KENNETH WILLIAMS v. COMMONWEALTH OF KENTUCKY, PAROLE BOARD
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RENDERED:
OCTOBER 6, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000237-MR
KENNETH WILLIAMS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 05-CI-00683
v.
COMMONWEALTH OF KENTUCKY,
PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
WINE, JUDGE:
Kenneth Williams appeals from an order of the
Franklin Circuit Court denying his petition for a writ of
mandamus against the Kentucky Parole Board (the Board).
He
argues that mandamus was appropriate to set aside the Board’s
revocation of his parole based upon due process violations and
the Board’s use of an allegedly flawed drug test to support its
decision.
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We agree with the circuit court that Williams
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
received all the due process to which he was entitled and that
the Board’s decision was supported by substantial evidence.
Hence, we affirm.
Williams was previously convicted on four counts of
robbery in the first degree, three counts of trafficking in a
controlled substance, and one count each of criminal mischief in
the first degree and being a persistent felony offender in the
second degree.
Williams has been paroled on four separate
occasions, most recently on May 26, 2004.
On August 10, 2004,
he was taken into custody and charged with numerous violations
of the conditions of his parole, including possession and use of
controlled substances, failure to follow instructions from his
parole officer, failure to report to his parole officer, and
providing false information to his parole officer.
Williams’ parole officer agreed to continue the
revocation proceedings in exchange for Williams entering and
completing a residency program, attending and complying with his
substance abuse treatment program, committing no further
violations of parole, admitting to the charged violations, and
waiving his right to a preliminary parole hearing.
Williams was
released to the residency program on August 16, 2004, but he was
returned to custody for additional parole violations.
Thereafter, the parole officer agreed to a second continuance
after Williams again admitted the violations, and he agreed to
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return to the residency program and commit no further
violations.
However, Williams was terminated from the program
after testing positive for using marijuana and for failing to
comply with other conditions of the program.
Williams was
returned to custody on December 12, 2004.
Following a preliminary hearing on February 3, 2005,
the presiding administrative law judge revoked Williams’ parole
based upon his previously-admitted violations, as well as the
positive drug test and his termination from the residency
program.
On March 1, 2005, the Board voted to revoke Williams’
parole based upon those findings.
The Board also voted to defer
Williams’ future parole eligibility for forty-eight months.
Thereafter, Williams filed a petition for a writ of
mandamus in the Franklin Circuit Court.
He argued that the
Board failed to fulfill its part of the agreement, and that the
November 16 urine test was flawed and was insufficient evidence
on which to base the revocation.
After considering Williams’
argument, the Board’s response, and the record before the Board,
the circuit court denied the petition.
Williams now appeals to
this Court.
Kentucky courts have repeatedly held that there is no
constitutional right to parole, but rather parole is a matter of
legislative grace or executive clemency.
Belcher v. Kentucky
Parole Board, 917 S.W.2d 584 (Ky.App. 1996); Lynch v. Wingo, 425
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S.W.2d 573 (Ky. 1968); Fowler v. Black, 364 S.W.2d 164 (Ky.
1963).
Parole is simply a privilege and the denial of such has
no constitutional implications.
S.W.2d 440, 442 (Ky. 1999).
Land v. Commonwealth, 986
Nevertheless, parole revocation
hearings must meet certain minimum requirements to satisfy due
process.
These requirements include: (a) written notice of the
claimed violations of parole; (b) disclosure to the parolee of
the evidence against him; (c) the opportunity to be heard in
person and to present witnesses and documentary evidence; (d)
the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation); (e) a “neutral and detached”
hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a
written statement by the fact-finders as to the evidence relied
on and the reasons for revoking parole.
Gagnon v. Scarpelli,
411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62, 36 L. Ed. 2d 656
(1973), citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct.
2593, 2604, 33 L. Ed. 2d 484 (1972).
As Williams correctly
notes, an extraordinary writ is the proper remedy for parole
board due process violations.
Shepherd v. Wingo, 471 S.W.2d 718
(Ky. 1971).
Williams raises two related grounds challenging the
revocation of his parole.
First, he argues that the Board
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reneged on its agreement not to revoke his parole.
And second,
he contends that the Board failed to establish a proper chain of
custody for the November 16, 2004 drug test and therefore, that
positive test could not be used as a basis for revoking his
parole.
But as the circuit court correctly noted, the record is
clear that Williams was not promised leniency or that his parole
would not be rescinded based on his previous violations.
To the
contrary, he admitted the previous violations in exchange for a
continuance of the revocation proceedings while he pursued
treatment.
Even discounting the positive drug test as flawed, the
residency program terminated Williams for other violations.
Williams’ termination from that program constituted a violation
of any agreement he may have had with his parole officer.
Thereupon, the Board was authorized to consider all of his
previously-admitted violations in making its decision to revoke
his parole.
Although the Board was justified in revoking Williams’
parole for other reasons, we also cannot find that the Board
abused its discretion by relying on the test.
Williams’
appointed counsel states in an affidavit that no chain of
custody was ever established for the drug test, but Williams
does not indicate that this issue was ever raised before the
Board.
Furthermore, while Williams states that the chain of
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custody evidence did not comply with the Corrections
Department’s policies and procedures, he fails to show that any
defect in the evidence was a sufficient ground for challenging
the evidence.
See Lucas v. Voirol, 136 S.W.3d 477 (Ky.App.
2004).
Finally, we find no violations of Williams’ due
process rights.
Williams was provided with notice of the
claimed violations of his parole and was appointed counsel.
He
was advised of the evidence against him, given an opportunity to
be heard and present evidence on his behalf, afforded the
opportunity to confront and cross-examine adverse witnesses
before a “neutral and detached” judge, and received a written
order that his parole had been revoked which specifically stated
the grounds.
Under the circumstances, we agree with the
circuit court that Williams has shown no basis for extraordinary
relief from the Board’s action.
Accordingly, the order of the Franklin Circuit Court
denying Williams’ petition for a writ of mandamus is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Kenneth Williams, pro se
Burgin, Kentucky
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