ROBERTS (AMY), ET AL. VS. MCGOWAN (DERRICK)
Annotate this Case
Download PDF
RENDERED: AUGUST 26, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000642-MR
AMY ROBERTS; KORT THOMPSON;
LADONNA THOMPSON; AND
PHILIP PARKER
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 09-CI-01928
DERRICK MCGOWAN
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
ACREE, JUDGE: In this case, we must decide whether a vocational certificate is
equivalent to a technical education diploma, as set forth in Kentucky Revised
Statute (KRS) 197.045(1). Finding no equivalency, we reverse.
In April 1991, McGowan was sentenced to thirty years in the Kentucky State
Penitentiary (KSP) for first-degree rape and first-degree burglary. In August 1999,
while incarcerated, McGowan achieved a Carpenter’s Helper certificate and a
Roofer certificate through the Kentucky Community and Technical College
System (KCTCS). Several years later, McGowan filed a sentence calculation
request with KSP’s Offender Information Services office. McGowan asserted that
his sentence should be re-calculated and reduced because he was entitled to
Meritorious Good Time (MGT) credit1 and Educational Good Time (EGT) credit
pursuant to KRS 197.045. KSP denied McGowan’s request.
On September 26, 2009, McGowan appealed to the Kentucky Department of
Corrections’ (KDOC) Offender Information Services Branch in Frankfort,
Kentucky, as required by Kentucky Corrections Policies and Procedures (KCPP)
17.4. McGowan again asserted that he was entitled to MGT credit and EGT credit.
KDOC also denied McGowan’s request.
Subsequently, on November 13, 2009, McGowan filed a Petition for Writ of
Habeas Corpus in Franklin Circuit Court. McGowan named as respondents
various KDOC officials, including LaDonna H. Thompson, Commissioner of
KDOC, as well as the KSP’s Warden (collectively, respondents). McGowan
asserted that respondents improperly denied him MGT credit and EGT credit and,
but for respondents’ denial, he would be entitled to immediate release from
1
At the discretion of the Kentucky Department of Corrections, an inmate may receive “goodtime” credit to reduce his or her sentence based on the inmate’s good conduct. Watkins v.
Fannin, 278 S.W.3d 637, 640-41 (Ky. App. 2009); KRS 197.045(3).
-2-
custody. As proof of his entitlement to EGT credit, McGowan attached to his
petition his Carpenter’s Helper and Roofer certificates. Respondents promptly
filed a response and a motion to dismiss McGowan’s petition on the grounds that
the KDOC retains sole discretion to award MGT credit, and McGowan failed to
prove that the vocational certificates he achieved were in fact technical education
diplomas entitling him to EGT credit.
On March 22, 2010, the circuit court entered an Order granting McGowan’s
petition to the extent that he was entitled to 120 days of EGT credit and denying
the remainder of McGowan’s petition. The circuit court found that McGowan
created a rebuttable presumption that he was entitled to 120 days of EGT credit for
receiving two technical education diplomas, namely the Carpenter’s Helper
certificate and Roofer certificate. The circuit court then determined that the burden
shifted to respondents to prove that McGowan’s certificates did not qualify as
technical education diplomas, as defined by the KDOC. The KDOC failed to do
so, prompting the circuit court to find McGowan worthy of 120 days of EGT
credit. Respondents promptly appealed to this Court. On appeal, respondents
assert that the circuit court improperly ordered the KDOC to grant McGowan 120
days of EGT credit because McGowan failed to establish the Carpenter’s Helper
and Roofer certificates constitute technical education diplomas, as required by
KRS 197.045(1). We agree.
The construction and application of a statute is a question of law subject to
de novo review. Bob Hook Chevrolet Isuzu, Inc. v. Com. Transp. Cabinet, 983
-3-
S.W.2d 488, 490 (Ky. 1998); Osborne v. Com., 185 S.W.3d 645, 648 (Ky. 2006).
Consequently, we owe no deference to the circuit court’s interpretation of KRS
197.045(1). Richardson v. Rees, 283 S.W.3d 257, 263 (Ky. App. 2009).
KRS 197.045(1) states that:
[T]he [KDOC] shall provide an educational good time
credit of sixty (60) days to any prisoner who successfully
receives a graduate equivalency diploma or a high school
diploma, a two (2) or four (4) year college degree, a two
(2) year or four (4) year certification in applied sciences,
or who receives a technical education diploma as
provided and defined by the department[.]2
KRS 197.045(1) (emphasis supplied). If an inmate has satisfied the requirements
of KRS 197.045(1), the KDOC is required to grant him or her an EGT credit of
sixty days. Martin v. Chandler, 122 S.W.3d 540, 543 (Ky. 2003) (recognizing
that, provided the inmate has satisfied the program’s requirements, EGT credit is
mandatory while non-educational good time credit and MGT credit are
discretionary). “The clear intent of the statute is to award EGT credits for certain
technical achievements, secondary and higher education diplomas.” Richardson,
283 S.W.3d at 263. Thus, the issue becomes whether McGowan’s Roofer and
Carpenter’s Helper certificates constitute technical education diplomas, entitling
him to EGT credit, as provided and defined by the KDOC.
2
In 2010, the Kentucky legislature amended KRS 197.045(1) by, inter alia, increasing the
amount of EGT credit an inmate may receive from sixty (60) days to ninety (90) days, effective
July 15, 2010. 2010 Ky. Acts Ch. 107 § 3 (HB 564). “Kentucky law prohibits the amended
version of a statute from being applied retroactively to events which occurred prior to the
effective date of the amendment unless the amendment expressly provides for retroactive
application.” Commonwealth v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000). Because KRS
197.045(1) does not expressly state it should apply retroactively, no prisoner who satisfied the
statutes requirements before July 15, 2010 is entitled to more than sixty (60) days EGT credit for
obtaining a technical education diploma.
-4-
The
KDOC has promulgated KCPP 20.1 which sets forth the requirements
to obtain EGT credits.
Educational Good Time shall only be available if the
inmate earned a GED or other authorized achievement
after July 13, 1990.
1. Program completion shall be verified by the
Correctional School administrator and Educational Good
Time shall be awarded under the following guidelines.
a. A recommendation for educational good time with an
official GED transcript or a transcript documenting
degree requirements including the conferred date shall be
forwarded to the Warden and then to Central Office for
final approval.
KCPP 20.1(II)(C)(1)(a). Despite the existence of these guidelines, the KDOC fails
to precisely define the term “technical education diploma.” Consequently, we
must interpret KRS 197.045(1) to ascertain what constitutes a technical education
diploma.
In construing 197.045(1), our objective “is to give effect to the intent of the
General Assembly, and we derive that intent, if at all possible, from the plain
meaning of the language the General Assembly chose.” Bowling v. Kentucky
Dept. of Corrections, 301 S.W.3d 478, 490-91 (Ky. 2009). “When a statute is
plain and unambiguous, the language of the statute is to be given full effect as
written.” Mohammand v. Com., 202 S.W.3d 589, 590 (Ky. 2006). Accordingly,
we must afford the statute’s words their common, ordinary, and everyday
“meaning unless to do so would lead to an absurd or wholly unreasonable
conclusion.” Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984); see also
-5-
Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009) (“The plain meaning
of the statute controls.”); KRS 446.080(4).
In broad terms, a diploma is defined as a “document that evidences or
memorializes graduation from a school or society.” Black’s Law Dictionary
DIPLOMA (9th ed. 2009); see also Merriam-Webster Dictionary 327 (10th ed.
2002) (defining diploma as “a document bearing record of graduation from, or of a
degree conferred by, an educational institution”). In essence, a diploma evidences
that a person has satisfied an institution’s education requirements to justify
conferring a degree in a particular field of study.
In contrast, a certificate is a “document certifying the bearer’s status or
authorization to act in a specified way.” Black’s Law Dictionary CERTIFICATE
(9th ed. 2009); see also Merriam-Webster Dictionary 188 (10th ed. 2002). Thus, a
certificate is awarded when a person has mastered a particular skill or sub-set of
skills, perhaps as a stepping stone to satisfying a degree’s requirements, but has not
fulfilled a complete educational curriculum and achieved a degree. We believe
that, by using the phrase “technical education diploma,” the Kentucky legislature
intended for inmates to complete an entire technical educational program, as
opposed to a single vocational or technical class. Accordingly, unless the KDOC
defines otherwise, a certificate is not the equivalent of a diploma.
There is an obvious benefit to educating prisoners so as
to ensure increased job opportunities once they are
released from institutions. Incentives such as . . .
[educational] good time credit will encourage inmates to
participate in educational programs. An inmate who
-6-
arrives at the institution without a high school diploma
might subsequently earn a GED, achieve proficiency in a
vocational trade, and earn a college degree, which would
enhance his marketability in an increasingly shrinking
job market.
Richardson, 283 S.W.3d at 263.
In the case sub judice, McGowan submitted two certificates, awarded
by the KCTCS, which he claimed constitute technical education diplomas: a
Carpenter’s Helper certificate and a Roofer certificate. These documents indicate
that McGowan has mastered the skills of a carpenter’s helper and a roofer, and is
entitled to documents reflecting his achievement. However, the certificates are not
equivalent to technical education diplomas. There is no evidence that McGowan
graduated from KCTCS with a diploma or degree in a technical education field.
Instead, it appears McGowan completed courses in the areas carpentry and roofing.
While we do not discount the value of mastering independent skills in technical
and vocational fields, the common and ordinary usage of the word diploma
prohibits us from concluding that McGowan’s certificates are equivalent to
technical education diplomas, as used in KRS 197.045(1). To conclude otherwise
would thwart the underlying purpose of KRS 197.045(1) to provide inmates with a
well-rounded education to enhance their job marketability, ease their return to
society, and prevent recidivism.
The circuit court emphasized in its Order that the KDOC “is undeniably in
the superlative position to provide proof of what technical programs it deems to be
satisfactory and unsatisfactory, but it has chosen not to do so. This burden would
-7-
be incredibly minimal on the DOC; extremely helpful to the Court; and positively
correlated to attaining manifest impartiality in the Commonwealth’s Justice
System.” Circuit Court Order at 3. We agree with the circuit court that KDOC has
failed to comply with the general assembly’s mandate that it establish what
educational achievements constitute a technical education diploma justifying EGT
credit. We are cognizant that each technical education program resulting in a
diploma may demand substantively dissimilar educational requirements, classes,
and training. However, it is incumbent upon the KDOC to identify the
requirements necessary to achieve a technical education diploma in each field of
study as to ensure objectivity, neutrality, and fairness in issuing EGT credit as
required by the Kentucky legislature.
The Franklin Circuit Court’s Order granting in part McGowan’s
Petition for Writ of Habeas Corpus is reversed.
TAYLOR, CHIEF JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS BY SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: I file this dissent from the majority
opinion because of the reasoning of a case which it cites: Richardson v. Rees, 283
S.W.3d 257 (Ky. App. 2009). Richardson notes the mandatory language of KRS
197.045(1) requiring an award of good-time credit for an inmate who has earned “a
technical education diploma . . . .” Id. at 263.
As the majority opinion acknowledges, there is no clear definition of
“technical education diploma” – either in the statute or in the KDOC regulations.
-8-
McGowan earned not one but two vocational certificates under the auspices of the
undeniably accredited KCTCS, whose own website provides as follows:
Certificates (12 to 36 credit hours)
Certificates are primarily offered in a technical program
and can be earned in as little as one semester, depending on the
program.
****
The primary purpose and features of certificate
programs of study are to provide marketable,
entry-level skills. Certificates qualify students to
take external licensure, vendor-based, or skill
standards examinations in the field. If
standardized external exams are not available in
the field of study, certificates prepare students at
skill levels expected of employees in an occupation
found in the local economy.
****
Certificates may contain general education courses
emphasizing the skills identified in the SCANS
[The Secretary’s Commission on Achieving
Necessary Skills] report that are critical to entrylevel workforce success for persons prepared at the
certificate level and associated with the diploma or
associate degree program. (Bold in original; italics
added.)
McGowan fulfilled those criteria/representations. Therefore, he has satisfied
the reasoning of Richardson, which emphasized the desirability of educating
prisoners so as to enhance their marketability upon returning to society after
having “achieve[d] proficiency in a vocational trade ….” Id at 263.
I fear that the majority opinion in this case misconstrues and undermines the
beneficent public policy purpose underlying KRS 197.045(1) as highlighted by our
-9-
analysis in Richardson. Therefore, I would affirm the well reasoned opinion of the
Franklin Circuit Court awarding McGowan EGT credit.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Allison R. Brown
Frankfort, Kentucky
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
