KENNETH RAVENSCRAFT v. KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED: JULY 29, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001033-MR
KENNETH RAVENSCRAFT
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 04-CI-00635
v.
KENTUCKY DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Kenneth Ravenscraft, pro se, has appealed from
the May 4, 2004, order of the Kenton Circuit Court which
dismissed his petition for writ of mandamus.
Having concluded
that the trial court properly dismissed Ravenscraft’s petition,
we affirm.
Following his guilty plea to possession of a
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
controlled substance in the first degree,2 in Case No. 02-CR00119, Ravenscraft was sentenced on April 22, 2002, by the trial
court to three years in prison, probated for three years.
While
on probation for the possession conviction, Ravenscraft was
charged in Case No. 02-CR-00637-001 with burglary in the second
degree,3 a Class C felony, and entered a guilty plea to the
offense on January 9, 2003.
The trial court accepted
Ravenscraft’s plea and on March 3, 2003, found him guilty of
burglary in the second degree.
The trial court then entered a
final judgment on March 5, 2003, sentencing Ravenscraft to 61
months in prison.4
Thereafter, Ravenscraft’s probation in Case
No. 02-CR-00119 was revoked and he was remanded to the custody
of the Kentucky Department of Corrections to serve both
sentences.5
However, the final judgment in Case No. 02-CR-00637-
001 did not address Ravenscraft’s previous conviction and
sentence, and it did not state whether the sentence of 61 months
should be served concurrently or consecutively with the previous
2
KRS 218A.1415. Ravenscraft was charged with possession of a controlled
substance in the first degree, a Class D felony on or about November 21,
2001, and he entered a guilty plea to the charge in March 2002.
3
KRS 511.030.
4
The trial court gave Ravenscraft credit for 17 days spent in custody toward
the 61-month sentence.
5
The record in this case begins with Ravenscraft’s filing of his petition for
writ of mandamus. The final judgment in Case No. 02-CR-00637-001 is attached
to Ravenscraft’s memorandum in support of his petition, but this Court was
not provided with the order revoking Ravenscraft’s probation in Case No. 02CR-00119.
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three-year sentence.
The Department of Corrections ran the two
sentences consecutively.
On March 8, 2004, Ravenscraft filed in the Kenton
Circuit Court a pro se petition for writ of mandamus, pursuant
to CR6 81, requesting the trial court to order the Department of
Corrections to run his two sentences concurrently under KRS
532.110(2)7.
In his petition, Ravenscraft argued that since the
trial court’s judgment in Case No. 02-CR-00637-001 was silent
concerning whether his sentence was to run consecutively or
concurrently with the sentence in Case No. 02-CR-00119, KRS
532.110(2) mandated that the sentences be served concurrently.
Ravenscraft argued that if the trial court had intended for the
sentences to run consecutively, it would have so stated in the
final judgment, and he requested a writ of mandamus requiring
the Department of Corrections to recalculate his sentences to
run concurrently.8
On April 28, 2004, the Commonwealth filed a
6
Kentucky Rules of Civil Procedure.
7
KRS 532.110(2) states as follows:
If the court does not specify the
manner in which a sentence imposed by it
is to run, the sentence shall run
concurrently with any other sentence
which the defendant must serve unless the
sentence is required by subsection (3) of
this section or KRS 533.060 to run
consecutively.
8
Ravenscraft also argued that the judgment was final and because the
Commonwealth failed to file a motion under CR 59 for the trial court to
alter, amend, or vacate the judgment, pursuant to Commonwealth v. Marcum, 873
-3-
response to Ravenscraft’s petition and a motion to dismiss.
The
Commonwealth argued that Ravenscraft had failed to exhaust all
administrative requirements as required by KRS 454.415 before
filing his petition for writ of mandamus, and that KRS
533.060(2), not KRS 532.110(2), governed the calculation of
Ravenscraft’s prison sentences.
In an order entered on May 5,
2004, the trial court dismissed Ravenscraft’s petition.
This
appeal followed.
Ravenscraft contends that since the trial court’s
judgment in Case No. 02-CR-00637-001 failed to direct the manner
in which the sentences would be served, KRS 532.110(2) requires
his two prison sentences to be served concurrently, and that the
Department of Corrections acted improperly and without authority
when it determined his sentences would be served consecutively.
We find these arguments to be without merit.
KRS 533.060(2) provides as follows:
When a person has been convicted of a
felony and is committed to a correctional
detention facility and released on parole or
has been released by the court on probation,
shock probation, or conditional discharge,
and is convicted or enters a plea of guilty
to a felony committed while on parole,
probation, shock probation, or conditional
discharge, the person shall not be eligible
for probation, shock probation, or
conditional discharge and the period of
confinement for that felony shall not run
S.W.2d 207, 211 (Ky. 1994), the trial court had no authority to void the
judgment.
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concurrently9 with any other sentence
[emphasis added].
In Riley v. Parke,10 our Supreme Court addressed the
apparent conflict between KRS 532.110(2) and KRS 533.060(2) and
held that KRS 533.060(2) takes precedence over KRS 532.110(2)
because the intent of the Legislature in drafting KRS 533.060(2)
“was to exact a further penalty upon those who, allowed to leave
prison early, choose to violate their agreements and commit yet
more crimes,”11 e.g., by “not having their subsequent sentences
served concurrently” [emphasis omitted].12
Further, our Supreme
Court concluded that the nature of KRS 533.060(2) was
“essentially administrative” and within the scope of the
Department of Correction’s duties.13
We also note that the 2002
version of KRS 532.110(2) provides specifically that if a
defendant’s sentences are required to run consecutively under
KRS 533.060, as in this case, then it is an exception to the
rule in KRS 532.110(2).
This amendment eliminates any question
as to the conflict between the two statutes, since KRS 532.110
specifically subordinates itself to KRS 533.060(2).
9
This language is mandatory and does not allow the Department of Corrections
discretion in applying KRS 533.060(2).
10
740 S.W.2d 934 (Ky. 1987).
11
Id. at 935.
12
Id. (citing Devore v. Commonwealth, 662 S.W.2d 829, 831 (Ky. 1984)).
13
Id.
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Furthermore, pursuant to KRS 454.415(1), the trial
court was correct in dismissing Ravenscraft’s petition because
he failed to exhaust the administrative remedies available prior
to filing his petition.
KRS 454.415(1) states:
(a)
No action shall be brought by an
inmate, with respect to a prison
disciplinary proceeding or challenges
to a sentence calculation or challenges
to custody credit, until administrative
remedies as set forth in Department of
Corrections policies and procedures are
exhausted.
(b)
Administrative remedies shall be
exhausted even if the remedy the inmate
seeks is unavailable.
(c)
The inmate shall attach to any
complaint filed documents verifying
that administrative remedies have been
exhausted.
Ravenscraft’s action clearly is a challenge to a sentencing
calculation and therefore falls within the purview of KRS
454.415(1).
The version of § 17.4 of the Kentucky Corrections
Policies and Procedures in effect at the time Ravenscraft was
formally sentenced in Case No. 02-CR-00637-001, provides the
administrative remedies for an inmate claiming incorrect
sentencing calculations as follows:
A.
REVIEW REQUEST
1.
An inmate shall request, in
writing, a review or explanation
of the method of sentence
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calculation for the sentences on
which he is presently committed to
the Department.
. . .
3.
The request shall be in writing
and shall include:
a.
b.
a brief statement of the
matter to be reviewed; and
c.
B.
the subject matter for which
the review is requested;
an explanation of the
inmate’s belief on how the
calculation shall be applied
to the sentence.
INITIAL RESPONSE
1.
Upon receipt of the initial
written review or explanation from
the inmate of the method of
sentence calculation, the
applicable office . . . shall
review the inmate record prior to
giving a written response.
2.
The response shall include:
a.
b.
3.
C.
an explanation of the method
of calculation; and
any statutes applied in the
calculation.
A written response shall be issued
within five (5) working days of
the receipt of the inmate’s
request for review or explanation.
APPEAL
An inmate may appeal in writing from
the initial written review or explanation
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given to the Offender Information Services
Branch . . . . The appeal shall be filed
within ten (10) days from the date the
written review or explanation is given and
the inmate shall attach a copy of his
initial request for review and the written
review or explanation given in response with
his appeal.
D.
FINAL REVIEW
1.
Upon receipt of the appeal, the
Offender Information Services
Branch shall review the initial
request, the written response and
the inmate record.
2.
The response on appeal shall
include:
a.
b.
3.
the explanation of the method
of calculation; and
any statutes applied in the
calculation.
The response on appeal shall be
issued within fifteen (15) working
days of the receipt of the
inmate’s request for review.
Since Ravenscraft did not provide any proof that he
exhausted the administrative requirements of KRS 454.415 prior
to filing his petition for writ of mandamus, the trial court
correctly dismissed the petition.
For the foregoing reasons, the order of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Ravenscraft, Pro Se
Lexington, Kentucky
No brief filed.
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