MARK CONNOLLY v. KENTUCKY STATE PAROLE BOARD
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RENDERED: November 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001550-MR
MARK CONNOLLY
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 99-CI-00336
v.
KENTUCKY STATE PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Mark Connolly, pro se, appeals from an order of
the Franklin Circuit Court entered on June 2, 1999, that denied
his petition for a writ of mandamus seeking an order requiring
the Parole Board to reinstate his parole status.
Having
concluded that the trial court properly denied Connolly relief,
we affirm.
In June 1995, Connolly was granted parole on an
unspecified sentence involving 44 convictions for complicity to
criminal possession of a forged instrument in the second degree,1
a conviction for theft by unlawful taking over $100,2 and a
conviction for custodial interference.3
Based on some
conversations between Connolly and his parole officer, on
November 6, 1996, Connolly signed a three-page Treatment Contract
that delineated the requirements for participation in a sexual
offender treatment program.
The contract specifically stated
that “failure to comply with any of these requirements can result
in your termination from treatment.” Connolly’s parole officer
submitted a request to the Parole Board seeking imposition of
this new, special condition of parole requiring sexual offender
treatment.
On November 24, 1997, the Parole Board sent a letter
to the corresponding probation and parole office that was
forwarded to Connolly’s supervising parole officer granting a
modification in Connolly’s conditions of parole.4
The letter
stated the condition to be added to the stipulations on the
conditions of parole form as follows: “‘Must attend and
successfully complete Sex Offender Treatment Program and follow
all aftercare recommendations.’”5
1
Kentucky Revised Statutes (KRS) 516.060 and KRS
502.020(complicity).
2
KRS 514.030.
3
KRS 509.070.
4
Between the time of the request for a new, special
condition and the granting of that request by the Parole Board,
supervision of Connolly had been transferred to a different
parole officer.
5
The record on appeal does not contain the actual parole
conditions document.
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After the addition of this new condition was
communicated to Connolly, he enrolled in the Kentucky Sex
Offender Treatment Program (SOTP) provided through an office in
Lexington.
However, in March 1998, personnel with the SOTP
notified Connolly’s parole officer that he was failing to comply
with several requirements of the program.
Connolly was advised
by his parole officer and counselors at the SOTP that he needed
to improve his conduct to continue in the program.
On May 14,
1998, Connolly was notified by letter that he had been terminated
from the SOTP effective May 18, 1998, on the following four
grounds: (1) violating provisions in the treatment contract
(specifically pertaining to partner support and not improving
unsatisfactory ratings on the progress report); (2) failing to
pass treatment tasks as directed; (3) unsatisfactory
participation in treatment; and (4) unsatisfactory acceptance of
responsibility for sexually abusive behaviors.
On June 2, 1998, Connolly’s parole officer gave
Connolly notice of a preliminary parole revocation hearing based
on his termination from the SOTP.
On June 8, 1998, Connolly
contacted a private psychological professional, who was
certified by the state to provide sex offender evaluation and
treatment, about enrolling in a sex offender treatment and
counseling program.
After Connolly voluntarily waived representation by an
attorney, a preliminary hearing was conducted before an
Administrative Law Judge (ALJ) on June 9, 1998.
Witnesses at the
preliminary hearing included Connolly, his parole officer, and
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the SOTP officer that supervised Connolly’s participation in the
program.
The SOTP officer testified to Connolly’s unsatisfactory
performance of the requirements of the program.
Connolly
testified that he had experienced several problems that caused
him to miss counseling sessions including medical problems, child
care responsibilities, and transportation difficulties.
He also
stated that he was attempting to establish a treatment program
with a private counselor that his parole officer had recommended.
The parole officer denied that he had referred Connolly to the
private counselor as a substitute for the SOTP.
The parole
officer testified that he discussed the mandatory nature of the
additional special condition for participation in the SOTP with
Connolly and gave him a copy of the November 24, 1997, letter
setting out the terms of the special condition.
Connolly
admitted having received a copy of the Parole Board’s November
1997, letter and the May 1998, SOTP termination letter.
The SOTP
officer stated that prior to the hearing, Connolly had not
mentioned his medical problems, child care responsibilities or
transportation problems as reasons for his lack of participation
in the programs.
At the conclusion of the hearing, the ALJ found
probable cause that Connolly had violated the conditions of his
parole and referred the matter to the Parole Board.6
Following a
final revocation hearing, the Parole Board revoked Connolly’s
parole because of his termination from the SOTP based on the
evidence presented at the preliminary revocation hearing.
6
See 501 KAR 1:040(1)(6)(2000).
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On March 29, 1999, Connolly filed a petition for writ
of mandamus seeking an order restoring his status as a parolee
and “compelling the [Parole Board] to act in a manner prescribed
by clearly established law, and in conformity of (sic) their own
Rules and Regulations. . . .”
He alleged that the Parole Board
acted arbitrarily because he attempted to comply with the
conditions of parole by obtaining sexual counseling, albeit
outside the SOTP.
Connolly asserted that he had not received
fair notice that he had to successfully complete a particular
sexual treatment program and that the Parole Board did not
provide a written statement of the evidence relied on in revoking
his parole.
On May 6, 1999, the Department of Corrections on behalf
of the Parole Board filed a response to the petition.
It argued
that a writ of mandamus was an improper vehicle for relief
because such a writ is available only in extraordinary
circumstances where no other sufficient remedy exists.
The
Department also challenged the petition based on the merits.
On June 2, 1999, the circuit court entered an order
denying the petition based on the merits.
While indicating that
a declaratory judgment action may have been a more appropriate
procedural vehicle than the more limited writ of mandamus, the
court decided to address the substantive aspects of Connolly’s
petition.
It ruled that Connolly’s claim that the condition
which required him to complete the SOTP was improperly added was
not properly before the court because it had not been raised at
the parole revocation hearings.
It also found that Connolly was
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aware that he was required to complete that particular sexual
offender treatment program and ruled that the Parole Board did
not violate Connolly’s procedural due process rights.
This
appeal followed.
On appeal, Connolly argues that the Parole Board acted
arbitrarily in revoking his parole.
He asserts that he made a
sincere effort to comply with the spirit of the new, special
condition of parole by attempting to participate in private
sexual psychological counseling.
Connolly contends that his
parole officer led him to believe that he could satisfy the
condition by attending the private treatment program.
He argues
that he is entitled to application of the rule of lenity so that
his best efforts to comply with the new condition of parole
should be considered sufficient compliance.
As it did in the court below, the Department of
Corrections argues that Connolly’s complaints can be summarily
dismissed because he did not establish the prerequisites
entitling him to the extraordinary remedy of a writ of mandamus.
While this argument may have some validity,7 we agree with the
circuit court’s view that as a pro se litigant, Connolly’s
pleading should be construed liberally and that his claims should
be decided on the merits.
We also agree with the circuit court,
however, that Connolly is not entitled to any relief.
7
See Evans v. Thomas, Ky., 372 S.W.2d 798, 800 (1963), cert.
denied, 376 U.S. 934, 84 S.Ct. 705, 11 L.Ed.2d 653
(1964)(prisoner may seek writ of mandamus to compel Parole Board
to exercise its duty to perform a ministerial act, but not to
exercise its discretionary duty in a particular way).
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We begin our analysis of the merits by noting that the
initial grant of parole is a privilege and not a right.8
The
Parole Board has broad discretion in deciding whether to revoke
parole, subject to certain minimal procedural due process
rights.9
A parolee remains subject to the orders of the Parole
Board during the period of his parole.10
Connolly contends that the Parole Board acted
arbitrarily in revoking his parole for failing to complete the
SOTP despite his good faith attempt to obtain private sexual
psychological counseling.
He argues that he was not aware that
he was required to complete a particular sexual offender
treatment program.
He claims that based on conversations with
his parole officer, he had been led to believe that treatment by
the private counselor was sufficient.
The record indicates that Connolly had numerous
conversations with his parole officer concerning enrollment and
completion of the specific SOTP through the Department of
Corrections’ Division of Mental Health.
His parole officer
testified at the preliminary hearing that he unequivocally
informed Connolly that he had to complete that specific treatment
program.
Connolly admitted receiving a copy of the November 1997
letter from the Parole Board that imposed the new condition that
8
Land v. Commonwealth, Ky., 986 S.W.2d 440, 442 (1999);
Lynch v. Wingo, Ky., 425 S.W.2d 573 (1968); Commonwealth v.
Polsgrove, 231 Ky. 750, 22 S.W.2d 126 (1929); KRS 439.340.
9
See e.g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,
33 L.Ed.2d 484 (1972); Boulder v. Parke, Ky.App., 791 S.W.2d 376
(1990).
10
KRS 439.346.
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he “[m]ust attend and successfully complete Sexual Offender
Treatment Program and follow all aftercare recommendations.”
He
admitted signing and receiving a copy of the Kentucky Sexual
Offender Treatment Program Contract, which explicitly stated that
failure to comply with any of the requirements “can result in
your termination from treatment.”
Thus, we conclude from the record that Connolly was
given fair notice that he was required to complete the SOTP as a
condition of parole.
While the parole officer admitted giving
Connolly the business card of the private counselor from whom
Connolly attempted to seek treatment, he adamantly stated that he
did not tell Connolly that private counseling could serve as a
substitute for completion of the state SOTP.
While there appears
to have been some miscommunication between Connolly and the
parole officer, Connolly only sought private counseling after he
had been terminated from the state SOTP.
Given the evidence, we
cannot say the Parole Board abused its discretion or acted
arbitrarily in finding that Connolly violated a condition of his
parole.
Connolly’s reliance on the rule of lenity and Keith v.
Commonwealth,11 is misplaced.
First, the rule of lenity is a
principle of statutory construction by which ambiguous penal
statues will be construed in favor of the accused.12
11
It has no
Ky.App., 689 S.W.2d 613 (1985).
12
See Chapman v. United States, 500 U.S. 453, 111 S.Ct.
1919, 114 L.Ed.2d 524 (1991); Boulder v. Commonwealth, Ky., 610
S.W.2d 615 (1980); Commonwealth v. Lundergan, Ky., 847 S.W.2d 729
(1993); Woods v. Commonwealth, Ky., 793 S.W.2d 809 (1990).
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application to the current circumstances.
Second, in Keith, the
Court held that there was no evidence that Keith had violated the
terms of his probation.
The facts indicated that Keith did
everything he possibly could have done to comply with the
requirements of his probation and that his probation had been
revoked for reasons beyond his control.13
In the present case,
Connolly’s termination from the SOTP was not beyond his control
and the record suggests that he did not conscientiously attempt
to follow the requirements of the sex offender treatment program.
His belated attempt to obtain private counseling without approval
by the Parole Board is not similar to the situation faced by
Keith.
Therefore, the Keith case does not support Connolly’s
position.
Finally, Connolly contends that the Parole Board failed
to provide a sufficient written statement as to the evidence it
relied on and the reasons for the revocation.14
While the form
produced by the Parole Board could have given a more complete
explanation of its decision, we believe that it was sufficient in
this case.
The form indicates that the decision was based on the
evidence presented at the preliminary parole revocation hearing.
The entire preliminary hearing was audio taped and the ALJ
produced a written document discussing the testimony, the
findings of fact, and the conclusions of law.
By referencing the
preliminary revocation hearing in its statement of reasons, the
Parole Board incorporated and adopted the evidence presented at
13
Keith, supra at 615.
14
See Morrissey, supra.
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the earlier hearing.
The purpose of a written statement of the
evidence relied on and the reasons for a parole revocation is to
provide a reviewing body or court and the parolee information
explaining or supporting the Parole Board’s action.15
As the
Court stated in Black v. Romano,16 “[t]he written statement
required by Gagnon [v. Scarpelli]17 and Morrissey helps to insure
accurate factfinding with respect to any alleged violation and
provides an adequate basis for review to determine if the
decision rests on permissible grounds supported by the
evidence.”18
The audiotape and written report of the preliminary
hearing provided sufficient information for review of the Parole
Board’s decision.
For the foregoing reasons, we affirm the order of the
Franklin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Connolly, Pro Se
Central City, KY
Keith Hardison
Frankfort, KY
15
United States v. Gilbert, 990 F.2d 916 (6th Cir.
1993)(involving revocation of probation).
16
471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985).
17
411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
18
471 U.S. at 613. See also Belcher v. Kentucky Parole
Board, Ky.App., 917 S.W.2d 584, 587 (1996)(stating Board need not
provide detailed summary or specify particular evidence
supporting its decision denying initial grant of parole).
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