ANTHONY DODD v. JOHN COY; RANDY ECKMAN
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RENDERED:
January 21, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-000420-MR
ANTHONY DODD
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE WILLIAM TRUDE, JR., JUDGE
ACTION NO. 03-CI-00206
v.
JOHN COY;
RANDY ECKMAN
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
KNOPF AND TACKETT, JUDGES; AND EMBERTON, SENIOR JUDGE1.
KNOPF, JUDGE:
Anthony Dodd appeals from an order of the Lee
Circuit Court, entered February 12, 2004, dismissing his
petition for a writ of mandamus against the parole board.2
Dodd
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.
2
Although other respondents were named in the circuit court,
Dodd’s notice of appeal names only John Coy, apparently in his
capacity as chairman of the parole board. Under CR 73.03,
maintains that the board revoked his parole without according
him required process and should be ordered to reconsider his
revocation following adequate procedures.
We agree and so must
reverse and remand.
In 1999, the Grayson Circuit Court convicted Dodd of
several counts of sodomy and sexual abuse and sentenced him to
concurrent terms of imprisonment totaling ten years.
2003, the parole board granted Dodd parole.
In May
Among the
conditions of Dodd’s release were requirements that he
successfully complete a sex offender treatment program (sotp)
and that he “not establish a dating, intimate, sexual
relationship with an adult without prior approval of the
probation and parole officer and treatment clinician.”
In
September 2003, Dodd was expelled from his sex offender
treatment program because he had missed three meetings with his
clinician and because he had established an intimate
relationship with a woman and had not notified or sought
approval from his parole officer or his clinician.
Alleging
that Dodd’s failure to complete the sotp constituted a violation
of his parole agreement, Dodd’s parole officer had him arrested
on October 1, 2003.
therefore, the board, through its representative Coy, is the
only appellee before us.
2
Immediately after the arrest, apparently, the parole
officer presented Dodd with a department of probation and parole
form titled “Notice of Preliminary Hearing.”
The form advised
Dodd that because of his alleged expulsion from the sotp his
parole officer was seeking to have his parole revoked.
It
notified Dodd that a preliminary revocation hearing was
scheduled for October 21, 2003.
It listed some of Dodd’s rights
with respect to the hearing, such as his right to be represented
by counsel.
And it informed him that
[y]ou may waive (give up your right to) the
Preliminary Parole Revocation Hearing and
have your case submitted directly to the
Parole Board by admitting that you are
guilty of each and every violation.
On the back of the form were brief statements waiving
the right to counsel at the preliminary hearing, the right to a
five-day waiting period, and the right to the preliminary
hearing itself.
In conjunction with this last waiver, the form
again advised Dodd that by waiving the hearing he was admitting
the charges against him and that
as a result of
very likely be
violator, have
be required to
sentence.
signing this Waiver, I will
returned as a parole
my parole revoked, and could
serve the remainder of my
Upon the advice of his parole officer, Dodd executed
all of these waivers.
No preliminary hearing was held.
Instead, Dodd was remanded to custody and met the parole board
3
for a final revocation hearing on October 20, 2003.
at the hearing pro se.
He appeared
He admitted that he had not promptly
reported his new romance and admitted further that his friend
lived with her twenty-five year old, mentally handicapped
daughter.
He asserted, however, that he did not think that he
had done anything wrong by forming an adult attachment.
On the
contrary, he expected the new relationship to stabilize his
life.
The board disagreed.
It revoked Dodd’s parole and
ordered him to serve out his sentence.
present action in the Lee Circuit Court.
Dodd thereupon filed the
He complained that the
parole board had revoked his parole without according him
sufficient process and sought a writ ordering the board to give
him a new and more meaningful hearing.
As noted above, the
trial court summarily dismissed Dodd’s petition, from which
dismissal Dodd has appealed.
As Dodd correctly notes, an extraordinary writ is the
proper remedy for parole-board due process violations.3
The
question on review is whether the trial court erred by failing
to grant such a remedy.
3
Shepherd v. Wingo, 471 S.W.2d 718 (Ky., 1971); Mahan v.
Buchanan, 310 Ky. 832, 221 S.W.2d 945 (1949).
4
The United States Supreme Court has held that a
parolee accused of having violated his parole agreement is
entitled
to two hearings, one a preliminary hearing
at the time of his arrest and detention to
determine whether there is probable cause to
believe that he has committed a violation of
his parole, and the other a somewhat more
comprehensive hearing prior to the making of
the final revocation decision.4
Although notice of the charges, a neutral decision maker, and an
opportunity to be heard are requirements at both stages, the
final hearing must include
(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
(unless the hearing officer specifically
finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole
board, . . . and (f) a written statement by
the factfinders as to the evidence relied on
and reasons for revoking parole.5
In addition, the parolee has rights to be represented by
counsel.
He has a constitutional right to counsel if the case
4
Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756,
1759, 36 L. Ed. 2d 656 (1973).
5
Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604,
33 L. Ed. 2d 484 (1972).
5
involves significant issues of either guilt or mitigation.6
He
also has an unqualified right to revocation counsel under KRS
31.110(2)(a).7
The parole board contends that Dodd waived these
rights and essentially pled guilty by executing the waiver
provisions on the Notice of Preliminary Hearing form.
Dodd
maintains that his purported waiver was induced by the parole
officer and was neither knowing nor voluntary.
Although the
question does not seem to have been addressed in Kentucky, we
have no doubt but that the parole board may employ the
revocation analog of a guilty-plea proceeding.
We agree with
Dodd, however, that more needs to be done to ensure that such a
“plea” is knowing and voluntary than was done in this case.
In particular, we are concerned that Dodd’s “plea” was
uncounseled and that his waiver of the right to counsel was
elicited without a hearing, without adequate warning “of the
hazards arising from and the benefits relinquished by waiving
counsel”8 and without a finding on the record that Dodd’s waiver
6
Gagnon v. Scarpelli, supra.
7
“A needy person who is entitled to be represented by an
attorney under subsection (1) of this section is entitled: (a)
To be counseled and defended at all stages of the matter . . .
including revocation of probation and parole.” KRS
31.110(2)(a).
8
Hill v. Commonwealth, 125 S.W.3d 221, 226 (Ky., 2004).
6
of counsel was “knowing, intelligent, and voluntary.”9
Several
states with statutes comparable to KRS 31.110 affording a right
to revocation counsel have held that safeguards such as these
apply to the waiver of such counsel.10
We agree.
Because Dodd
was denied these safeguards, his waiver of counsel must be
deemed involuntary and the revocation based on it invalid.
Accordingly, we reverse the February 12, 2004, order
of the Lee Circuit Court and remand for entry of a writ ordering
the parole board to vacate its revocation of Dodd’s parole and
to conduct an evidentiary revocation hearing at which Dodd’s
statutory right to counsel is given effect and which satisfies
the other procedural standards established by the Supreme Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David S. Mejia
Louisville, Kentucky
Karen Quinn
Frankfort, Kentucky
BRIEF FOR APPELLEE RANDY
ECKMAN:
G. Edward Henry, II
Henry Watz Gardner Sellars &
Gardner
Lexington, Kentucky
9
Id.
10
State v. Evans, 569 S.E.2d 673 (N.C. App., 2002); People ex
rel. Sinclair v. Warden, 579 N.Y.S.2d 981 (N.Y. Sup., 1991);
Salley v. State, 410 S.E.2d 921 (S.C., 1991); State v. Bryan,
395 A.2d 475 (Md. App., 1978). See Annotation, “Right to
Assistance of Counsel at Proceedings to Revoke Probation,” 44
ALR 3d 306 (1972).
7
8
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