Opinion
NO. 2011-CA-001949-MR
04-19-2013
JOE RAY TURNER APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE
BRIEF FOR APPELLANT: Joe Ray Turner, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: John C. Cummings Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00173
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. ACREE, CHIEF JUDGE: At issue is whether the Franklin Circuit Court erred when it refused to apply amended Kentucky Revised Statute (KRS) 439.340 retroactively to reduce Appellant Joe Ray Turner's fifteen-year parole deferment period, as issued by the Kentucky Parole Board. Finding no error, we affirm.
Judge Michelle M. Keller concurred in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
In 1998, a jury convicted Turner of murder; he was sentenced to ninety-nine years' imprisonment. On January 1, 2010, after serving twelve years of his sentence, Turner became eligible for parole. An initial parole hearing was held on January 26, 2010, pursuant to KRS 439.340(2). Following the hearing, the Parole Board denied Turner's parole request, and deferred his parole eligibility for 180 months (15 years).
See Turner v. Commonwealth, 5 S.W.3d 119, 120 (Ky. 1999).
"Deferment" in this context refers to "a decision by the [Parole Board] that an inmate shall serve a specific number of months before further parole consideration." 501 Kentucky Administrative Regulations (KAR) 1:030.
Subsequent to these events, in June 2010, the General Assembly enacted House Bill (H.B.) 1, its 2010-2012 biennial budget for the fiscal year beginning July 1, 2010, and ending June 30, 2012. H.B. 1 contained language temporarily amending KRS 439.340. That provision stated:
A budget bill may "temporarily suspend or modify the operation of existing statutes" but only during the effective period of the budget bill. Beshear v. Haydon Bridge Co., Inc., 304 S.W.3d 682, 701 (Ky. 2010); Commonwealth, ex rel. Armstrong v. Collins, 709 S.W.2d 437, 445 (Ky. 1986) (suspension or modification of statute by budget bill provision "is temporary only, expiring at the end of the biennium").
Parole Deferments: Notwithstanding KRS 439.340(3)(b), if the parole board does not grant parole, the maximum deferment or serve-out for an offender convicted of a non-violent, non-sexual Class C or Class D felony shall be 24 months. No deferment or serve-out shall exceed ten years following the offender's initial eligibility date, except for life sentences. No deferment or serve-out greater than five years shall be ordered unless by a vote of the full board.2010 Ky. Acts, Ch. 1, Pt. 1, item H.5.c.(5), p. 46.
On February 7, 2011, Turner filed a Petition for Writ of Mandamus in the Franklin Circuit Court claiming he was entitled to the parole deferment provision of H.B. 1. Turner emphasized he is serving a term of years, not a life sentence, and yet he received a fifteen-year deferment which exceeds the ten-year maximum deferment authorized by H.B. 1. The Parole Board filed no response.
We pause here to note that while Turner's Petition was pending before the circuit court, the General Assembly enacted, and Kentucky's Governor subsequently signed into law, H.B. 463 which resulted in sweeping and historic changes to Kentucky's penal code. The changes became effective June 8, 2011. H.B. 463, in relevant part, permanently amended KRS 439.340 by incorporating the restrictions on parole deferments initially established in H.B. 1. 2011 Ky. Acts ch. 2, § 32. Newly created section 14 of that statute provides:
If the parole board does not grant parole to a prisoner, the maximum deferment for a prisoner convicted of a non-violent, non-sexual Class C or Class D felony shall be twenty-four (24) months. For all other prisoners who are eligible for parole:
(a) No parole deferment greater than five (5) years shall be ordered unless approved by a majority vote of the full board; and
(b) No deferment shall exceed ten (10) years, except for life sentences.
On September 30, 2011, the circuit court denied Turner's petition, concluding the "statutory authority in effect at the time of [Turner's] parole hearing held on January 26, 2010, did not express such guidelines regarding parole deferment or review for violent offenders, nor did the statute prohibit the Board from issuing [Turner's] 15[-]year parole deferment." The circuit court further noted that general principles of statutory construction and KRS 446.080(3) prevented the circuit court from applying an amended statute retroactively absent a clear finding of legislative intent. Turner promptly appealed.
On appeal, Turner asserts the circuit court's reliance on KRS 446.080 is misplaced because that statute only applies to newly enacted laws, not amended laws. Turner also argues that H.B. 1 and, in turn, the amended version of KRS 439.340, should be applied retroactively to reduce his parole deferment from fifteen years to ten years. In support, Turner points to KRS 446.110, which provides, in pertinent part: "If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." KRS 446.110.
In response, the Parole Board contends Turner is ineligible for the relief provided by H.B. 1 because his parole was deferred on January 26, 2010, well before H.B. 1 took effect on July 1, 2010. The Parole Board further asserts the circuit court properly concluded the retroactive application of amended KRS 439.340 is prohibited by KRS 446.080(3).
KRS 446.080(3) provides "[n]o statute shall be construed to be retroactive, unless expressly so declared." It is undisputed that H.B. 1 contained no express language addressing its retroactive applicability. In situations such as this, the Kentucky Supreme Court has unequivocally settled the debate concerning whether KRS 446.110 or KRS 446.080 controls.
While KRS 446.080(3) deals with retroactive application of statutes in general, KRS 446.110 deals specifically with the procedure to be followed when a law is amended. Thus, KRS 446.110 is more specific and should prevail over KRS 446.080(3). This interpretationCommonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000) (emphasis added). Because H.B. 1 amended KRS 439.340, KRS 446.110, not KRS 446.080(3), governs.
gives effect to both statutes and prevents KRS 446.110 from being meaningless where there is no express declaration of retroactivity in a new statute containing mitigating penalties.
Our Supreme Court has interpreted KRS 446.110 such that, "[u]nless the General Assembly unmistakably intends otherwise," mitigating penalty provisions may be retroactively applied in certain circumstances. Rodgers v. Commonwealth, 285 S.W.3d 740, 751 (Ky. 2009); Rogers v. Commonwealth, 366 S.W.3d 446, 456 (Ky. 2012) (KRS 446.110 "allows for the retroactive application of penalty-mitigating changes to the law"); Phon, 17 S.W.3d at 107-08. Mitigating penalty provisions are those "provisions pertaining to punishment, such as those creating terms of imprisonment, periods of probation or parole, fines, or forfeitures." Rogers, 285 S.W.3d at 751. Such provisions may only be retroactively applied if: (1) the amendment "definitely" or "certainly" mitigates punishment; (2) the defendant specifically and timely consents to application of the amendment; and (3) the penalty-mitigating change to the law takes effect prior to the "pronouncement" of judgment. Id.; Rodgers, 285 S.W.3d at 751.
When, then, does an amendment "definitely" or "certainly" mitigate punishment? Our case law is illustrative. In Bolen v. Commonwealth, 31 S.W.3d 907 (Ky. 2000), the defendant sought to take advantage of an amended statute which barred certain violations from being used as convictions for determination of a persistent felony offender status. Id. at 909. The Court found the amendment to be definitely mitigating in that it eliminated "an eligible person's sentence from being enhanced as a persistent felony offender." Id. Likewise, in Phon, supra, our Supreme Court found that an amendment adding life without parole to Kentucky's capital sentencing scheme certainly mitigated a defendant's possible punishment. 17 S.W.3d at 107. The Court reasoned: "Life without parole is a lesser penalty than death because it allows a convicted defendant continued survival, albeit with severely limited individual liberties, rather than the termination of his life." Id. at 108.
Here, we cannot agree with Turner's assertion that amended KRS 439.340 "definitely" or "certainly" mitigates punishment. As noted by the circuit court, pre-amended KRS 439.340 placed no limitation on parole deferment periods for violent offenders. In fact, prior to being revised to align with amended KRS 439.340, 501 KAR 1:030, Kentucky's administrative regulation governing parole eligibility, specifically provided that, "[a]fter the initial review for parole, a subsequent review, during confinement, shall be at the discretion of the board[.]" 501 KAR 1:030(2)(a) (emphasis added). Thus, under the pre-amended version of KRS 439.340, parole deferment was left to the Parole Board's discretion. Now, under amended KRS 439.340, the Parole Board's discretion is limited in that parole eligibility for violent offenders, except for life sentences, may only be deferred for a maximum period of ten years.
Despite this, the decision whether to actually grant parole still rests within the Parole Board's sound discretion. See KRS 439.340(1) ("The board may release on parole persons . . . eligible for parole" (emphasis added)). Parole is a privilege; it is afforded as a matter of grace to those persons deemed eligible by the Parole Board. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999); Garland v. Commonwealth, 997 S.W.2d 487, 489 (Ky. App. 1999). Even if an inmate satisfies all minimum parole eligibility requirements, the Parole Board may still deny the applicant's parole request and defer his parole eligibility. See Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 586 (Ky. App. 1996); Garland, 997 S.W.2d at 489. Thus, amended KRS 439.340 may mitigate Turner's punishment, i.e. his ninety-nine-year prison sentence, if the Parole Board grants Turner's subsequent parole request.
To that end, while amended KRS 439.340 requires the Parole Board to re-examine and re-consider a violent offender's parole eligibility at least every ten years, it does not force the Parole Board to grant the inmate's parole request. In fact, Turner himself acknowledges that, if his parole deferment is reduced, the time he "could potentially spend in prison" is also reduced. (Appellant's Brief at 5) (emphasis added). There is nothing "certain" about the Parole Board's ultimate parole decision. At most, we can say amended KRS 439.340 is possibly mitigating. Any potential mitigation, however, is simply too attenuated to satisfy the certainty requirement. Accordingly, we cannot say amended KRS 439.340 "certainly" or "definitely" mitigates punishment.
Furthermore, we do not see how Turner could possibly claim that the penalty-mitigating change to the law took effect prior to the "pronouncement" of judgment in his case.
For the foregoing reasons, we affirm the Franklin Circuit Court's September 30, 2011 order, albeit on different grounds, denying Turner's Petition for Writ of Mandamus.
ALL CONCUR. BRIEF FOR APPELLANT: Joe Ray Turner, Pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: John C. Cummings
Justice and Public Safety Cabinet
Frankfort, Kentucky