PERRY OLEN DILLARD v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 17, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000764-MR
PERRY OLEN DILLARD
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JAMES E. HIGGINS, JR., JUDGE
ACTION NO. 96-CR-00210
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and KNOPF, Judges.
COMBS, JUDGE.
Perry Olen Dillard (Dillard) appeals from an order
of the Christian Circuit Court dismissing his Petition for
Declaratory Judgment brought pursuant to Kentucky Revised Statute
(KRS) 418.040.
Finding no error, we affirm.
In May 1996, Dillard shot two persons, killing one and
seriously wounding the second, following a dispute at a pool
hall.
In October 1996, pursuant to a plea agreement with the
Commonwealth, Dillard pled guilty to one felony count of
manslaughter in the first degree (KRS 507.030)(Class B), one
felony count of assault in the second degree under extreme
emotional disturbance (KRS 508.020 and 508.040)(Class D), and one
felony count of possession of a handgun by a convicted felon (KRS
527.040)(Class C).
The Commonwealth recommended sentences of
fifteen (15) years for first-degree manslaughter, five (5) years
for second-degree assault under extreme emotional disturbance,
and one (1) year for possession of a handgun by a convicted felon
— with all three sentences to run concurrently for a total
sentence of fifteen (15) years.
After accepting the plea
agreement, the trial court sentenced Dillard in December 1996 to
serve a total of fifteen (15) years in prison according to the
Commonwealth’s recommendation.
In November 1997, Dillard filed a Petition for
Declaratory Judgment seeking an order that would “correct [the]
final sentence.”
He contended that the trial court improperly
failed to make written findings concerning aggravating and
mitigating circumstances for purposes of sentencing.
He also
challenged the action of the Department of Corrections in
applying KRS 439.3401 (the violent offender statute) to his
sentence, thereby making him eligible for parole only after
having served fifty percent (50%) of his sentence.
Dillard asked
the trial court to amend its final judgment and sentencing order
to reflect that he would be eligible for parole after having
served twenty percent (20%) of his sentence.
Accompanying the
petition were a motion for appointment of counsel, a motion for a
full evidentiary hearing, and a motion for findings of fact and
conclusions of law. After the Commonwealth failed to respond,
Dillard filed a motion for default judgment in January 1998.
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In
March 1998, the Commonwealth’s Attorney’s Office filed a response
to the default motion, noting that it had not received service of
the original petition for declaratory judgment and seeking
dismissal because the Department of Corrections had not been
named as a party to the action.
On March 17, 1998, the trial
court dismissed the petition on the merits without an evidentiary
hearing.
This appeal followed.
Dillard argues that under his plea agreement, he
believed that he would be eligible for parole consideration after
having served 20% of his sentence.
(See 501 KAR 1:030, setting
forth parole eligibility guidelines.)
He contends that because
of its alleged error in applying the violent offender statute
(KRS 439.3401) to his sentencing situation, the Department of
Corrections is improperly requiring him to serve 50% of his
fifteen-year sentence before he would become eligible for parole
consideration.
He maintains that the action of the Corrections
Department equates to an impermissible altering of the final
sentence of the trial court that in effect constitutes an illegal
usurpation of power in violation of the separation of powers
doctrine.
He also argues that the trial court should have made
specific findings on aggravating and mitigating circumstances.
We disagree.
A defendant has no constitutional right to parole or
early release from prison.
Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100,
2104, 60 L.Ed.2d 666 (1979).
The availability of parole is a
matter of legislative grace and is an executive rather than a
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judicial function.
Rudolph v. Corrections Cabinet of Kentucky,
Ky. App., 710 S.W.2d 235, 236 (1986).
separate and distinct matters.
Parole and probation are
While the courts have authority
to grant probation, parole concerns the exercise of discretion by
the executive branch (Department of Corrections) subject only to
certain fundamental but minimal constitutional protections; i.e.,
due process and equal protection.
App., 956 S.W.2d 222 (1997).
Mullins v. Commonwealth, Ky.
As a result, the Department of
Corrections has exclusive jurisdiction in applying the parole
eligibility statutes (including KRS 439.3401) as opposed to a
trial court.
In Riley v. Parke, Ky., 740 S.W.2d 934 (1987), the
Kentucky Supreme Court dealt with an analogous situation
involving the application of KRS 533.060(2), which prohibits
concurrent sentencing for offenses committed while on probation
or parole.
The Court in Riley held that the Department of
Corrections did not violate the separation of powers doctrine by
applying KRS 533.060(2) to a prisoner’s sentences (independently
of a trial court’s sentencing order) because “the application of
KRS 533.060(2) is essentially administrative in nature, and is
certainly properly included in the duties of the Corrections
Cabinet”.
Id. at 936.
In the case before us, Dillard was clearly subject to
treatment as a violent offender pursuant to KRS 439.3401 because
he pled guilty to manslaughter in the first degree – a Class B
felony – involving the death of the victim.
The Department of
Corrections acted correctly and within its authority in applying
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the violent offender statute to Dillard’s situation.
Therefore,
the trial court did not have jurisdiction to intrude upon the
executive function of the Department of Corrections and order it
to tailor its parole criteria to meet Dillard’s expectations.
With respect to Dillard’s second allegation as to the
failure of the trial court to make findings on the aggravating
and mitigating circumstances, we find no error since
consideration of such evidence under KRS 532.025 applies only to
cases where the defendant receives a sentence either of death or
of life without parole for 25 years.
fall within these parameters.
Dillard’s sentence did not
Bowling v. Commonwealth, Ky., 942
S.W.2d 293, 306 (specific findings on mitigating factors not
required in death penalty case), cert. denied, ___ U.S. ___, 118
S. Ct. 451, 139 L. Ed. 2d 387 (1997); Sanders v. Commonwealth,
Ky., 801 S.W.2d 665, 681 (1990)(same), cert. denied, 502 U.S.
831, 112 S. Ct. 107, 116 L. Ed. 2d 76 (1991).
We affirm the order of the Christian Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Perry Olen Dillard
Central City, Kentucky
A.B. Chandler III
Attorney General of Kentucky
Kent T. Young
Assistant Attorney General
Frankfort, Kentucky
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