Opinion
No. 108,264.
2012-12-21
Charles JONES, Appellant, v. KANSAS PAROLE BOARD, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. Michael J. Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Michael J. Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
When an inmate who was convicted before the Kansas Sentencing Guidelines Act (KSGA) went into effect is considered for parole, the Kansas Parole Board (KPB) is required to consider the proportionality of the time the inmate has served to the sentence the inmate would have received had he or she been convicted under the Kansas sentencing guidelines. K.SA.2010 Supp. 22–3717(h). Charles Jones argues that by not granting him parole or converting his sentence to a guidelines sentence, the KPB denied him equal protection of the laws under the United States Constitution. Because we find that Jones has failed to establish that the parole eligibility provisions of K.S.A.2010 Supp. 22–3717(h) violate the Equal Protection Clause, we affirm the district court's order denying his habeas corpus petition under K.S.A. 60–1501.
Factual and Procedural History
Jones is currently in the custody of the Kansas Secretary of Corrections at the Leavenworth Correctional Facility, where he is serving two concurrent sentences of 15 years to life. Those sentences resulted from Jones' convictions upon his guilty pleas to a rape that occurred in 1981 and a second-degree murder that occurred in 1982.
In 2011, the KPB considered Jones for parole but decided to pass to May 2016 for numerous reasons, stating:
“After considering all statutory factors, the decision of the Kansas Parole Board is: pass to May 2016. Recs: successfully engage in a more contemporary protocol for sex offenders. Pass Reasons: serious nature/circumstances of crime; history of criminal activities; denies responsibility; objections. Extended Pass Reasons: Inmate has been sentenced for a class A or B felony, or an off-grid felony, and the Board makes a special finding that a subsequent parole hearing should be deferred for five (5) years, because it is not reasonable to expect that parole would be granted at a hearing if held before then for the following reasons: inmate does not have a parole plan to meet his needs or to provide for public safety; the community has been exceedingly opposed to the inmate's release; inmate has not served a sufficient amount of time in relation to the offenses committed; inmate has not sewed a sufficient amount of time in relation to proportionality based on conduct in commission of offenses; the inmate's crime resulted in multiple victims and caused lasting impact on those victims; the inmate continues to demonstrate high risk despite programmatic interventions to mitigate risk; the inmate has not demonstrated behavioral insights necessary to decrease his risk to re-offend.” (Emphasis added).
Jones petitioned the district court to find the KPB's decision erroneous on various grounds. Although he filed his petition as a “Petition for Writ of Quo Warranto,” the Shawnee County District Court found that quo warranto was not appropriate and that it would liberally construe Jones' pro se pleading to be a habeas corpus action under K.S.A. 60–1501, which it deemed to be the appropriate remedy to challenge the denial of parole. The Shawnee County District Court then transferred the matter to Leavenworth County because Jones was detained at the Lansing Correctional Facility. After reviewing the various briefs, the Leavenworth County District Court entered judgment for the KPB. This is Jones' appeal from that decision.
Analysis
First, we note that Jones does not appeal the designation of his case as a habeas corpus action under K.S.A. 60–1501. In addition, though Jones raised various challenges to the KPB's decision below, the only issue he raises in this appeal is his claim that the KPB's decision to deny him parole violated his right to equal protection under the law. He has, therefore, waived his other challenges. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P .3d 676 (2011) (holding that issue not briefed by appellant is deemed waived and abandoned). Standard of review
This court has unlimited review over the legal question of whether a statute violates equal protection. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007).
“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution demands that ‘[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.’ “ 284 Kan. at 372. It requires that similarly situated individuals should be treated alike. However, it “does not require that all persons receive identical treatment, but only that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” 284 Kan. at 372. Jones has failed to establish that he was denied the equal protection of the laws.
Jones was convicted and sentenced prior to the adoption of the KSGA in 1993. Under the newly adopted KSGA scheme, persons who had been previously convicted of crimes that would be classified as presumptive nonprison sanctions under the guidelines were entitled to have their preguidelines indeterminate sentences modified to a guidelines sentence. See K.S.A.1993 Supp. 2l–4724(b)(1). Because of the serious nature of Jones' offenses, he was not eligible for the conversion of his sentences to guidelines sentences.
In Chiles v. State, 254 Kan. 888, 901, 869 P.2d 707,cert. denied513 U.S. 850 (1994), our Supreme Court found that the fact that prisoners convicted of less serious offenses were entitled to a retroactive sentence modification under the statute and those convicted of more serious offenses were not does not violate the Equal Protection Clause because the disparate treatment of inmates based on the seriousness of their crimes is rationally related to the legitimate objective of reducing prison population while maintaining public safety.
On the other hand, the statute upon which Jones relies here, K.S.A.2010 Supp. 22–3717, deals exclusively with parole eligibility. In considering whether to grant parole to an inmate, the statute requires that the KPB weigh several factors, one of which is the “proportionality of the time the inmate has served to the sentence a person would receive under the Kansas sentencing guidelines for the conduct that resulted in the inmate's incarceration.” K.S.A, 2010 Supp. 22–3717(h).
Jones concedes he was ineligible to have his indeterminate sentences converted to guidelines sentences under K.S.A. 21–4724(b)(1). Further, Jones acknowledges the Kansas Supreme Court's rejection of an equal protection challenge to the disparate treatment of serious offenders and less serious offenders under K.S.A. 21–4724(b)(1) in Chiles. He asks us to find, however, that the analysis of the equal protection issue in Chiles is no longer good law. More specifically, Jones asks us to make a quantum leap and find that the parole eligibility statute, specifically, K.S .A.2010 Supp. 22–3717(h), requires that he be released on parole or have his sentence converted to a guidelines sentence. In support, Jones contends that this statute, which was adopted post- Chiles, removes the legitimate purpose for the distinction that the Supreme Court relied on in Chiles—i.e., reducing prison population while maintaining public safety—because it requires consideration of proportionality for all inmates, including serious offenders. See L.2008, ch. 116, sec. 1. Stated another way, Jones contends there is no longer a rational basis for disparate treatment of serious offenders and less serious offenders under K.S.A. 21–4724(b)(1) because the KPB must now consider proportionality when making all its parole decisions under K.S.A.2010 Supp. 22–3717(h). Therefore, according to Jones, all preguidelines offenders are entitled to retroactive sentence conversion.
We find that Jones' argument lacks merit. K.S.A.2010 Supp. 22–3717(h) is part of the act governing the procedures for releasing inmates from prison; it governed the KPB's responsibilities in deciding whether to grant Jones parole. The statute does not require that proportionality trump all other factors, nor does it require that KPB grant parole when an offender has served a proportionate sentence. As noted by the district court, “there is no right to [sentence] conversion under K.S.A. 22–3717.”
On the other hand, K.S.A. 21–4724 is part of the sentencing guidelines; it defines how the KSGA is to be applied to offenders who committed crimes before its enactment on July 1, 1993, including when and how such offenders' sentences are to be converted to guidelines sentences. The Department of Corrections, district attorney, and sentencing court are involved with that conversion process, not the KPB. Simply because the legislature has asked the Parole Board to consider proportionality as one factor, along with the seriousness of the crime and many other factors, does not undercut the holding or rationale of Chiles. Moreover, Jones does not present any evidence that he was treated differently than other similarly situated offenders, the key requirement of any equal protection claim. Accordingly, Jones has failed to establish that by considering the factors it was required to consider under K.S.A.2010 Supp. 22–3717(h), the KPB denied him the equal protection of the laws.
Affirmed.