LEON ALCORN V. DEPARTMENT OF CORRECTIONS
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RENDERED: June 5, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0625-MR
LEON ALCORN
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 96-CI-01865
V.
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, GARDNER and KNOX, JUDGES.
KNOX, JUDGE.
Leon Alcorn, acting pro se, appeals from an order
of the Franklin Circuit Court entered on January 30, 1997,
dismissing his petition for declaratory judgment brought pursuant
to Kentucky Revised Statute (KRS) 418.040.
We affirm.
Alcorn is an inmate currently residing at the
Northpoint Training Center.
September 1976.
Alcorn was first incarcerated in
He was released on parole in June 1988, but
returned to prison in November 1988 for violating parole after
being convicted of second-degree assault, and being a firstdegree persistent felony offender.
During his period of
incarceration, Alcorn earned good-time credit, but he also had
good-time credit forfeited.
In September 1993, Alcorn was
reviewed by prison authorities for an award of meritorious good
time pursuant to KRS 197.045(3)1 and the related prison policies.
The Department of Corrections states that Alcorn was denied under
the existing Corrections Policies and Procedures (CPP) 15.3,
which became effective on June 7, 1993.
On December 27, 1996,
Alcorn filed a petition for declaratory judgment seeking an order
from the circuit court directing the prison authorities to
consider his application for meritorious good time under the
prior prison policies.
On January 27, 1997, the Department of
Corrections filed a response asserting that Alcorn would not have
been eligible for meritorious good time even under the most
recent prior policy effective as of August 6, 1990.
On January
30, 1997, the circuit court summarily denied the motion and
dismissed the action.
This appeal followed.
Alcorn contends that his September 1993 application for
meritorious good time should have been handled under the prior
prison policies in effect in 1976 and 1989, rather than the
amended policy effective as of June 1993.
1
He argues that he
KRS 197.045(3) states as follows:
An inmate may, at the discretion of the
commissioner, be allowed a deduction from a
sentence not to exceed five (5) days per
month for performing exceptionally
meritorious service or performing duties of
outstanding importance in connection with
institutional operations and programs. The
allowance shall be an addition to commutation
of time for good conduct and under the same
terms and conditions and without regard to
length of sentence.
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received meritorious good time under the prior policies during
his incarceration, and applying the revised policy constituted a
violation of the federal constitution's prohibition on ex post
facto laws.
Alcorn maintains that he was harmed because under
the older policies, he was eligible for meritorious good time if
he had no good time forfeited for a ninety (90) day period,
whereas the June 1993 policy only provided for an award of
meritorious good time on a yearly basis.
Alcorn relies on the
case of Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed.
2d 17 (1981), to support his claim that the new policy violated
the ex post facto clause.
The United States Constitution, Article I Sections 9
and 10 and the Kentucky Constitution, Section 19, prohibit ex
post facto laws.
The prohibition against ex post facto laws in
the federal constitution was included to restrain state
legislatures from "enacting arbitrary or vindictive legislation"
and to assure that legislative enactments give "fair warning of
their effect", thus allowing the public to rely on them.
See
Miller v. Florida, 482 U.S. 423, 429-30, 107 S. Ct. 2446, 245051, 96 L. Ed. 2d 351 (1987).
The prohibition applies "only to
penal statutes which disadvantage the offender affected by them."
See Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715,
2718, 111 L. Ed. 2d 30 (1990); Gilbert v. Peters, 55 F.3d 237
(7th Cir. 1995).
The settled definition of an ex post facto law
is one,
which punishes as a crime an act previously
committed, which was innocent when done;
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which makes more burdensome the punishment
for a crime, after its commission, or which
deprives one charged with crime of any
defense available according to law at the
time that the act was committed . . . .
Collins, 497 U.S. at 42, 110 S. Ct. at 2719 (quoting Beazell v.
Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 2d 216
(1925)); see also Blondell v. Commonwealth, Ky., 556 S.W.2d 682,
683 (1977).
Two critical elements must be present for a penal law
to be ex post facto:
"it must be retrospective, that is, it must
apply to events occurring before its enactment, and it must
disadvantage the offender affected by it."
U.S. at 29, 101 S. Ct. at 964.
Weaver v. Graham, 450
See also Lattimore v. Corrections
Cabinet, Ky. App., 790 S.W.2d 238, 239 (1990).
More recent
cases, however, have reiterated that the proper focus of the ex
post facto inquiry is whether the relevant change "alters the
definition of criminal conduct or increases the penalty by which
a crime is punishable," rather than an "ambiguous sort of
disadvantage" or "a prisoner's opportunity to take advantage of
provisions for early release."
California Department of
Corrections v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597,
1602 n.3, 131 L. Ed. 2d 588 (1995); Lynce v. Mathis, ___ U.S.
___, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997).
The ex post facto
issue is a matter of "degree", and there is no violation if the
change "create[d] only the most speculative and attenuated
possibility of producing the prohibited effect of increasing the
measure of punishment for covered crimes."
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Morales, 514 U.S. at
508-09, 115 S. Ct. at 1603.
While the Supreme Court declined to
articulate a dividing line for identifying ex post facto changes,
it clearly indicated that "speculative", "attenuated" and
"conjectural" effects on punishment are insufficient under any
threshold to constitute constitutional violations.
Id.
Moreover, an amendment that merely "alters the method to be
followed" under the statute, rather than affecting its
substantive standards, does not implicate the ex post facto
clause.
Id. at 508, 115 S. Ct. at 1602; Dolbert v. Florida, 432
U.S. 282, 293-94, 97 S. Ct. 2290, 2298, 53 L. Ed. 2d 344 (1977).
Finally, the party challenging the enactment has the burden of
establishing that the measure of punishment has increased in
order to prove the existence of a constitutional violation.
Morales, 514 U.S. at 510 n.6, 115 S. Ct. at 1603 n.6; Hamm v.
Latessa, 72 F.3d 947, 959 (1st Cir. 1995).
In Weaver v. Graham, supra, the Court held that a
statute unilaterally reducing the amount of statutory good-time
credits a prisoner could earn to reduce his sentence was barred
by the ex post facto prohibition.
Other cases have recognized,
however, that the ex post facto clause does not prevent prison
administrators from adopting and enforcing reasonable regulations
that are consistent with good prison administration, safety and
efficiency.
See Jones v. Murray, 962 F.2d 302, 309 (4th Cir.
1992); Ewell v. Murray, 11 F.3d 482, 485 (4th Cir. 1993).
("Reasonable prison regulations are not frozen at the time of
each inmate's conduct, but rather, they may be subject to
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reasonable amendments as necessary for good prison
administration, safety and efficiency, without implicating ex
post facto concerns.")
As the court stated in Gaston v. Taylor,
946 F.2d 340, 343 (4th Cir. 1991)(en banc):
[C]hanges in a prisoner's location, variation
of daily routine, changes in conditions of
confinement (including administrative
segregation), and denials of privileges matters which every prisoner can anticipate
are contemplated by his original sentence to
prison - are necessarily functions of prison
management that must be left to the broad
discretion of prison administrators.
See also Morales, 514 U.S. at 508-09, 115 S. Ct. at 1603 (stating
minor changes in prison regulations that might create
speculative, attenuated risk of affecting prisoner's actual term
of confinement would not normally implicate ex post facto
prohibition).
A prisoner is not entitled to have his sentence
carried out under the identical legal regime throughout his
incarceration.
See Morales, 514 U.S. 510 n.6, 115 S. Ct. at 1603
n.6 (citing Gibson v. Mississippi, 162 U.S. 565, 590, 16 S. Ct.
904, 910, 40 L. Ed. 1075 (1896)); Dominique v. Wold, 73 F.3d
1156, 1163 (1st Cir. 1996).
In 1974, the General Assembly amended KRS 197.045 to
authorize, in addition to regular good time, the award of
meritorious good time of up to five days per month of
incarceration for inmates performing exceptional meritorious
services or duties of outstanding importance in conjunction with
institutional operations and programs.
The granting of an award
of meritious good time was discretionary with the Corrections
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Commissioner. Shortly thereafter, the Bureau of Prison
promulgated a policy regulation delineating the procedural and
eligibility requirements for the award of meritorious good time.
The first element under the ex post facto analysis
involves retroactivity.
In Weaver v. Graham, the Supreme Court
held that the major inquiry for determining retroactivity is
"whether the law changes the legal consequences of acts completed
before its effective date."
450 U.S. at 31, 101 S. Ct. at 965.
The Court held that a change in the statutory good time of
prisoners altered the legal consequences of their convictions by
changing the quantum of their punishment.
S. Ct. at 966.
450 U.S. at 32-33, 101
Therefore, the statute reducing statutory good
time had a retroactive effect by applying to prisoners convicted
for acts committed prior to the effective date of the new
statute,
analysis.
and therefore, it was subject to ex post facto
The Court in Weaver suggested that laws affecting the
quantum of punishment could be associated with the sentence
received by the prisoner.
450 U.S. at 32-33, 101 S. Ct. at 966.
Applying the June 1993 policy on meritorious good time to Alcorn
constituted a retroactive application of a law for purposes of
the ex post facto prohibition.
While both Alcorn and the
Department of Corrections refer to the CPP policy of August 1990
in their briefs, the more applicable policy for ex post facto
analysis is the CPP 15.3 provision that became effective on May
14, 1987 and was in effect in November 1988 when Alcorn last
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returned to prison based on a new conviction.2
Under the 1987
policy, institutional supervisory staff initiated recommendations
to a three-member meritorious good time committee for review and
recommendation.
In order to actually obtain the meritorious good
time award, in addition to the committee, it had to be approved
by the prison superintendent, the deputy commissioner of
institutions and the commissioner of corrections.
15.3(C)(1987).
CPP
In order to be eligible, an inmate could have no
incident reports resulting in more than a warning by the prison
disciplinary committee and he could have no existing forfeited
statutory good time.
CPP 15.3(A)(5)(1987).
No inmate could be
considered for an award if he had been considered within the
previous ninety (90) days.
CPP 15.3(C)(6)(1987).
Under the policy that became effective on June 7, 1993,
the Department of Corrections altered the procedural and
eligibility requirements for meritorious good time.
For example,
all inmates generally were automatically reviewed for an award on
a yearly basis, unless they had lost non-restorable good time.
CPP 15.3(V)(1)(1993). Unlike the prior policy, inmates who had
outstanding good time loss subject to restoration remained
eligible for meritorious good time, however, the amount of the
award was subject to be decreased by five days for each month in
which a major disciplinary violation was received.
2
CPP
A review of the meritorious good time policies in force in
September 1976 and August 1990 reveals that they do not differ
from the May 1987 policy in effect in November 1988 in
substantial respects. Therefore, our analysis of the ex post
facto issue would be similar utilizing any of these policies.
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15.3(VI)(A) and (C)(1993).
The Corrections Commissioner had
discretion on the ultimate award of meritorious good time.
CPP
15.3(VII)(E)(1993).
In September 1993, Alcorn was reviewed for a potential
award of meritorious good time under the June 1993 policy and
received no award. Alcorn's main complaint involves the change in
the policy from a ninety (90) day review for eligibility to a
yearly review. He implies that under the older policy he would
have received an award of meritorious good time because he had a
ninty (90) day period without a major disciplinary violation.
Alcorn's evaluation of the prison policies is in error.
Under
the prior policy in effect in November 1988, Alcorn would have
been ineligible for meritorious good time because he had five
months of outstanding forfeited statutory good time that had not
been restored.
Alcorn's forfeited good time was not fully
restored until January 1995.
In addition, Alcorn has not established the second
element under ex post facto analysis because he has not shown
that the application of the June 1993 policy increased the
measure of punishment.
First, the award of meritorious good time
was completely discretionary with the Corrections Commissioner.
The existence of discretion in the ultimate grant of good time
does not necessarily preclude scrutiny under the ex post facto
clause.
See Raske v. Martinez, 876 F.2d 1496 (11th Cir. 1989);
Fleming v. Oregon Board of Parole, 998 F.2d 721 (9th Cir. 1993).
Nevertheless, the extent of discretion reserved by the prison
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authorities is relevant to the issue of the new policy's
speculative effects and to the requirement for fair notice of the
changes created by a new policy.
In fact, where the prison
authorities have unfettered discretion in applying both prison
policies, the analysis delineated in Morales indicates no ex post
facto violation exists because of the speculative and attenuated
nature of the possible effects of the change in policy. See Jones
v. Georgia State Board of Pardons and Paroles, 59 F.3d. 1145
(11th Cir. 1995).
In the instant case, the provisions in both the May
1987 and June 1993 meritorious good time policies required a
recommendation and approval by several prison officials including
the Corrections Commissioner.
While the completion of several
requirements permitted inmates to be considered for meritorious
good time, the prison officials apparently had unfettered
discretion on whether to approve an award.
Second, the June 1993
policy enlarged the eligibility standards by allowing inmates
with some forfeited statutory good time to be considered for
meritorious good time.
For instance, Alcorn received a
meritorious good time award in September 1994 despite having
outstanding forfeited statutory good time.
Alcorn's assertion
that he would have received meritorious good time under the old
policy that he did not receive under the new policy is erroneous
given the requirement in the old policy that all previously
forfeited statutory good time be fully restored before an inmate
could be eligible for an award.
Third, the change in the review
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to a yearly period, rather than a ninety (90) day period appears
to be more procedural than substantive.
Alcorn has not
demonstrated that the actual amount of meritorious good time
available was less under the new procedure.
As a result, Alcorn
has not satisfied his burden of establishing that the measure of
punishment had changed sufficiently to raise the possible
existence of an ex post facto violation.
For the foregoing reasons, we affirm the order of the
Franklin Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT - PRO SE:
BRIEF FOR APPELLEE:
Leon Alcorn
Burgin, Kentucky
Boyce A. Crocker
Department of Corrections
Frankfort, Kentucky
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