WILLIAM A. SHECKLES, JR. v. KENTUCKY PAROLE BOARD; ROBERT W. MILBURN, JR.; LUTITIA F. PAPAILLER; AND VERMAN R. WINBURN
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RENDERED:
MODIFIED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
FEBRUARY 17, 2006; 10:00 A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002210-MR
WILLIAM A. SHECKLES, JR.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 04-CI-00670
v.
KENTUCKY PAROLE BOARD;
ROBERT W. MILBURN, JR.;
LUTITIA F. PAPAILLER; AND
VERMAN R. WINBURN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE.1
HENRY, JUDGE:
William A. Sheckles, Jr. (Sheckles), pro se,
brings this appeal from an order of the Franklin Circuit Court,
entered August 20, 2004, dismissing his petition for writ of
mandamus.
We affirm.
On August 24, 2000, Sheckles found his wife, Tara, in
bed with another man.
consciousness.
1
He beat her with his fists until she lost
Sheckles initially admitted attacking Tara, then
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
recanted.
He later told Tara and her sister at separate times
that by pleading temporary insanity he would not be convicted.
From her bed in the intensive care unit, Tara identified
Sheckles as the person who beat her into unconsciousness.
Sheckles subsequently pleaded guilty to an amended
charge of second-degree assault.2
He was sentenced pursuant to
his plea to ten years, enhanced to seventeen years as a seconddegree persistent felony offender (PFO II).3,4
On February 4, 2004, Sheckles appeared before the
Kentucky Parole Board (Board).
serve-out his sentence.
The Board ordered Sheckles to
Pursuant to 501 Kentucky Administrative
Regulations (KAR) 1:030 § 4(1), the Board must rely on at least
one of sixteen factors in denying parole.
The Board denied Sheckles' parole based on the following three
factors:
(a) Current offense – seriousness, violence
involved;
(b) Prior record – prior felony
convictions, prior misdemeanor convictions,
history of violence; and
2
Kentucky Revised Statutes 508.020:
(1) A person is guilty of assault in the second degree when:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a
deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of
a deadly weapon or a dangerous instrument.
(2) Assault in the second degree is a Class C felony.
3
Kentucky Revised Statutes 532.080.
4
This Court subsequently affirmed the circuit court's denial of Sheckles'
motion to withdraw his plea. (Sheckles v. Commonwealth, 2002-CA-001977-MR).
-2-
(e)
History of alcohol or drug involvement.
Also checked on the Board's decision form was "(c)rime involved
firearm/deadly weapon or dangerous instrument."
Use of a
firearm, a factor under the above "current offense" category,
was clearly not applicable to Sheckles.
The Board hand wrote
"African Head" over the phrase "deadly weapon or dangerous
instrument."
(Board Decision Number 159398N).
Pursuant to 501 KAR 1:030 § 4(4) and (5), an inmate in
Sheckles' position who has been denied parole may request an
appellate review by the Board.
The request is required to be
based on one or more of the following:
(a) misconduct by a
board member; (b) significant procedural error by a board
member; or (c) significant new evidence that was not available
at the time of the hearing, accompanied by adequate
documentation.
The request is initially screened by a board
member or designee who either finds one or more of the three
reasons substantiated and refers the matter to the board or
fails to find one or more of the three reasons and denies the
request for reconsideration.
In accord with the above process, Sheckles requested
that the Board reconsider its decision, apparently alleging one
of the three requisite reasons under which reconsideration is
allowed – "significant new evidence that was not available at
the time of the hearing."
It appears that Sheckles took issue
-3-
with the Board's finding as a factor "crime involved
firearm/deadly weapon or dangerous instrument," with 'African
head' handwritten above "deadly weapon or dangerous instrument."
As his supporting documentation, Sheckles attached a videotape
which he alleged showed the sentencing court stating "that there
was no weapon or dangerous instrument involved in this case."
In reviewing Sheckles' request, the screener found no
basis for reconsideration by the Board due to the fact that 1)
no significant new information existed and 2) the new
information presented was not relevant to the Board's decision.
Alternatively, listed as "additional comments or reason(s) for
referral for reconsideration," the screener wrote:
"Decision
notes that 'African head,' not deadly weapon or dangerous
instrument, (was) involved."
Two days after the denial, the Board notified Sheckles
by letter that the documents he sent to the Board were made a
part of his central office file which would be reviewed at his
parole eligibility review.
The Board, however, returned the
videotape, noting that it did "not have the capability to listen
to or to store videotapes."
On May 21, 2004, Sheckles filed, pro se, a petition
for writ of mandamus with the Franklin Circuit Court, alleging
an abuse of discretion by the Board in failing to review his
videotape, and asking the court to direct the Board to hold a
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new parole hearing in which they would consider his videotape
evidence.
The Board moved for dismissal, and on August 20, 2004,
the circuit court granted the Board's motion.
This appeal
followed.
Before addressing the merits of the appeal, it is
necessary to first address a preliminary matter.
Prior to the
filing of briefs, the Board filed a "response and motion to
affirm order of dismissal," which was treated as a motion to
dismiss the appeal.
A panel of this Court passed the motion to
this panel assigned to consider the merits of the appeal.
Having reviewed the record, it is apparent that the
motion is basically reiterated in the Board's brief before us.
The motion contains arguments for affirming the circuit court's
order, not arguments for dismissal of the appeal.
We therefore
deny the motion.
Before us on appeal, Sheckles reiterates his argument
before the circuit court, arguing that the Board proceeded
improperly in his request for reconsideration by not reviewing
his videotape documentation, and further that the circuit court
abused its discretion in dismissing his petition for writ of
mandamus.
We disagree.
The bottom line of Sheckles' argument before us is
that he was treated unfairly in his appeal to the Board because,
-5-
although he attached in his request for reconsideration the
videotape containing alleged "significant new evidence" as
required by the regulation, the Board did not consider the
videotape.
Sheckles' argument fails, however, as his sole
authority in support of his argument does not relate to the
screening process, but instead relates to the Board's conduct
after the screening process, when the screener grants the
inmate's request for reconsideration.
Sheckles cites us to 501
KAR 1:030 § 4, quoting specifically that portion that directs
that:
"The board shall vote after reviewing the initial taped
interview and the record."
A review of this portion of the
regulation reveals, however, that it pertains to the Board's
reconsideration which occurs after the request has made it past
the screening process.
Sheckles never got that far.
Furthermore, we fail to see how the circuit court
erred by dismissing Sheckles' petition for writ of mandamus.
When a party moves to dismiss a claim under Kentucky Rules of
Civil Procedure (CR) 12.02(f),5 "[t]he [circuit] court should not
grant the motion unless it appears the pleading party would not
5
Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim shall be
asserted in the responsive pleading thereto if one is required, except that
the following defenses may at the option of the pleader be made by motion: .
. . (f) failure to state a claim upon which relief can be granted . . . .
If, on a motion asserting the defense that the pleading fails to state a
claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
-6-
be entitled to relief under any set of facts which could be
proved in support of his claim."
Pari-Mutuel Clerks' Union v.
Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977).
"In
reaching its decision, the circuit court is not required to make
any factual determination; rather, the question is purely a
matter of law. Stated another way, the court must ask if the
facts alleged in the complaint can be proved, would the
plaintiff be entitled to relief?"
Bagby v. Koch, 98 S.W.3d 521,
522 (Ky.App. 2002).
In providing for an appeal of the denial of parole,
501 KAR 1:030 § 4(4) states:
An inmate whose parole is . . . denied by .
. . serve-out . . . may request an appellate
review by the board. A request for the
review shall be in writing . . . . The
request shall be screened by a board member
or his designee to decide if a review shall
be conducted. A review shall be conducted
for the following reasons:
(a) If there is an allegation of misconduct
by a board member that is substantiated by
the record;
(b) If there is a significant procedural
error by a board member; or
(c) If there is significant new evidence
that was not available at the time of the
hearing. A request based on the
availability of new evidence or information
shall be accompanied by adequate
documentation.
Emphasis added.
Assuming that Sheckles' videotape of his sentencing
provided the information he alleges, it did not rise to the
-7-
level of "significant new evidence that was not available at the
time of the hearing," as it had neither been unavailable at the
time of the hearing, nor did it constitute new evidence.
Additionally, the Board based its decision to deny on
several factors unchallenged by Sheckles.
Regardless of the
Board's notation on its decision to the "African head,"
handwritten over the phrase "deadly weapon or dangerous
instrument," the denial of Sheckles' parole was duly authorized
under 501 KAR 1:030 § 4.
For the foregoing reasons, the order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William A. Sheckles, Jr.,
pro se
Burgin, Kentucky
Holly Harris-Ray
Frankfort, Kentucky
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