ELBERT PHILLIP LONG v. DOUG SAPP; JAMES L. MORGAN; HELEN HOWARD HUGHES, THEODORE R. KUSTER; LUTITIA PAPAILLER; JAMES E. RANKIN; A. PAUL REECE, JR.; HOMER C. SHUMATE; PAULA KING; DEPARTMENT OF CORRECTIONS, NORTHPOINT TRAINING CENTER; COMMONWEALTH OF KENTUCKY, PAROLE BOARD; and BARBARA JONES
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002185-MR
ELBERT PHILLIP LONG
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, SPECIAL JUDGE
ACTION NO. 97-CI-00101
DOUG SAPP; JAMES L. MORGAN; HELEN HOWARD
HUGHES, THEODORE R. KUSTER; LUTITIA PAPAILLER;
JAMES E. RANKIN; A. PAUL REECE, JR.; HOMER C.
SHUMATE; PAULA KING; DEPARTMENT OF CORRECTIONS,
NORTHPOINT TRAINING CENTER; COMMONWEALTH OF
KENTUCKY, PAROLE BOARD; and BARBARA JONES
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; DYCHE and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Elbert Phillip Long appeals from a judgment
dismissing his complaint alleging civil rights violations that was
treated as a petition for declaration of rights under Kentucky
Revised Statutes (KRS) 418.040.
Because we believe that the trial
court acted properly in denying Long the relief he sought, we
affirm.
Following a jury trial in May 1977, Long was convicted of
murder for which he was sentenced to imprisonment for life and was
convicted of first-degree rape for which he was sentenced to five
years’ imprisonment.
Although the original judgment stated the
sentences were to be served consecutively, they are now treated as
concurrent sentences.1
In September 1986, Long was released on
parole under intensive supervision.
A condition of parole imposed
by the Parole Board was that he “must attend comp. [comprehensive]
care center or a treatment program set up by the parole officer in
lieu of the comp. care program until released.”
The parole
documents signed by Long also stated that his failure to comply
with the conditions “at any time” while on parole will be deemed
sufficient cause to declare him a parole violator and could result
in his return to prison to serve the unexpired portion of the
sentence.
In December 1986, Long’s parole officer required him to
attend
a
vocational
instruction
difficulty
in
trailer
finding
education
truck
training
driving
employment.
In
program
because
order
he
to
involving
was
having
finance
his
participation in the program, Long had to obtain a government
sponsored student loan.
In April 1987, Long was transferred to active supervision
after completing the vocational education program and obtaining a
job as a truck driver.
In May 1987, Long’s new parole officer
ordered him to attend sex offender counseling as part of a sex
1
Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993); See
v. Commonwealth, Ky., 746 S.W.2d 401 (1988).
-2-
offender treatment program.
Although the record is not entirely
clear, Long states that in July 1988, he was notified that the
Department
of
Corrections
changed
its
policy
to
require
participants to accept responsibility for any sexual offenses for
which they were convicted as a condition of participation in a
sexual offender treatment program.
Long refused to admit guilt or
accept responsibility for the attempted first-degree rape offense,
so he was prohibited from further participation in the sexual
offender treatment and counseling program.2
Consequently, he was
charged with violating a condition of his parole for failing to
attend sexual counseling and his parole was revoked in July 1988.
In October 1988, Long appeared before the Parole Board,
which denied parole and deferred reconsideration for four years.
In October 1992, the Parole Board again denied Long parole and
deferred reconsideration for four years stating several reasons for
its action including the seriousness of the crimes, and the facts
that violence was involved in the crimes, a death was involved,
Long had three felony convictions and a firearm was used.
In
October 1996, the Parole Board denied Long parole and deferred
reconsideration for two years.
In October 1998, the Parole Board
again denied Long parole and ordered him to serve out the remainder
of his sentence.
As grounds for this last decision, the Parole
Board cited the seriousness of the offenses, the fact that violence
was involved in the crimes, a life was taken and Long had prior
felony convictions.
The Board also noted that Long had violated
the conditions of an earlier grant of parole.
2
The Board suggested
See Ky. Rev. Stat. (KRS) 439.340(10) and (11).
-3-
that Long attend sex offender counseling and indicated that Long
could receive reconsideration if he completed a sex offender
treatment program.
Meanwhile, in August 1996, Long had submitted a request
to the Attorney General’s Office seeking a written formal opinion
and
an
investigation
into
the
actions
of
the
Department
of
Corrections with respect to its handling of his parole status.
Long alleged that the Corrections Department and the Parole Board
had violated his constitutional rights by requiring him to enter
into contracts to secure student loans to pay for the vocational
education program and by changing the conditions of his parole.
The Attorney General’s Office refused to issue a formal opinion or
conduct an investigation.
In January 1997, Long filed a complaint pro se for civil
rights violations which has been treated by the court and the
parties as a petition for a declaration of rights.
In the
petition, Long alleged that the appellees violated Sections 2, 3,
17 and 19 of the Kentucky Constitution and the Eighth Amendment to
the United States Constitution.
He challenged the handling of his
parole status, the revocation of his parole, the Attorney General’s
failure to issue a formal opinion and the conduct of the attorneys
in the Office of General Counsel.
Long alleged that he was being
held illegally on an expired sentence and sought punitive and
compensatory monetary relief.
He also sought an order requiring
that he be given a new parole hearing and an opinion from the
Attorney General’s Office.
-4-
In February 1997, the Attorney General moved to dismiss
Long’s petition for failure to state a claim stating its office is
not required to issue formal opinions or investigate complaints by
private individuals.
Also in February 1997, the Department of
Corrections, on behalf of the other defendants, filed a motion to
dismiss for failure to state a claim under Kentucky Rule of Civil
Procedure (CR) 12.02 based on res judicata concerning a prior
lawsuit brought by Long in federal court under 42 United States
Code (U.S.C.) § 1983 that had been dismissed.3
Long filed replies
to the appellees’ motions to dismiss and requested an evidentiary
hearing.4
Long also moved for a temporary restraining order and a
preliminary injunction in November 1997, seeking release from
prison in which he alleged that prison and parole officials had
committed fraud and conspired to continue holding him illegally.5
On January 26, 1999, Long filed an extensive motion for
partial summary judgment pursuant to CR 56 seeking judgment on the
legal issues of liability and a subsequent jury trial on damages.
At
the
same
time,
restraining order.
Long
renewed
his
motion
for
a
temporary
The appellees filed responses to the motions
3
Attached to the motion to dismiss were documents
indicating that Long filed a § 1983 action in federal court
involving the same issues in his state court action. The federal
suit was dismissed based on the statute of limitations.
The
dismissal was affirmed by the Sixth Circuit Court of Appeals and a
writ of certiorari was denied by the Supreme Court.
4
The record also contains several documents concerning a
complaint by Long that certain documents had been removed from his
prison classification file. This controversy was not raised in his
original petition and is not involved in the current appeal.
5
As stated earlier, in October 1998, Long again appeared
before the Parole Board, was denied parole and was ordered to
serve-out the remainder of his sentence.
-5-
incorporating their prior responses and motions to dismiss.
On
February 18, 1999, the circuit court summarily denied the motions
for a temporary restraining order and partial summary judgment. On
February 23, 1999, Long filed a CR 59.05 motion to alter or amend
the judgment and a motion for findings of fact and conclusions of
law pursuant to CR 52.01.
On September 8, 1999, the circuit court entered a final
judgment and declaration of rights.
It held that the Attorney
General was not required to issue a formal opinion or investigate
Long’s allegations.
It also held that the Corrections Department
could order restitution and parole officers could modify the
general terms and conditions of parole.
The court stated that
several issues raised by Long were factual questions not subject to
resolution in a declaratory judgment action.
The court dismissed
all of the civil rights claims raised in the original complaint
based on sovereign immunity6 and the fact that Long was not part of
a protected class.
This appeal followed.
Long raises several issues on appeal with regard to the
handling of his parole supervision and the ultimate revocation of
his parole for violating the conditions of parole.
Long contends
that the appellees have abused their authority and retaliated
against him for filing this action.
In support of these claims, he
maintains that he has been incarcerated illegally on the five-year
sentence that he received on his conviction for first-degree rape
beyond
its
expiration
date.
He
6
argues
that
the
Corrections
But see Department of Corrections v. Furr, Ky., 23 S.W.3d
615 (2000)(holding that sovereign immunity has been waived for
suits under KRS Chapter 344, the Kentucky Civil Rights Act).
-6-
Department continues to unlawfully hold him on a completed criminal
sentence.
In fact, Long was convicted of murder and first-degree
rape and received a life sentence on the murder conviction.
Even
assuming that the five-year rape sentence was satisfied in 19827,
he is still subject to the life sentence.
Thus, he clearly is not
being forced to serve a completed criminal sentence and is not
currently incarcerated on an expired sentence.
Long also contends that his parole officer did not have
authority to order him to attend the sexual offender treatment
program as a condition of his parole.
Accordingly, he argues, the
revocation
he
of
his
parole
after
was
denied
continued
participation in the counseling sessions for refusing to admit
guilt
or
accept
responsibility
in
connection
with
the
rape
conviction was illegal.
Long’s
argument
on
this
issue
is
premised
on
his
assertion that the Parole Board has the sole authority for issuing
conditions of parole.8
While Long is correct that the Parole Board
sets out the initial conditions of parole, parole officers are
authorized
to
“[k]eep
informed
concerning
the
conduct
and
conditions of each person under their supervision and use all
suitable
methods
to
aid
and
encourage
them
improvement in their conduct and condition.”9
to
bring
about
In addition, KRS
7
See, e.g., Lienhart v. Commonwealth, Ky., 953 S.W.2d 70
(1997)(suggesting that credit for determining expiration date for
a concurrent sentence begins on the first date of service of any
other concurrent sentence).
8
See, e.g., KRS 439.330(1)(c), KRS 439.340(13).
9
KRS 439.480(3).
-7-
439.346 states:
“During the period of his parole, the prisoner
shall be amenable to the orders of the board and the department [of
corrections].”10
The Commissioner of the Department of Corrections
has the power and duty to make rules for the conduct of persons on
parole as long as they do not conflict with the conditions of
parole imposed by the Parole Board.11
In the current case, two of the general conditions of
Long’s parole required him to maintain regular employment or
attempt to obtain employment when unemployed, and to comply with
all rules and regulations prescribed by the Division of Probation
and Parole and the special instructions of his parole officer. One
of the special conditions of parole required Long to attend a
treatment program specified by his parole officer.
Long contends
that his parole officers exceeded their authority in arranging for
him to take vocational training courses that caused him to acquire
a loan debt and ordering him to attend sexual offender counseling
after
he
disagree.
had
completed
the
vocational
training
program.
We
Both of these programs were consistent with and in
furtherance of the conditions of parole.
Long’s characterization
of his educational loan debt as “restitution” is inaccurate.
He
was having difficulty finding a job after being released from
prison and the vocational education training he received led to
employment with a trucking company.
10
The money borrowed on the
The Division of Probation and
auspices of the Department of Corrections.
11
KRS 439.470(1).
-8-
Parole
is
under
the
government loan program enhanced his ability to secure employment
and benefitted him, not the victims of his crime.
Similarly, in 1996, the General Assembly passed the
sexual treatment offender statute12 requiring defendants convicted
of certain sexual offenses13 to successfully complete the Sexual
Offender Treatment Program before being granted parole.
Pursuant
to this statute, the Corrections Department established a policy
requiring parolees with sexual offense convictions to participate
in a sexual offender treatment program.
Long’s parole officer
apparently was complying with this new policy in ordering him to
attend sexual counseling.
of
the
Sexual
Offender
Also, in order to achieve the benefits
Treatment
Program,
the
Corrections
Department requires participants to accept responsibility for their
crimes in order to be allowed to participate.
While Long’s
required participation was ordered after he had been granted
parole, this did not constitute an additional condition or violate
the prohibition against ex post facto laws.14
Long’s required
completion of sexual offender treatment was consistent with his
agreement to abide by the rules and orders of the Division of
Probation and Parole and to attend a treatment program set up by
his parole officer.
12
KRS 439.340(11) and (12).
13
KRS 197.410.
14
See Garland v. Commonwealth, Ky. App., 997 S.W.2d 487
(1999)(finding retroactive application of sexual offender treatment
program statutes did not violate ex post facto clause of the
constitution because they did not involve punishment).
-9-
Long’s argument that he was no longer subject to the
special condition requiring attendance to a treatment program
because
he
had
unpersuasive.
completed
the
vocational
training
program
is
The vocational training courses were part of an
educational program designed to facilitate his employment rather
than a treatment program. Similarly, his reliance on CPP 27-12-0415
is misplaced.
First, that prison policy did not become effective
until March 1, 1988, after Long was ordered to attend sexual
counseling. Second, as discussed earlier, imposition of the sexual
treatment program was not a modification or addition to the special
conditions of parole but was consistent with the general and
special conditions.
Thus, Long has not shown that his parole
supervisors abused or exceeded their authority.
We also note that
the conditions of parole need not be tied directly to the crimes
for
which
a
prisoner
was
convicted.
Parole
is
directed
at
rehabilitation of prisoners; the conditions are intended to assure
that a parolee becomes a law abiding citizen and that the public is
protected.
The fact that Long had completed service of his
sentence for the rape conviction did not preclude the imposition of
a sexual offender treatment program or revocation of parole for
violation of this condition.
Long also argues that the Attorney General should have
investigated
Generally,
his
the
complaints
Attorney
and
General
is
issued
a
formal
responsible
for
opinion.
providing
opinions on issues at the request of state and public officials.
15
CPP 27-12-04 requires parole officers to obtain prior
approval from the Parole Board for modifications to special
conditions, as opposed to general conditions, of parole.
-10-
Under KRS 15.025(4), the Attorney General has the discretion to
issue formal opinions on questions of public interest if requested
in
writing
by
a
private
citizen.
In
addition,
40
Kentucky
Administrative Regulation (KAR) 1:020 states that the Attorney
General should not render official opinions to questions submitted
in contemplation of litigation. Long has not demonstrated that the
Attorney General abused his discretion in declining to issue a
formal opinion at his request.
Likewise, the Attorney General’s investigative authority
is limited primarily to criminal matters, county financial matters,
election issues, environmental and public health issues and coal
mining issues.16
Long’s complaints do not fall within any of the
established areas of investigation.
Moreover, in the area of
criminal investigations, the Attorney General has discretion in
deciding whether to initiate an investigation.17
The Attorney
General was not obligated to conduct an investigation of Long’s
complaints.
We agree with the circuit court that Long did not
establish that he was entitled to compel the Attorney General to
issue a formal opinion or conduct an investigation.
The judgment is affirmed.
ALL CONCUR.
16
See KRS 15.190-15.243.
17
See KRS 15.200.
-11-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elbert Phillip Long, pro se
Burgin, Kentucky
A.B. Chandler III
Attorney General
Keith Hardison
Assistant Attorney General
Frankfort, Kentucky
-12-
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