Opinion
No. 107,157.
2012-08-31
Humberto MARTINEZ, Appellant, v. KANSAS PAROLE BOARD, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. John Wesley 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. John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Humberto Martinez appeals the district court's denial of his K.S.A. 60–1501 petition seeking relief from the decision of the Kansas Parole Board (KPB) denying him parole and imposing a 3–year pass before it would reconsider him for parole. Specifically, Martinez argues that the KPB did not comply with statutory requirements, that the KPB acted arbitrarily and capriciously, and that K.S.A. 22–3717 violates the Ex Post Facto Clause of the United States Constitution. This court affirms the district court's denial of the petition because the KPB's decision was not arbitrary or capricious and K.S.A. 22–3717's application did not violate the Ex Post Facto Clause.
Facts
On December 7, 1988, Martinez pled guilty in Wyandotte County case 88CR1586 to one count of attempted aggravated assault. Martinez was sentenced to 1 to 5 years' imprisonment, but his application for probation was granted. On August 23, 1991, Martinez' probation was revoked, and he was ordered to serve his original sentence. On August 23, 1991, Martinez was sentenced in Wyandotte County case 91CR0260 to 3 to 10 years' imprisonment after he pled guilty to one count of attempted rape. The sentence was ordered to be served consecutive to his sentence in 88CR1586. Then on January 27, 1995, Martinez was sentenced in Wyandotte County case 93CR2439 to four consecutive terms of 5 to 20 years' imprisonment after being found guilty by a jury of four counts of indecent liberties with a child. This sentence was ordered to run consecutive to Martinez' sentence in 91CR0260.
Martinez came before the KPB for parole hearings on May 15, 2003; July 29, 2004; and May 24, 2007. The KPB passed Martinez for parole each time.
On May 4, 2010, the KPB considered Martinez for parole, but the hearing was “[c]ontinue[d] for [other] information.” On December 29, 2010, Martinez came before the KPB again, and the KPB decided:
“After considering all statutory factors, the decision of the Kansas Parole Board is: pass to June 2013. Recs: continue working on enhancing English skills; work on development of English as second language sufficient such that re-administration of physical measures from SOTP is possible; continue to participate in self help programs focusing on substance abuse; focus on enhancing literacy skills; remain disciplinary report free. Pass reasons: serious nature/circumstances of crime; history of criminal activities; violent nature of crime; failure on probation; objections. Extended Pass Reasons: Inmate has been sentenced for other than 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 three (3) 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; inmate has not served a sufficient amount of time in relation to proportionality; the inmate's current needs are unstable and community resources cannot provided sufficient support to meet those needs and provide for public safety; the inmate has not demonstrated the ability to internalize behavioral change necessary to reduce his risk to re-offend; the length of the pass will provide an opportunity for the inmate to have sufficient time to work on areas necessary to reduce his risk to re-offend.”
On January 27, 2011, Martinez filed a petition for writ of habeas corpus under K.S.A. 60–1501 in Leavenworth County District Court against the KPB, arguing that the KPB's parole decision was arbitrary and capricious and that applying the proportionality factors to him was a violation of his constitutional rights. Martinez was appointed counsel. The district court ordered the clerk to issue a writ.
The KPB filed an answer and motion to dismiss, arguing that the KPB complied with the applicable statutes, and its decision was not arbitrary and capricious. The KPB argued that it considered all the proper factors when deciding whether to grant Martinez parole and that its consideration of factors was not a violation of the Ex Post Facto Clause. Martinez responded to the motion to dismiss, arguing that applying K.S.A. 22–3717(h) and (j) to him would make it an ex post facto law because it gave him a significant risk of an increased punishment. Martinez later filed a memorandum of law in support of his response to the KPB's motion to dismiss. The district court denied relief, and Martinez filed a timely appeal.
Analysis
Due Process
Martinez first argues the KPB acted arbitrarily and capriciously in passing him for parole. This court's review of a K.S.A. 60–1501 petition challenging a parole denial is limited to whether the KPB complied with applicable statutes and whether its action was arbitrary and capricious. Torrence v. Kansas Parole Board, 21 Kan.App.2d 457, 458, 904 P.2d 581 (1995); see K.S.A. 22–3710. A court has no authority to substitute its discretion for the discretion of the KPB. See Swisher v. Hamilton, 12 Kan.App.2d 183, 185, 740 P.2d 95,rev. denied 242 Kan. 905 (1987).
Martinez contends that the KPB's decision to pass him for parole was arbitrary and capricious because the fifth reason given by the KPB was “objections,” which lacks any specificity, leaving Martinez to speculate about the actions he should take to improve his chances at parole.
K.S.A.2011 Supp. 22–37170(1) requires the KPB to “state in writing the reasons for not granting the parole.” This court determined in Torrence, 21 Kan.App.2d at 458–59, that denying parole based on “civilian objections” satisfied this statutory requirement.
Here, the KPB gave four reasons other than “objections” for not granting parole. The KPB complied with applicable statutes, and its decision was not arbitrary and capricious.
Martinez argues the reasons stated by the KPB for the 3–year pass were also arbitrary and capricious. K.S.A.2011 Supp. 22–3717(j)(1) states that if the KPB denies parole to an inmate such as Martinez, it must hold another parole hearing no later than 1 year after the denial unless it finds that “it is not reasonable to expect that parole would be granted” at a hearing held before then. In that case, the KPB may defer the parole hearing for up to 3 years “but any such deferral by the board shall require the board to state the basis for its findings.” K.S.A.2011 Supp. 22–3717(j)(1).
Martinez contends the KPB's decision was arbitrary and capricious because one of the reasons for the extended pass was that community resources could not provide sufficient support to meet his needs, but the KPB's recommendations to achieve parole at a later date involved greater development of his English and literary skills and participation in self-help substance abuse programs, which could easily be met by existing community resources.
Martinez' argument combines the KPB's recommendations for Martinez with its reasons for extending the pass. The KPB did not find that community resources could not support its recommendations for Martinez. The KPB stated that community resources were unable to provide sufficient support because his current needs were unstable. In other words, if Martinez' needs were more stable, it would be possible that the community resources could provide support for him. Martinez has not demonstrated that the KPB's reasons for extending his pass to 3 years were arbitrary and capricious. The district court did not err in upholding the KPB's decision. Ex Post Facto
Martinez argues that the KPB violated the Ex Post Facto Clause in relying on K.S.A.2011 Supp. 22–3717 to impose an extended pass. The constitutionality of a statute is a question of law over which an appellate court has unlimited review. State v. Cook, 286 Kan. 1098, 1113, 191 P.3d 294 (2008).
As a preliminary matter, we note that Martinez fails to allege what the statute required when he was convicted or how the previous version of the statute is different from the current version. He appears to argue that he should not be subject to the statute's provisions allowing an extended pass. In so arguing, however, Martinez fails to acknowledge that this court previously has determined that K.S.A. 22–3717(j) is procedural and thus not subject to the prohibitions of the Ex Post Facto Clause. See Knapp v. Nelson, 30 Kan.App.2d 905, 907, 50 P.3d 1063 (citing Branson v.. McKune, 27 Kan.App.2d 301, 302, 3 P.3d 572 [2000];Bookless v.. McKune, 22 Kan.App.2d 829, 926 P.2d 661,rev. denied 260 Kan. 991 [1996]; and Lamb v. Kansas Parole Board, 15 Kan.App.2d 606, 812 P.2d 761 [1991] ),rev. denied 274 Kan 1113 (2002).
Therefore, even if Martinez could show that the amendment to K.S.A.2011 Supp. 22–3717(j) that allowed the KPB to impose extended passes occurred after Martinez was convicted, Martinez has failed to show that the KPB's imposition of an extended pass violated his constitutional right not to be subjected to an ex post facto law.
Affirmed.