Robert D. Smith v. Cookie Crews, Commissioner

Opinion

RENDERED: AUGUST 7, 2026; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-0371-MR

CAMERON OSBORNE APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01047

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; STORMEY PRIESKOP, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST II; AND HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I APPELLEES

AND

NO. 2025-CA-0372-MR

EDWARD HALE, JR. APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01012

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND ALLASANDRA CUNNINGHAM, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SUPERVISOR APPELLEES

AND

NO. 2025-CA-0373-MR

ROBERT D. SMITH APPELLANT

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APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01011

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND LORETTA B. NEW, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST II APPELLEES

AND

NO. 2025-CA-0393-MR

THOMAS DAVIDSON APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01053

4

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND MICHAEL R. AMMONS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST II APPELLEES

AND

NO. 2025-CA-0435-MR

KEVIN BOYD APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01073

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN

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OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND WINFREY MOORE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST APPELLEES

AND

NO. 2025-CA-0436-MR

CARLOS BROOKS APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01036

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND LORETTA B. NEW, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY

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AS OFFENDER INFORMATION SPECIALIST II APPELLEES

AND

NO. 2025-CA-0714-MR

AARON JACKSON APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 24-CI-01018

COOKIE CREWS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS; AMY ROBEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS WARDEN OF THE LUTHER LUCKETT CORRECTIONAL COMPLEX; HEATHER MCMANIS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I; AND JULIA WOLLUMS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS OFFENDER INFORMATION SPECIALIST I APPELLEES

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OPINION AFFIRMING

** ** ** ** **

BEFORE: ECKERLE, A. JONES, AND L. JONES, JUDGES.

JONES, L., JUDGE: The above-captioned Appellants seek to overturn a February

12, 2025 order of the Franklin Circuit Court that collectively dismissed their

consolidated declaratory actions pursuant to CR1 12.02(f). Upon review, we

affirm.

BACKGROUND

Appellants are all inmates at the Luther Luckett Correctional

Complex, each serving sentences for first-degree robbery. See KRS2 515.020. All

Appellants committed their crimes and were convicted well after July 15, 2002.

All Appellants initiated administrative actions with their correctional complex and

the Kentucky Department of Corrections, asserting that a July 15, 2024 amendment

to KRS 439.3401 “retroactively” converted their first-degree robbery convictions

into nonviolent offender convictions; and, as a consequence, they were now all

eligible for additional credit on their sentences beyond what KRS 197.045(1)(a)1.

provided, making Appellants eligible for probation without having to serve 85% of

their sentences.

1 Kentucky Rules of Civil Procedure.

2 Kentucky Revised Statutes.

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Appellants’ administrative actions were unsuccessful. Appellants

then sought declaratory relief from the Franklin Circuit Court. Their declaratory

actions were then consolidated, considering their identical claims. Following a CR

12.02(f) motion from Appellees (hereinafter referred to collectively as the

Department of Corrections), all of the Appellants’ actions were dismissed by the

circuit court. These consolidated appeals followed. We will discuss the finer

points of Appellants’ claims, the Department of Corrections’ motion to dismiss

their claims, and the circuit court’s dispositive order in our analysis below.

STANDARD OF REVIEW

When ruling upon a CR 12.02(f) motion to dismiss for failure to state

a claim, “the circuit court is not required to make any factual determination; rather,

the question is purely a matter of law. Stated another way, the court must ask if the

facts alleged in the complaint can be proved, would the plaintiff be entitled to

relief?” James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002). A CR 12.02(f)

motion is properly granted if, and only if, accepting all of plaintiff’s allegations as

true and drawing all reasonable inferences in plaintiff’s favor, the pleading party

would not be entitled to relief under any set of facts which could be proved in

support of his claim. See Shaw v. Handy, 588 S.W.3d 459, 461 (Ky. App. 2019).

Our standard for reviewing the propriety of a circuit court’s decision to grant a CR

12.02 motion is de novo. See Shaw, 588 S.W.3d at 461.

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ANALYSIS

The Appellants’ claims and the Department of Corrections’ CR 12.02

motion involved the following relevant sections of the current version of KRS

439.3401, which has been effective since July 15, 2024:3

(1) As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the:

...

(b) Commission of:

1. A felony involving the death of the victim or serious physical injury to a victim; [or]

...

10. Robbery in the first degree as described in KRS 515.020;

...

(2) The court shall designate in its judgment if:

(a) The victim suffered death or serious physical injury;

...

(4) A violent offender with a sentence of a term of years shall not be released on probation, shock probation, parole, conditional discharge, or other form of early

3 KRS 439.3401 was recently amended again in 2026. See 2026 Ky. Acts ch. 68 § 27 (eff. Jul. 15, 2026). That amendment, however, did not affect any subsections of KRS 439.3401 on review in this appeal.

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release until he or she has served at least eighty-five percent (85%) of the sentence imposed.

(5) A violent offender shall only be awarded credit on his or her sentence authorized by KRS 197.045(1)(a)1.

...

(9) The provisions of subsection (1) of this section extending the definition of “violent offender” to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.

Appellants’ claims (i.e., that KRS 439.3401 now instructs that a

person who commits first-degree robbery is not a “violent offender”) are rooted in

KRS 439.3401(1)(b)1., which provides that the meaning of “violent offender”

includes a person who commits “[a] felony involving the death of the victim or

serious physical injury to a victim[.]” Appellants focused exclusively upon that

singular meaning of “violent offender” provided in KRS 439.3401(1)(b)1.

According to Appellants’ understanding of KRS 439.3401(9), only a person who

commits a first-degree robbery that involves a victim who suffers death or serious

physical injury can qualify as a “violent offender.” Therefore, because their

respective judgments of conviction did not specifically indicate whether their

victims “suffered death or serious physical injury” per KRS 439.3401(2)(a),

Appellants argue their convictions could not have involved any such victims.

Thus, Appellants believe they should now be considered nonviolent offenders.

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To be clear, Appellants’ claims stem from a collective misreading of

KRS 439.3401. As the Department of Corrections properly noted in its CR 12.02

motion, KRS 439.3401 provides several definitions of “violent offender,” and

Appellants, in making their claims, ignored the definition most applicable to

themselves. Pursuant to KRS 439.3401(1)(b)10., a “violent offender” is also a

person who commits “[r]obbery in the first degree as described in KRS 515.020[.]”

(Emphasis added.) Accordingly, there was no need for Appellants’ respective

judgments of conviction to specify whether the victims “suffered death or serious

physical injury” because the General Assembly had designated persons who

commit first-degree robbery as “violent offenders” regardless.

Furthermore, the language of KRS 439.3401(9) – which Appellants

seized upon in support of their claims – only supports that Appellants were indeed

violent offenders within the meaning of the statute. To review, KRS 439.3401(9)

provides:

The provisions of subsection (1) of this section extending the definition of “violent offender” to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.

Relative to this provision, prior to July 15, 2002, first-degree robbery

was not specifically designated in KRS 439.3401 as a violent offense. Instead, the

version of the statute preceding that date provided:

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“[V]iolent offender” means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim, or rape in the first degree or sodomy in the first degree of the victim. The court shall designate in its judgment if the victim suffered death or serious physical injury.

See KRS 439.3401(1) (version effective from July 14, 2000, through July 14,

2002).

In other words, under that earlier version of the statute one could

theoretically have committed robbery and not have been designated a “violent

offender” if the victim did not suffer death or serious physical injury. Since July

15, 2002, however, every subsequent version of KRS 439.3401 – including the

versions in effect when each of the appellants committed their crimes – has

specifically designated persons who commit robbery in the first degree as “violent

offenders” regardless of whether the victim suffers death or serious physical

injury. The version of KRS 439.3401(1) which was effective July 15, 2002

through July 11, 2006 provided:

As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of a capital offense, Class A felony, or Class B felony involving the death of the victim or serious physical injury to a victim, or rape in the first degree or sodomy in the first degree of the victim, burglary in the first degree accompanied by the commission or attempted commission of a felony sexual offense in KRS Chapter 510, burglary in the first degree accompanied by the commission or attempted commission of an assault

13

described in KRS 508.010, 508.020, 508.032, or 508.060, burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040, or robbery in the first degree. The court shall designate in its judgment if the victim suffered death or serious physical injury.

(Emphasis added.)

Thus, KRS 439.3401(9) did not have any “retroactive” effect, much

less the “retroactive” effect Appellants have projected upon it. Rather, the sole

function and plain language of KRS 439.3401(9) simply clarifies that as of July 15,

2002, the law of Kentucky has considered persons who have committed first-

degree robbery to be “violent offenders” irrespective of whether the victim

suffered death or serious physical injury.

This, in turn, dooms Appellants’ claims that they are not “violent

offenders.” Each Appellant committed first-degree robbery after July 15, 2002.

Therefore, all Appellants are “violent offenders” within the meaning of KRS

439.3401. None of them, even assuming the truth of the factual allegations in their

complaints, could have been entitled to the relief they requested, which was

premised upon their assertions that they are not “violent offenders.” Thus, the

circuit court committed no error in granting the Department of Corrections’ CR

12.02(f) motion to dismiss Appellants’ claims.

Appellants additionally argue the circuit court abused its discretion or

otherwise erred by failing to grant various motions they filed below, i.e., motions

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for default judgment, summary judgment, and to strike the Department of

Corrections’ pleadings. In each of those motions, appellants argued – or sought

relief stemming from the same arguments – that under the current version of KRS

439.3401 they are no longer considered to be “violent offenders.” In light of our

disposition, these additional arguments lack merit and are otherwise moot.

CONCLUSION

In light of the foregoing, we AFFIRM the February 12, 2025 order of

the Franklin Circuit Court which collectively dismissed the consolidated

declaratory actions filed by Appellants pursuant to CR 12.02(f).

ALL CONCUR.

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BRIEF FOR APPELLANT CAMERON BRIEFS FOR APPELLEES: OSBORNE:

Crystal L. Thompson

Cameron Osborne, pro se Frankfort, Kentucky LaGrange, Kentucky

BRIEF FOR APPELLANT EDWARD HALE, JR.:

Edward Hale, Jr., pro se LaGrange, Kentucky

BRIEF FOR APPELLANT ROBERT D. SMITH:

Robert D. Smith, pro se LaGrange, Kentucky

BRIEF FOR APPELLANT THOMAS DAVIDSON:

Thomas Davidson, pro se LaGrange, Kentucky

BRIEF FOR APPELLANT KEVIN BOYD:

Kevin Boyd, pro se LaGrange, Kentucky

BRIEF FOR APPELLANT CARLOS BROOKS:

Carlos Brooks, pro se LaGrange, Kentucky

BRIEF FOR APPELLANT AARON JACKSON:

Aaron Jackson, pro se LaGrange, Kentucky