperly “subject to a greater
penalty imposed by the Adjustment Officer for a disciplinary rule infraction” than
a nonviolent offender. Brewer’s Brief at 6. To explain this different treatment,
Brewer particularly argues:
[Brewer] cannot receive any forfeited good time
back that was forfeited due to a conviction of a major
disciplinary rule infraction. This is all due to the fact that
[Brewer] is classified as a violent offender, and that
being the only sentence [Brewer] received. If [Brewer]
had an eighty-five percent sentence and a twenty percent
sentence, the prisoner would be able to receive his
forfeited good time back that was forfeited for a major
disciplinary infraction.
[Brewer] is asserting that the Violent Offender
Statute KRS § 439.3401, KRS § 197.045(1)(b)(1), Credit
on sentence for good behavior Department of Corrections
Policy and Procedure 15.2, 15.3, and 15.5, are clearly in
conflict with one another.
Brewer’s Brief at 2.
A motion to dismiss under CR 12.02(f) is proper where “the pleading
party would not be entitled to relief under any set of facts which could be proved in
support of his claim.” Pari-Mutuel Clerks’ Union of Ky. v. Ky. Jockey Club, 551
S.W.2d 801, 803 (Ky. 1977) (citation omitted). When ruling upon a CR 12.02
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motion to dismiss, the pleadings are to be construed in a light most favorable to the
plaintiff. Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012).
In its January 15, 2019, Order, the circuit court set forth the following
analysis of Brewer’s claim that KRS 439.3401 conflicted with KRS
197.045(1)(b)1, CPP 15.2, CPP 15.3, and CPP 15.5:
[T]he Court does not find a conflict between KRS
439.3401 and KRS 197.045, nor does the Court find a
conflict between KRS 439.3401 and CPPs 15.2, 15.3, and
15.5. KRS 439.3401(4) clearly states that[:]
“[a] violent offender shall not be awarded
any credit on his sentence authorized by
KRS 197.045(1)(b). 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.[”]
KRS § 439.3401(4). KRS 197.045(1)(b)(l) states an
inmate[:]
[m]ay receive a credit on his or her sentence
for good behavior in an amount not
exceeding ten (10) days for each month
served, to be determined by the department
from the conduct of the prisoner.
KRS § 197.045(1)(b)(l). Respondents first contend that
the use of “may” in the statute gives the Department of
Corrections discretion in issuing such discretionary
credit. The Court agrees. However, even if Petitioner, as
a violent offender, received such credit, pursuant to KRS
439.3401(4), the credit applied cannot reduce Petitioner’s
sentence to less than eighty-five percent (85%). Thus,
there is no conflict because the statutes work in unison.
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Petitioner’s next arguments [sic] centers on a variety
of CPPs. First, CPP 15.2 addresses rule violations and
penalties that are applied across the board to all
prisoners. The Court does not find conflict between CPP
15.2 and KRS 439.3401. Second, CPP 15.3 states “[a]
violent offender may receive meritorious good time to
the extent authorized by KRS 439.3401(4).” (CPP 15.3,
II, D). Again, the Court finds that this policy of the
Department of Corrections, 15.3, works in harmony with
KRS 439.3401 and KRS 197.045(1)(b)(l). Finally,
Petitioner believes CPP 15.5, which addresses
restorations of forfeited good time, conflicts with KRS
439.3401. The Court disagrees. CPP 15.5 states, in
relevant part, “[g]ood time loss resulting from any
Category III through Category VI rule violation, as
described in CPP 15.2, may be restored.” (CPP 15.5, II,
A). Moreover, CPP 15.5 specifies that “[m]eritorious
good time that was forfeited shall not be subject to
restoration.” (Id at II, C). After close reading of KRS
439.3401, KRS 197.045, CPP 15.2, 15.3, and 15.5, the
Court finds that no conflict exists between the statutes
and the Department of Corrections policies and
procedures. Petitioner is correctly classified as a violent
offender; therefore, KRS 439.3401(4) is clear that he
cannot receive credit to reduce his sentence to less than
eighty-five percent (85%). Further, the use of “may” in
KRS 197.045(1)(b) makes application of the credit
discretionary. CPP 15.5, II, A, also states that good time
lost as a result of a Category III through Category VI
violation may be restored, again, giving discretion to the
Department of Corrections through the use of “may.”
The Court finds no conflict in the statutes pled by
Petitioner. . . .
January 15, 2019, Order at 2-4.
We agree with the thorough analysis by the circuit court. There is
simply no conflict between KRS 439.3401 and KRS 197.045(1)(b)1, CPP 15.2,
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CPP 15.3, and CPP 15.5. Consequently, we believe the circuit court properly
dismissed the petition for declaration of rights under CR 12.02(f).
For the foregoing reasons, the Order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Jason R. Brewer, Pro Se Allison R. Brown
West Liberty, Kentucky Department of Corrections
Frankfort, Kentucky
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