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Court of Appeals of Kentucky.


NO. 2009–CA–002158–MR

Decided: March 09, 2012

BEFORE:  CLAYTON AND COMBS, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Angela E. Cordery Frankfort, Kentucky BRIEF FOR APPELLEE:  Marcus Friar, pro se Central City, Kentucky

The Department of Corrections appeals the determination of the Elliot Circuit Court holding that Marcus Friar was exempt from being classified as a violent offender.   Upon review, we affirm.

Marcus Friar was a juvenile offender when he was convicted in the McCracken Circuit Court of first degree rape and resisting arrest.   He was sentenced to serve fifteen years, but because he was still a juvenile, was remanded to the care and custody of the department of juvenile justice.   After he turned eighteen years of age, he appeared before the trial court on August 16, 2004 for re-sentencing as an adult pursuant to Kentucky Revised Statutes (KRS) 640.030.

Friar was given credit for 1,503 days served as a juvenile, and the remainder of his sentence was probated for a period of 4 years.   On October 10, 2006, he returned to the trial court after testing positive on a drug test.   He admitted the use of illegal drugs and waived any hearing considering the revocation of his probation.

Friar was then sentenced to serve the remainder of the original fifteen-year sentence.   The department of corrections incarcerated him in an adult prison and classified him as a violent offender pursuant to KRS 439.3401.   That classification requires service of 85 percent of any sentence before a prisoner may be considered for parole instead of the less punitive 20 percent parole eligibility for non-violent offenders.  501 Kentucky Administrative Regulation 1:030.

Friar then filed a petition for a writ of mandamus seeking an order prohibiting the department of corrections from classifying him as a violent offender.   The trial court granted that request and entered the order sought.   The department of corrections then filed this appeal.

We first examined the issue of how to classify a juvenile offender who has reached adulthood in Mullins v. Commonwealth, 956 S.W.2d 222 (Ky.App.1997).   In that case, we held that juvenile offenders who attained the age of majority are not exempt from the provisions of the violent offender statute, KRS 439.3401.   That question was later examined by the Supreme Court which reached a different result.   In Commonwealth v. Merriman, 265 S.W.3d 196 (Ky.2008), the Kentucky Supreme Court held “the Violent Offender Statute cannot be read to apply to youthful offenders.”  Id. at 201.

The department of corrections first argues that a “youthful offender, who is convicted of or pleads guilty to a felony offense in Circuit Court, shall be subject to the same type of sentencing procedures and duration of sentence” as an adult.  KRS 640.030.   That argument must fail because being eligible for parole or even being placed on parole does not lessen the prisoner's sentence in any manner.   Friar would still be subject to a sentence of 15 years.

Next, the department of corrections argues that Merriman does not apply to questions involving parole because the facts of that case involved eligibility for probation and not parole.   The clear language of the Supreme Court negates that contention.   The Court did not limit its holding to situations involving probation only but painted with a broad stroke and held the Violent Offender Statute, KRS 439.3401, had no place in any sentencing scheme involving juvenile offenders.   We are “compelled to follow precedent established by the decisions of the Supreme Court.”  Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky.1986).

We therefore affirm the decision of the Elliot Circuit Court granting the requested petition for a writ of mandamus prohibiting the department of corrections from classifying Friar as a violent offender.