STEVEN JOHNSON v. KENTUCKY STATE PAROLE BOARD
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RENDERED: MAY 17, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: JUNE 7, 2002; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001562-MR
STEVEN JOHNSON
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 00-CI-00777
v.
KENTUCKY STATE PAROLE BOARD
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and GUIDUGLI, Judges.
HUDDLESTON, Judge:
and
dismissing
his
Steven Johnson appeals from an order denying
petition
for
declaration
of
rights
and
a
permanent injunction or, alternatively, petition for a writ of
mandamus in which he sought an order requiring the Kentucky State
Parole Board to treat him as eligible for parole consideration.
Johnson is an inmate at the Kentucky State Reformatory.
In 1972, he was convicted of rape of a female over twelve years of
age,1 sodomy,2 and two counts of indecent moral practices with
another,3 for events that occurred in 1971 and 1972, and was
sentenced to concurrent terms of ten years for rape and
for each of the other offenses.
five years
He was granted parole in 1974, but
returned to prison in 1977 as a result of parole violations.
Johnson was again granted parole in 1978, but his parole was
revoked in 1982 following his conviction of robbery in the first
degree in April 1982, for which he received a sentence of fifteen
years to run consecutively to the ten-year sentence he received on
the prior convictions. In 1987, Johnson was granted parole for the
third time, but once again returned to prison in 1991 as a result
of parole violations.
In 1995, he again was granted parole, but
his parole was revoked for violations in January 2000, and the
Parole Board deferred further consideration of parole for six
months.
In May 2000, the Department of Corrections classified
Johnson as an eligible sex offender as defined in Kentucky Revised
Statutes (KRS) 197.410, which made parole eligibility contingent on
successful completion of the Sexual Offender Treatment Program
(SOTP).4
In June 2000, the Parole Board notified Johnson that
pursuant to his classification as an “eligible sex offender,” he
would not be considered for parole until he had satisfied the
requirements associated with the SOTP.
1
Ky. Rev. Stat. (KRS) 435.090 (repealed).
2
KRS 436.050 (repealed).
3
KRS 435.105 (repealed).
4
See KRS 439.340 (11).
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On
June
29,
2000,
Johnson
filed
a
petition
for
declaration of rights pursuant to KRS 418.040 and requested a
permanent injunction prohibiting the Parole Board from denying him
parole consideration based on his classification as a sex offender.
He maintained that application of KRS 197.400 et seq. to him
violated the constitutional prohibition on ex post facto laws.
In
November 2000, Johnson filed a notice of submission seeking final
adjudication on a “petition for writ of mandamus.”
The Parole
Board filed a response and moved for dismissal of the petition for
failure to state a claim under Kentucky Rules of Civil Procedure
(CR) 12.02 and KRS 418.065.
The circuit court dismissed the
petition for declaration of rights and refused to issue a permanent
injunction based on Garland v. Commonwealth;5 and, the court held
that Johnson was not entitled to a writ of mandamus.
Johnson’s primary argument is that application of the sex
offender statutes to him constitutes a violation of the ex post
facto provisions of the United States and Kentucky Constitutions.6
An ex post facto law is a law applied to events that occurred
before
its
enactment
and
that
disadvantages
the
offender
by
altering the definition of crimes or increases the punishment for
criminal acts.7
The two major elements of ex post facto analysis
in the criminal context require retroactive application that will
5
Ky. App., 997 S.W.2d 487 (1999).
6
See U.S. Const. Article 1, § 9, cl. 3 and § 10, cl. 1;
Ky. Const. § 19.
7
Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,
2719, 111 L. Ed. 2d 30 (1990).
-3-
disadvantage the offender.8
Recent case law has reformulated the
second element to involve whether retroactive application of the
new law created “a sufficient risk of increasing the measure of
punishment
attached
Commonwealth,10
to
the
crimes.”9
covered
In
Garland
v.
this Court held that application of KRS 197.410(2)
and KRS 439.340(11), which require an “eligible sexual offender” to
successfully complete the SOTP before being granted parole, did not
violate the constitutional prohibition on ex post facto laws.
We
held that given the fact that parole is a privilege subject to the
discretion
of
the
Parole
Board
and
is
not
a
recognized
constitutional right, mandatory participation in the SOTP prior to
parole eligibility does not increase an inmate’s punishment or
underlying sentence.
While it is clear that the statutes at issue in this case
are being applied to events occurring prior to their
enactment, it is equally clear that the appellant has not
been disadvantaged.
Nothing about the Sexual Offender
Treatment Program makes this punishment more onerous. He
must serve a maximum of five years and even though the
treatment program may affect the time frame in which he
8
Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed.
2d 17 (1981); Purvis v. Commonwealth, Ky., 14 S.W.3d 21 (2000).
9
California Dep’t of Corrections v. Morales, 514 U.S. 499,
509, 915 S. Ct. 1597, 1603, 131 L. Ed. 2d 588 (1995); Garner v.
Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000).
10
See supra, n. 5.
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becomes eligible for parole, the appellant will not be
heard to say that he has been disadvantaged.11
In
addition,
scheduling
of
parole
eligibility
hearings
is
discretionary with the Parole Board,12 so deferral of a hearing does
not
deprive
an
inmate
of
a
constitutional
right,
and
the
requirement that the SOTP be completed did not increase the risk of
punishment.13
Garland is directly on point.
The circuit court
correctly rejected Johnson’s ex post facto argument.
Johnson’s
criticism of Garland as a violative of the supremacy clause is
without merit and better addressed to the Kentucky Supreme Court.14
Johnson also challenges the application of the sexual
offender statutes to his situation. He notes that the sex offenses
for which he was convicted occurred in 1971 and 1972 pursuant to
statutory provisions that were later repealed and replaced in 1975
by provisions in the new Penal Code.15
He asserts that by the time
the Corrections Department classified him as a sexual offender for
purpose of parole eligibility in 2000, he had completed service of
his original ten year sentence on the sex offenses and he was
11
12
Id. at 490.
501
1:030(2)(d).
Kentucky
Administrative
Regulations
(KAR)
13
See Chambers v. Colorado Dep’t of Corrections, 205 F.3d
1237, 1241-42 (10th Cir.), cert. denied, 531 U.S. 962, 121 S. Ct.
391, 148 L. Ed. 2d 301 (2000); Neal v. Shimoda, 131 F.3d 818, 827
(9th Cir. 1997).
14
The Supreme Court referred to but distinguished the
decision in Garland from the situation involving post-release
conditional discharge. See Purvis v. Commonwealth, Ky., 14 S.W.3d
21 (2000).
15
See supra, notes 1-3.
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serving the fifteen years sentence on his 1982 conviction for
robbery.
The circuit court stated that “Johnson must attend the
Sex Offender Treatment Program if he falls within the definition of
a sex offender as that term is defined in KRS 197.410,” but then
held that Garland sanctioned application of the SOTP to a sex
offender who was convicted of sex crimes prior to the effective
date of the sexual offender statute.
The circuit court’s reliance
on Garland on this issue was misplaced.
We
begin
with
a
few
basic
tenets
of
statutory
construction. The guiding principle of statutory interpretation is
that courts are to construe statutes so as to give effect to the
intent of the General Assembly.16
In determining legislative
intent, courts must refer to the language of the statute and are
not free to add or subtract from the statute or interpret it at
variance from the language.17
“To determine legislative intent,
a court must refer to ‘the words used in enacting the statute
rather than surmising what may have been intended but was not
expressed.’”18
All statutes should be interpreted to give meaning
to each provision in accord with the statute as a whole.19
16
Commonwealth v. Harrelson, Ky., 14 S.W.3d
(2000); Hale v. Combs, Ky., 30 S.W.3d 146, 151 (2000).
Courts
541,
546
17
Hale, supra, n. 6, at 151 (quoting Beckham v. Board of
Educ. of Jefferson Co., Ky., 873 S.W.2d 575, 577 (1994)); Stogner
v. Commonwealth, Ky. App., 35 S.W.3d 831, 834 (2000).
18
Commonwealth
v.
Allen,
Ky.,
980
2d
278,
280
(1998)(quoting Flying J. Travel Plaza v. Transportation Cabinet,
Dep’t of Highways, Ky., 928 S.W.2d 344, 347 (1996)).
See also
Estes v. Commonwealth, Ky., 952 S.W.2d 701, 703 (1997); Stogner v.
Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000).
19
Aubrey v. Office of Attorney General, Ky. App., 994
(continued...)
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have a duty to accord the words of a statute their literal meaning
unless to do so would lead to an absurd or wholly unreasonable
conclusion.20
“Where
the
words
of
a
statute
‘are
clear
and
unambiguous and express legislative intent, there is no room for
construction or interpretation and the statute must be given its
effect as written.’”21
Statutory interpretation is a question of
law subject to de novo review.22
The relevant version of KRS 197.410(1) provides that: “A
person is considered to be a ‘sexual offender’ as used in this
chapter when he or she has been adjudicated guilty of a sex crime,
as defined in KRS 17.500, or any similar offense in another
jurisdiction.”23
“Sex crime” is defined in KRS 17.500(6)
as
follows:
(a)
A felony offense defined in KRS Chapter 510,
KRS 530.020, 530.064, 531.310, or 531.320;
19
(...continued)
S.W.2d 516, 520 (1998); DeStock No. 14, Inc. v. Logsdon, Ky., 993
S.W.2d 952, 957 (1999).
20
McElroy v. Taylor, Ky., 977 S.W.2d 929, 931 (1998);
Bailey v. Reeves, Ky., 662 S.W.2d 832, 834 (1984); Worldwide
Equipment, Inc. v. Mullins, Ky. App., 11 S.W.3d 50, 59 (1999).
21
White v. Check Holders, Inc., Ky., 996 S.W.2d 496, 497
(1999) (quoting McCracken County Fiscal Court v. Graves, Ky., 885
S.W.2d 307, 309 (1994)). See also Commonwealth v. W.E.B., Ky., 985
S.W.2d 344, 345 (1998); Ware v. Commonwealth, Ky. App., 34 S.W.3d
383, 386 (2000).
22
Revenue Cabinet v. Hubbard, Ky., 37 S.W.3d 717, 719
(2000); Marks v. Bean, Ky. App., 57 S.W.3d 303, 306 (2001).
23
See 2000 Ky. Acts Ch. 401, § 31, effective April 11,
2000. Johnson was classified as a sex offender by the Corrections
Department in May 2000 and was notified of the classification in
June 2000.
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(b)
A felony attempt to commit a felony offense
specified in paragraph (a) of this subsection;
or
(c)
A federal felony offense, a felony offense
subject
to
a
court-martial
of
the
United
States Armed Forces, or a felony offense from
another state or a territory where the felony
offense
is
similar
to
a
felony
offense
specified in paragraph (a) of this subsection.
Johnson’s convictions for rape, sodomy and indecent moral
practices with another pre-date the enactment of the Kentucky Penal
Code.
While those offenses have counterparts in the Penal Code,
the language of KRS 197.410 and KRS 17.500 refer specifically to
offenses defined in particular provisions of the Code. They do not
contain
language
incorporating
convictions
for
pre-Penal
Code
offenses.
In addition, KRS 500.040 provides that the Penal Code
“shall not apply to any offense committed prior to January 1, 1975
. . . .”
If the General Assembly had wanted to include pre-Penal
Code Offenses it could have done so as evidenced by language in KRS
197.410 and KRS 17.500(6) including “similar offenses” from other
states or jurisdictions. Consequently, we conclude that Johnson is
not
a
“sexual
offender”
eligibility requirements.
for
purposes
of
applying
the
parole
The Corrections Department and Parole
Board erred in classifying him as an “eligible sex offender” as
defined by KRS 197.410 and requiring him to complete, be denied
-8-
entrance into, or be terminated from the SOTP before becoming
eligible for parole consideration.24
Garland does not compel a different result.
It dealt
solely with the ex post facto issue. While retroactive application
of the sexual offender statutes was a component of the analysis,
the defendant in Garland was convicted in 1998 of sexual abuse
under the Penal Code.
Therefore, Garland is distinguishable.
Our opinion only concerns Johnson’s parole eligibility
and not the granting of parole.
The Parole Board has discretion to
determine whether or not to grant parole.
We merely hold that the
Parole Board erroneously denied Johnson consideration for parole
based on the sexual offender statutes.
Concomitantly, the circuit
court erred in dismissing Johnson’s declaration of rights petition.
For the foregoing reasons, we reverse the order from
which this appeal is prosecuted and remand this case to Franklin
Circuit Court for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven Johnson, pro se
LaGrange, Kentucky
Karen Quinn
JUSTICE CABINET
Office of General Counsel
Frankfort, Kentucky
24
The Parole Board also cited 501 KAR 1:030(2)(1)(a),(b)
and (c) as authority for its action. That regulation only applies
to eligible sex offenders as defined in KRS 197.400-.440 convicted
after July 15, 1986. Neither Johnson’s sexual convictions nor the
robbery conviction occurred after July 1986.
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