VIOLENT OFFENDER STATUS: WATHAL V. HARROD (COA 6/22/2007)

WATHAL V. HARROD
CRIMINAL:  Sentence – prison determination of violent offender status
2006-CA-001378
PUBLISHED: AFFIRMING
PANEL:  DIXON, PRESIDING;  MOORE, TAYLOR CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 6/22/2007

Circuit Court properly dismissed pro se inmate’s challenge to the Department of Corrections (DOC) designating him as a violent offender pursuant to Kentucky Revised Statutes (KRS) 439.3401. In 2002, the legislature amended KRS 439.3401 to specifically include first degree robbery as a stand-alone violent offense. When Wathal pled guilty to first degree robbery, he automatically became a violent offender under the plain meaning of the statute. Further, CA rejected Wathal’s contention that the DOC failed to follow its own administrative regulation, 501 KAR 1:030(3)(1)(b), to calculate his parole eligibility. The regulation states that 85% of the inmate’s sentence must be served when the crime is a “Class B felony where the elements of the offense or the judgment of the court demonstrate that the offense involved death or serious physical injury to the victim . . . .” In this case, the DOC regulation is in conflict with the violent offender statute. “[I]t is axiomatic that the grant of the power to make regulations does not authorize an administrative agency to adopt regulations which are contrary to legislative policy as expressed in the statutes.” Kentucky Alcoholic Beverage Control Bd. v. Anheuser-Busch, Inc., 574 S.W.2d 344, 345 (Ky. App. 1978). Accordingly, it is clear that KRS 439.3401 controls, and the DOC properly calculated Wathal’s sentence pursuant to KRS 439.3401(3).

Digested by Scott Byrd @ www.OlginandByrd.com

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