Opinion
NO. 2018-CA-001311-MR
06-14-2019
TONY GLASPER APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE
BRIEFS FOR APPELLANT: Miranda J. Hellman Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00437 OPINION
AFFIRMING
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BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES. NICKELL, JUDGE: The appellant, Tony Glasper, appeals from an order of the Franklin Circuit Court granting a motion by the appellee, Kentucky Parole Board ("KPB"), for summary judgment. After careful review, we affirm.
In 2006, Glasper was convicted of sexual abuse in the first degree and sentenced to twenty years incarceration. Pursuant to the then-extant version of KRS 532.060(3), Glasper was subject to three years of postincarceration supervision ("PIS") when he was released from custody in 2017. Individuals on PIS are monitored by the Division of Probation and Parole and subject to the authority of KPB. KRS 532.043(4). Glasper entered into a supplemental agreement with the Division of Probation and Parole prohibiting him, in part, from using social networking websites or instant messaging or chat room programs accessible by minors pursuant to KRS 17.546; establishing, pursuing, or maintaining a dating, romantic, or sexual relationship without prior approval by his parole officer and treatment clinician; possessing pornography; and using a smart phone as his cell phone. Glasper was also required to register as a sex offender. KRS 17.510.
Kentucky Revised Statutes (KRS) 510.110, a Class D felony.
In 2006, the General Assembly amended KRS 532.060(3) to increase the term for postincarceration supervision from three to five years. 2006 Ky. Acts, ch. 182, § 65 (effective July 12, 2006).
Subsequent to Glasper's reincarceration, the General Assembly amended and renumbered the statute. KRS 17.546(1)(b) now reads, "[A] registrant who has committed a criminal offense against a victim who is a minor after July 14, 2018, shall not knowingly or intentionally use electronic communications for communicating with or gathering information about a person who is less than eighteen (18) years of age." 2018 Ky. Acts, ch. 42, § 1 (effective July 14, 2018).
Shortly after release, however, the Division of Probation and Parole notified KPB of five violations of conditions of supervision allegedly committed by Glasper. These alleged violations included (1) possessing a smart phone; (2) establishing an adult dating, intimate, sexual relationship without prior approval of his parole officer and treatment clinician; (3) two counts of possessing pornography; (4) two counts of using social media websites; and (5) failing to abide by the Kentucky Sex Offender Registry. KPB held a final revocation hearing and found Glasper guilty of violating the conditions of supervision, revoked his PIS, and reincarcerated him.
On May 7, 2018, Glasper filed a complaint for declaratory judgment, seeking injunctive relief and a writ of mandamus from the Franklin Circuit Court. The basis of Glasper's action was the decision of the Supreme Court of the United States in Packingham v. North Carolina, — U.S. —, 137 S.Ct. 1730, 1737, 198 L.Ed.2d 273 (2017), holding a North Carolina statute prohibiting registered sex offenders from accessing commercial social networking websites unconstitutionally infringed on the legitimate exercise of First Amendment rights of those individuals. Glasper also cited Doe v. Kentucky ex rel. Tilley, 283 F.Supp.3d 608, 616 (E.D. Ky. 2017), in which the United States District Court for the Eastern District of Kentucky permanently enjoined the Commonwealth of Kentucky from enforcing KRS 17.546 and KRS 17.510(10) and (13) "in light of the unconstitutional restrictions those statutes place on the First Amendment rights of sex offenders." KPB moved for summary judgment, which the circuit court granted, stating:
even if the Court were to find that Packingham and Tilley applied, the Parole Board considered independent and adequate grounds for revocation. There is no evidence that the Parole Board would have decided this matter differently if it had not considered [Glasper's] access to social media, and the Court therefore finds it unnecessary to remand this matter to the Parole Board for reconsideration.This appeal followed.
Our review of a circuit court's grant of summary judgment is de novo. Murrell v. Kentucky Parole Board, 531 S.W.3d 503, 505 (Ky. App. 2017) (citation omitted). We must determine whether the circuit court properly found "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. However, when summary judgment is granted on an administrative action, "[w]e review such orders to determine if the petition raises specific genuine issues of material fact sufficient to overcome the presumption of the agency's propriety." Murrell, 531 S.W.3d at 505 (citing Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997)).
Kentucky Rules of Civil Procedure. --------
Here, Glasper challenges KPB's revocation of his PIS because KPB's decision was based, in part, upon his use of social media, which he contends was unconstitutionally prohibited by the conditions of supervision. However, as referenced by the circuit court and the briefs, Glasper was found to have violated five conditions of his PIS, only one of which related to his use of social media. Although he denied guilt at the final revocation hearing, Glasper abandoned those arguments both before the circuit court and on appeal. He does not now contest KPB's determination he violated four additional conditions of supervision. As found by the circuit court, the record includes no evidence to show KPB would have reached a different conclusion if Glasper's violation relating to his use of social media were removed. Even if Packingham and Tilley applied here, KPB had sufficient grounds, separate from Glasper's use of social media, to revoke and reincarcerate. Therefore, the circuit court's grant of summary judgment was proper.
For the foregoing reasons, we affirm the order of the Franklin Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Miranda J. Hellman
Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky