DOUGLAS WARD v. KENTUCKY STATE PAROLE BOARD
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RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001624-MR
DOUGLAS WARD
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 99-CI-00157
KENTUCKY STATE PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; EMBERTON AND TACKETT, JUDGES.
TACKETT, JUDGE:
Douglas Ward (Ward) appeals pro se from an order
of the Muhlenberg Circuit Court denying his petition for a writ
of mandamus in which he sought a new hearing before the Kentucky
Parole Board (Parole Board).
Finding no error, we affirm.
Ward currently is an inmate at the Green River
Correctional Complex serving a sentence of 100 years on
convictions for wanton murder, two counts of robbery in the first
degree and criminal conspiracy to commit robbery in the first
degree.
According to Ward, he has been imprisoned since 1981.
On April 15, 1998, Ward appeared before a three member panel of
the Parole Board to review his eligibility for parole.
Following
the hearing, the Parole Board decided that Ward was a poor parole
risk and deferred reconsideration of his eligibility for parole
for a period of 144 months.
The Parole Board gave the following
reasons for its action: (1) seriousness of the crime; (2)
violence involved in the crime; (3) a life was taken; (4) Ward’s
prior record; (5) Ward’s misdemeanor record; (6) Ward’s felony
conviction(s); (7) Ward’s admitted history of drug abuse; (8)
crime involved firearm; (9) good time loss; and, (10) poor
institutional adjustment.
Ward’s request for reconsideration by
the Parole Board was rejected.
On April 13, 1999, Ward filed a petition for a writ of
mandamus in circuit court seeking an order for a new hearing that
“compels the Respondent [Parole Board] to act in a manner that is
prescribed by clearly established law, and that will conform to
the Respondents own Rules and Regulations that are duly
promulgated.”
He contended the Parole Board improperly
considered his initial conviction of murder that was reversed and
remanded by the Kentucky Supreme Court, and that the Parole Board
failed to apply the parole laws in effect at the time of his
conviction.
The Department of Corrections, on behalf of the
Parole Board, filed a response challenging Ward’s claims and
requesting dismissal for failure to state a claim under Kentucky
Rule of Civil Procedure (CR) 12.02 or summary judgment under CR
56.
On June 21, 1999, the circuit court entered an order denying
the petition and granting the Parole Board’s request for summary
judgment.
Ward filed a motion to reconsider in which he asked
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the court to withdraw its order dismissing and permit him to
conduct discovery.
to reconsider.
The trial court summarily denied the motion
This appeal followed.
Ward raises several challenges to the action of the
Parole Board.
First, he again contends the Parole Board
improperly took into account the fact that the jury in his first
murder trial convicted him and recommended a sentence of death
even though the Kentucky Supreme Court later reversed the
conviction and remanded the case for a new trial.
Second, he
argues that the Parole Board improperly failed to apply the same
procedures and practices that were followed at the time of his
conviction in 1981.
Finally, he maintains that the trial court
prematurely denied the petition without providing him with
adequate notice and time to conduct discovery.
As a general rule, a writ of mandamus is an
extraordinary remedy that is available only if the petitioner can
establish that he has no other adequate remedy and irreparable
injury will result if the writ is not granted.
Owens Chevrolet
v. Fowler, Ky., 951 S.W.2d 580, 582 (1997); Foster v. Overstreet,
Ky., 905 S.W.2d 504, 505 (1995).
A prisoner may seek a writ of
mandamus to compel the Parole Board to exercise its duty to
perform a ministerial act but not to exercise its purely
discretionary duty in any particular manner.
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).
See also White v.
Board of Education of Somerset Independent School District, Ky.
App., 697 S.W.2d 161, 163 (1985) (mandamus available to require
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administrative officer to perform purely ministerial act).
“Mandamus is a drastic remedy, to be invoked only in
extraordinary situations where the petitioner can show a clear
and indisputable right to the relief sought.”
In re Parker, 49
F.3d 204, 206 (6th Cir. 1995).
In determining whether a writ of mandamus should issue,
the following inquiries are relevant:
‘1) Is there a duty imposed upon the officer;
2) is the duty ministerial in its character;
3) has the petitioner a legal right, for the
enjoyment, protection or redress of which the
discharge of such duty is necessary; (4) has
he no other and sufficient remedy; and 5) in
view of the fact that the issuance of the
writ is not always a matter of right, are the
circumstances of the case such as will call
forth the action of the court?’
Stratford v. Crossman, Ky. App., 655 S.W.2d 500, 502
(1983)(quoting Fiscal Court of Cumberland County v. Board of
Education of Cumberland County, 191 Ky. 263, 230 S.W. 57, 60
(1921)).
The standard of review upon appeal of a denial of a
writ of mandamus is whether the circuit court abused its
discretion.
(1997).
See Owens v. Williams, Ky. App., 955 S.W.2d 196, 197
In addition, the appellant bears the burden of
demonstrating an abuse of discretion.
Id.
In Belcher v. Kentucky Parole Board, Ky. App., 917
S.W.2d 584 (1996), the court discussed the discretionary nature
of parole.
First, the court held that neither the federal
constitution nor state law created a protected due process
liberty interest in parole.
The court noted that in Kentucky
parole is a matter of legislative grace, and “[n]othing in the
statute [Kentucky Revised Statute (KRS) 439.340] or the
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regulations mandates the granting of parole in the first
instance, and nothing therein diminishes the discretionary nature
of the [Parole] Board’s’s authority in such matters.”
586.
Id. at
See also Land v. Commonwealth, Ky., 986 S.W.2d 440, 442
(1999).
However, the court indicated that a prisoner has a
legitimate interest in a parole decision based on consideration
of relevant criteria.
Belcher, supra at 587.
Ward’s first argument involves his allegation that one
of the Parole Board members was fixated on the fact that his
initial murder conviction was reversed.
He asserts that during
the hearing, “the sole and only interest [of one of the Parole
Board members] was seemingly utter disbelief in confirming that
such [death] sentence had actually been reversed.”
Ward argues
that the Parole Board exceeded its authority and deprived him of
his right to appeal by taking into account his first murder
trial.
He contends that the Supreme Court’s reversal rendered
the jury’s decision void and, therefore, it was no longer
relevant to the parole decision.
In our review of the audiotape recording of the parole
hearing, the only references found to the reversal of Ward’s
initial conviction occurred at the beginning of the hearing in
(1) a chronological summary of the legal events leading to his
imprisonment and (2) a question by one board member concerning
the events following the Kentucky Supreme Court’s remand of the
case.
These references were appropriate in understanding Ward’s
case.
His attempt to imbue these references with significance in
the deliberations by the board members in reaching their decision
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is unsubstantiated by the record.
The Parole Board gave ten
explicit reasons for its decision, all of which are supported by
the record and involve those issues discussed at length during
the hearing.
The reversal of Ward’s conviction is, of course, a
matter of public record and may be considered by the Parole
Board.
“Generally, a parole board has broad discretion in
hearing evidence, including dismissed counts of an indictment,
hearsay evidence, and allegations of criminal activity for which
the prisoner has not even been charged.”
Ky. App., 810 S.W.2d 60, 62 (1991).
Aaron v. Commonwealth,
See also KRS
439.330(1)(a)(duties of parole board include study of prisoner
case histories).
Ward’s second argument that the Parole Board violated
the Ex Post Facto Clause in Article I, Sections 9 and 10 of the
U.S. Constitution and Section 19 of the Kentucky Constitution is
equally without merit.
Ward asserts that the 144-month deferment
exceeded both statutory limits and what the “custom, practice,
tradition, or law was when Appellant’s sentence commenced.”
He
claims that he was entitled to have the same policies, practices,
and traditions that existed in 1981 applied to determine his
parole eligibility in 1999.
Ward states that hundreds of
prisoners with equally egregious criminal records have been
granted parole in the past and suggests that the recent trend
toward restricting parole influenced the Parole Board’s decision
in his case.
The prohibition on ex post facto laws prevents the
government from increasing punishment for an act that occurred
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prior to a change in the law.
See Collins v. Youngblood, 497
U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Botkin v.
Commonwealth, Ky., 890 S.W.2d 292 (1994).
The main concern of
the Ex Post Facto Clause is “the lack of fair notice and
governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated.”
Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137
L.Ed.2d 63 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30, 101
S.Ct. 960, 965, 67 L.Ed.2d. 17 (1981)).
See also Botkin, supra.
In a case involving the application of a new statute to
parole eligibility, the United States Supreme Court in California
Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597,
131 L.Ed.2d 588 (1995), discussed the proper analysis for
determining whether the retrospective application of a law
offends the Ex Post Facto Clause.
The Court stated 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 whether
a prisoner has suffered an alleged hardship, such as loss of an
opportunity for parole.
Id. at 506 n.3, 115 S.Ct. at 1602 n.3.
See also Lynce v. Mathis, 519 U.S. 437, 441, 117 S.Ct. 891, 896,
137 L.Ed.2d 63 (1997).
The ex post facto issue necessarily
concerns a matter of degree, but there is no violation if the
change “creates only the most speculative and attenuated
possibility of producing the prohibited affect of increasing the
measure of punishment for covered crimes. . . .”
U.S. at 509, 115 S.Ct. at 1603.
Morales, 514
The party challenging the law
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has the burden of establishing that the measure of punishment has
increased in order to prove the existence of a constitutional
violation.
Id. at 510 n.6, 115 S.Ct. at 1603 n.6.
As the court
stated in Hamm v. Latessa, 72 F.3d 947, 959 (1st. Cir. 1995),
cert. denied, 519 U.S. 856, 117 S.Ct. 154, 136 L.Ed.2d 99 (1996),
“[a] party who asserts an ex post facto claim must show a real
possibility of cognizable harm, not a theoretical possibility
bound up in gossamer strands of speculation and surmise.”
Ward’s ex post facto argument is deficient for several
reasons.
First, he contends that the Parole Board improperly
applied KRS 439.3401 in setting a deferment period of 144 months
(twelve years).
He notes that KRS 439.3401(5), which sets a
maximum parole eligibility period of twelve years, indicates that
it would not apply to persons who committed offenses prior to
July 15, 1986.
Ward states that prior to enactment of KRS
439.3401, the maximum deferral period was eight years.
The parole regulations in effect at the time of Ward’s
hearing indicate that prisoners who committed crimes between
December 3, 1980, and July 15, 1986, and received sentences of
thirty-nine years and up, including life, would be initially
eligible for parole initially after serving eight years.
Kentucky Administrative Regulation (KAR) 1:030(3)(a).
501
However,
in 501 KAR 1:030(3)(d) the Parole Board is given more discretion
in assigning the deferment period.
It states:
After the initial review for parole, a
subsequent review, during confinement, shall
be at the discretion of the board; however,
the maximum deferment given at one (1) time
shall not exceed the statutory minimum parole
eligibility for a life sentence.
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There is nothing in this regulation segregating the
treatment of prisoners according to the date of their offense as
exists with the initial parole review, which is established by
statute.
In addition, this regulation authorizes the Parole
Board to apply the statutory minimum parole eligibility period
for a life sentence as of the date of parole hearing as the
maximum deferment period.
Ward has not shown that there has been
a change in the law that has resulted in a retroactive
application of the law to his situation.
Ward’s claim that he was entitled to treatment by the
Parole Board consistent with past “policy, custom, practice or
tradition” also fails.
Ward’s assertions that hundreds of other
inmates convicted of murder have been granted parole and that the
Parole Board was influenced by recent public concern over release
of prisoners lend no valid support for granting relief.
This
complaint focuses on the Parole Board’s exercise of discretion.
The United States Supreme Court specifically stated in Morales
that the ex post facto prohibition does not “require that the
sentence be carried out under the identical legal regime that
previously prevailed.”
514 U.S. at 510 n.6, 115 S.Ct. at 1603
n.6.
Finally, given our conclusion that Ward’s complaints
are without merit, we believe the trial court did not abuse its
discretion in denying the motion to reconsider in order to allow
additional discovery.
Under KRS 454.405, a trial court may
dismiss a civil action at any time upon a finding that the action
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is without merit.
Ward has not shown that additional discovery
was needed.
For the foregoing reasons, we affirm the order of the
Muhlenberg Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas Ward
Central City, Kentucky
Keith Hardison
Frankfort, Kentucky
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