JAMES LANG v. KENTUCKY PAROLE BOARD
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RENDERED:
OCTOBER 15, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002364-MR
JAMES LANG
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 03-CI-00206
v.
KENTUCKY PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; AND EMBERTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
James Lang has appealed, pro se, from an order
of the Franklin Circuit Court entered on October 14, 2003,
granting the Kentucky Parole Board’s motion for summary judgment
and dismissing his petition for writ of mandamus.
Having
concluded that the trial court properly denied Lang relief, we
affirm.
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
On February 25, 2003, Lang filed a petition in the
Franklin Circuit Court seeking the issuance of a writ of
mandamus compelling the Kentucky State Board to conduct another
parole revocation hearing.
Lang contended as a basis for this
motion that his parole had been revoked illegally.
The Board
filed a motion to dismiss and a motion for summary judgment with
the circuit court.
In that motion, the following facts are set
forth relative to Lang’s parole revocation:
Petitioner has a lengthy record,
composed of thirty-one felony offenses. In
1983, he was convicted of four counts of
criminal possession of a forged instrument
(second degree), two counts of possession of
a scheduled II controlled substance, and
twelve counts of theft by deception (over
one hundred dollars). In 1985, he was
convicted of two counts of robbery in the
second degree, three counts of robbery in
the first degree, and six counts of
persistent felony offender second degree.
In 1995, he was convicted of receiving
stolen property over three hundred dollars.
Petitioner is also a repeat parole violator.
Released on parole in December 1983, he went
on to commit five new felonies in 1985. His
parole was reinstated in December 1993, only
to have him violate such in August 1994 with
his parole revoked in September 1994. His
parole was reinstated again in January 1997,
with his violating such in January 1998, and
his parole being revoked that same month.
Once again, the Parole Board reinstated
petitioner’s parole in January 2002, but he
violated such in September 2002, and it was
revoked in November 2002. It is the most
recent revocation of which petitioner
currently complains.
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On October 2, 2002, petitioner received
a Notice of Preliminary Hearing, notifying
that he was charged with five violations of
his parole conditions: 1) use of controlled
substances – morphine/opiates 2) failure to
complete a substance abuse treatment program
3) failure to report to parole office 4)
failure to report a change of address and 5)
absconding parole supervision. On the same
day, petitioner signed a Waiver of
Preliminary Hearing, admitting his guilt to
the violations. On November 26, 2002,
petitioner appeared before the Parole Board
for his final hearing. The three member
panel voted to revoke his parole, basing its
decision upon petitioner’s waiver of his
preliminary hearing, and his admission to
guilt at the final parole hearing, and
deferred petitioner for sixty months
[citations to record omitted].
Following the Parole Board’s deferment Lang petitioned
the Board for reconsideration of its decision specifically
asking that the Board reduce the deferment from 60 months to 48
months in order to allow him to remain classified in minimum
security.
On December 20, 2002, the Board found no basis for
reconsideration and allowed the 60-month deferment to remain.
Thereafter, Lang filed the petition for writ of mandamus in the
Franklin Circuit Court, which was denied by an order entered on
October 14, 2003.
This appeal followed.
A writ of mandamus is an extraordinary remedy that is
available only if the petitioner can establish that he has no
other remedy and irreparable injury will result if the writ is
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not granted.2
The Court in Fiscal Court of Cumberland County v.
Board of Education of Cumberland County,3 set forth the following
five factors to be considered in determining whether a writ of
mandamus should issue:
“Upon an application for such writ
(mandamus) the questions which usually arise
are: (1) Is there a duty imposed upon the
officer; (2) [I]s the duty ministerial in
its character; (3) [H]as the petitioner a
legal right, for the enjoyment, protection
or redress of which the discharge of such
duty is necessary; (4) [H]as he no other and
sufficient remedy; and (5) [I]n 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?”
In Wise v. United States,4 the Court stated:
As has been stated in several cases where a
plaintiff seeks mandamus, he must prove
three elements: (1) a clear right of
plaintiff to the relief sought; (2) a clear
duty on the part of the defendant to do the
act in question; and (3) that no other
adequate remedy is available.
Additionally, in establishing minimal due process
procedures in connection with parole revocation proceedings, the
United States Supreme Court in Morrissey v. Brewer,5 stated that
a parolee must be provided with a preliminary parole revocation
2
Foster v. Overstreet, Ky., 905 S.W.2d 504, 505 (1995).
3
191 Ky. 263, 268, 230 S.W. 57, 60 (1921)(quoting 18 R.C.L., p. 114-15).
4
369 F.Supp. 30, 32-33 (W.D.Ky. 1973).
5
408 U.S. 471, 486-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
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hearing in which the parolee has the opportunity to present
witnesses and evidence and the right to confront and crossexamine adverse witnesses.
The Court further stated that the
purpose of the final revocation hearing is to determine
contested relevant facts and to determine whether the facts
warrant revocation.6
Minimum due process requirements include a
written statement by the fact-finders as to the evidence relied
upon and the reasons for revoking parole.7
In this case, Lang has failed to meet the standards
for the issuance of a writ since no duty has been imposed and no
right of Lang’s has been violated.
Additionally, Lang received
all the due process rights to which he was entitled under law.
Lang was charged with five violations.
preliminary hearing.
five violations.
He waived his right to a
In the signed waiver, Lang admitted all
In addition, his signature attested a knowing
and voluntary waiver of the hearing; waiver of calling
witnesses, questioning witnesses and presentation of documents;
and knowledge that the waiver would most likely result in his
return as a parole violator and revocation of parole with the
requirement of serving the remainder of his sentence.
His
signature appears directly below the following statement:
I hereby sign this waiver freely and
voluntarily and with full knowledge of the
6
Id.
7
Id.
-5-
consequences of my action. I am not being
forced to or promised anything to agree to
this waiver. I am not under the influence
of alcohol, narcotics, or drugs.
The form further contains the signature of Lang’s probation and
parole officer certifying that the waiver had been read to Lang.
The Parole Board, in compliance with the regulations
and applicable law, conducted a final hearing.
Lang again
admitted to all five violations in the final hearing.
Based
upon Lang’s waiver of the preliminary parole revocation hearing
and his admission of guilt, Lang was found guilty of violating
the five separate conditions of parole and he received a 60month deferment.
Lang received all due process guarantees to
which he was entitled and he has failed to meet the standards
for issuance of a writ of mandamus.
Furthermore, the circuit court correctly granted the
Parole Board’s motion for summary judgment.
Summary judgment is
appropriately granted “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”8
The usual summary judgment
analysis is qualified in this case, however, as principles of
8
Kentucky Rules of Civil Procedure (CR) 56.03.
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administrative law and appellate procedure bear upon the circuit
court’s decision.9
In cases involving prisoners,
[t]he problem is to reconcile the
requirement under the general summary
judgment standard to view as favorably to
the non-moving party as is reasonably
possible the facts and any inference drawn
therefrom, with a reviewing court’s duty to
acknowledge an agency’s discretionary
authority, its expertise, and its superior
access to evidence. In these circumstances
we believe summary judgment . . . is proper
if and only if the inmate’s petition and any
supporting materials, construed in light of
the entire agency record (including, if
submitted, administrators’ affidavits
describing the context of their acts or
decisions), does not raise specific, genuine
issues of material fact sufficient to
overcome the presumption of agency
propriety. . . .10
Applying this standard, we agree with the circuit court that
Lang’s allegations raise no genuine issue as to any material
fact and do not entitle him to the relief he seeks.
First, we disagree with Lang’s assertion that the
final revocation hearing was pre-determined.
In support of this
assertion, Lang relies on the speed of the hearing and the fact
that the Parole Board members brought with them a yellow Parole
Board decision sheet, which Lang alleges is only used for
revocations and deferrals.
Under “Parole Board Action” on the
form the following five alternatives are listed:
9
10
Smith v. O’Dea, Ky.App., 939 S.W.2d 353, 356 (1997).
Id.
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deferment,
continue on parole, violation of parole five times, serve out,
and parole reinstated.
deferment.
form.
In Lang’s case, the Board found for
No pre-determination can thus be attributed to the
The speed of the hearing can also be attributed to the
fact that Lang admitted guilt, both at the waiver of the
preliminary hearing stage and at the final hearing.
Lang’s argument of insufficient notice of the charges
and insufficient access to the evidence fails for several
reasons.
First, his signature on the waiver of the notice of
preliminary hearing form attests to knowledge of the charges
against him.
Additionally, the Parole Board’s decision was
based on his signature on this form and on his admitted guilt at
the final revocation hearing and not on the evidence upon which
he alleges he was denied access.
And, pursuant to Morrissey,
Lang’s admission of parole violations is reasonable ground for
revoking parole.11
Finally, Lang argues that he was prejudiced because
one of the same members of the Parole Board that decided his
deferment also reviewed his reconsideration petition.
Lang
cites to no controlling authority entitling him to relief on
this ground and the record is clear that the review procedures
were followed.
11
Lang’s review for reconsideration was screened
Morrissey, 408 U.S. at 490.
-8-
in accordance with applicable law and none of the reasons
meriting reconsideration was met.
There was no prejudice.
We will not consider Lang’s assertion that his waiver
of preliminary hearing was invalid as the issue was not raised
before the circuit court and we will not consider it for the
first time on appeal.12
For the foregoing reasons, the order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James Lang, Pro Se
Lexington, Kentucky
Karen Quinn
Frankfort, Kentucky
12
Abuzant v. Shelter Insurance Co., Ky.App., 977 S.W.2d 259, 262 (1998).
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