MICHAEL WAYNE LONG APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

MICHAEL WAYNE LONG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000307–MR

Decided: March 23, 2012

BEFORE:  KELLER, STUMBO, AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Michael Wayne Long, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE:  Angela T. Dunham Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Michael Wayne Long appeals from the January 3, 2011, order of the Oldham Circuit Court that dismissed his claims against the Department of Corrections and Warden Cookie Crews.   Because we find no error with the trial court's order, we affirm.

In 1979, Long was convicted of burglary, robbery, rape, and murder, for which he was sentenced to five years, ten years, and two life sentences, respectively.   He is now serving those sentences at the Kentucky State Reformatory (“KSR”) in LaGrange, Kentucky.   On October 19, 2010, Long filed a petition with the Oldham Circuit Court against the Commonwealth of Kentucky, the Department of Corrections, the Department of Mental Health, and Warden Cookie Crews.   In his petition, Long requested a reduction of his two life sentences pursuant to the Americans with Disabilities Act and the Rehabilitation Act, which both forbid discrimination on the basis of disability.   Attached to his petition was an affidavit from Phillip Johnson, a licensed psychologist at KSR, in which Dr. Johnson opined that Long had chronically suffered from schizophrenia and was possibly suffering from the illness at the time of the commission of his crimes.   Long sought to have his sentence reduced based upon Dr. Johnson's diagnosis of schizophrenia.

On December 13, 2010, the Department of Corrections and Warden Crews filed a motion to dismiss Long's action for failure to state a claim upon which relief may be granted.   The motion was granted and Long's claims against the Department of Corrections and Warden Crews were dismissed by an order entered on January 3, 2011.   This appeal followed.

On appeal, Long argues that the trial court's dismissal of his claims denied him due process of law.   We disagree.  “[A] court should not grant [a motion to dismiss for failure to state a claim upon which relief may be granted] unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved․”  Fox v. Grayson, 317 S.W.3d 1, 7 (Ky.2010) (citation omitted).  “Accordingly, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true.”  Id. (citation omitted).   Long sought a reduction in the sentence imposed upon him by his criminal trial.   There are no set of facts which would entitle him to this relief in an original action against either the Department of Corrections or Warden Crews.   A reduction in sentence would be more properly pursued in Long's original criminal action by other procedural means, most notably a motion pursuant to CR  Double 60.02.   Therefore, we find no error with the trial court's dismissal of Long's claims against the Department of Corrections and Warden Crews.

For the foregoing reasons, the January 3, 2011, order of the Oldham Circuit Court is affirmed.

ALL CONCUR.

VANMETER, JUDGE: