LARRY E. WATKINS-EL v. KENTUCKY PAROLE BOARD
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RENDERED: JUNE 30, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2005-CA-001014-MR
LARRY E. WATKINS-EL
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 05-CI-00040
KENTUCKY PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND MINTON, JUDGES.
KNOPF, JUDGE:
Larry E. Watkins-El appeals from an order of the
Franklin Circuit Court denying his petition for a writ of
mandamus against the Kentucky State Parole Board to order his
release on parole.
We find that the circuit court properly
denied the petition as the Parole Board acted within its
discretion to revoke his parole and there were no circumstances
warranting extraordinary relief from the Parole Board’s
decision.
Hence, we affirm.
In 1986, Watkins-El was convicted of assault in the
first degree, possession of a handgun by a convicted felon, and
being a first degree persistent felony offender.
life sentence.
He received a
In 1988, Watkins-El committed the crime of
escape in the second degree, and received a one-year sentence to
run concurrently with his previous convictions.
Board granted Watkins-El’s parole.
In 1996, the
Subsequently, the Board
revoked Watkins-El’s parole, and then reinstated his parole in
August 2002.
At that time, Watkins-El agreed not to use or
possess alcoholic beverages, volatile substances, or controlled
substances unless prescribed to him by a licensed physician.
After a February 2003, arrest, Watkins-El admitted to
violating these terms in December 2002.
Watkins-El’s parole
officer agreed not to move to revoke parole based on these
violations provided that Watkins-El would admit his guilt, spend
sixty days in a halfway house, and not commit any other parole
violations.
Watkins-El satisfied the first two terms, but in
July 2003, he tested positive for cocaine.
Nevertheless, his
parole officer again agreed not to move to revoke parole if
Watkins-El admitted the violation and voluntarily entered a
substance-abuse treatment program.
Pursuant to this agreement, Watkins-El was admitted to
the treatment program.
But shortly thereafter, he was arrested
on new charges of fourth degree assault and criminal mischief.
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Although the charges were ultimately dismissed, the Board moved
to revoke Watkins-El’s parole based upon his other violations.
The presiding administrative law judge used Watkins-El’s
admissions of guilt to the two December 2002 counts of alcohol
usage and the July 2003 count of cocaine usage to support the
parole revocation.
On September 16, 2003, the Board voted to
revoke Watkins-El’s parole based upon those findings.
The Board
also voted to grant Watkins-El a twenty-eight month deferment.
In response, Watkins-El filed a petition for writ of
mandamus in the Franklin Circuit Court.1
The court granted the
writ, finding that the Board was estopped to rely on the
December 2002 and July 2003 violations based upon Watkins-El’s
agreements with his parole officer.
Following entry of that
order in April 2004, Watkins-El was released and sought to be
readmitted to a substance abuse treatment program.
But in
separate urine tests taken on July 15 and August 12, 2004,
Watkins-El again tested positive for cocaine and alcohol use.
Based on these violations, Watkins-El was arrested on September
10, 2004, and the Board subsequently revoked his parole.
Watkins-El then filed this second petition for writ of
mandamus in Franklin Circuit Court.
He alleged that his parole
officer interfered with his attempt to be readmitted into the
1
Larry E. Watkins v. Kentucky Parole Board, No. 03-CI-01549 (Franklin Cir.
Ct.).
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treatment program, and that the Board violated his due process
rights by revoking his parole.
Watkins-El and the Board filed
cross-motions for summary judgment, and the circuit court
granted the Board’s motion on May 5, 2005.
Watkins-El now
appeals to this Court.
Kentucky courts have repeatedly held that
there is no constitutional right to parole,
but rather parole is a matter of legislative
grace or executive clemency. Fowler v.
Black, Ky., 364 S.W.2d 164 (1963); Belcher
v. Kentucky Parole Board, Ky.App., 917
S.W.2d 584 (1996); Lynch v. Wingo, Ky.App.,
425 S.W.2d 573 (1968). Parole is simply a
privilege and the denial of such has no
constitutional implications. Morris v.
Wingo, Ky., 428 S.W.2d 765 (1968); Tiryung
v. Commonwealth, Ky.App., 717 S.W.2d 503
(1986).2
In Watkins-El’s prior petition, the circuit court
found that the Board was estopped to rely on Watkins-El’s
admitted violations based upon his substantial performance of
the agreements with his parole officer.
But in the current
case, Watkins-El does not allege that any agreement precluded
the Board’s use of his July and August 2004 violations as a
basis to revoke his parole.
Rather, he asserts that his parole
officer refused to approve Watkins-El’s re-admission to the
treatment program in retaliation for Watkins-El’s having
successfully challenged his prior parole revocation.
2
Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).
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Thus, he
contends that the Board acted in bad faith and in violation of
the circuit court’s prior order.
However, the Board found that Watkins-El’s parole
officer refused to approve Watkins-El’s readmission to the
treatment program after he had tested positive for use of
cocaine and alcohol.
After these positive tests, the parole
officer directed Watkins-El to appear for a substance abuse
treatment assessment, but Watkins-El failed to appear or call to
reschedule.
These findings, which are supported by substantial
evidence, refute Watkins-El’s claims of bad faith on the part of
the parole officer or the Board.
Furthermore, we find no merit to Watkins-El’s claims
that the parole revocation proceedings denied his due process
rights.3
Watkins-El asserts that his parole officer failed to
advise him of the consequences of missing the assessment
meeting.
Such a failure to notify him does not reach the level
of a due process violation.
And even if it did, Watkins-El’s
other violations provided more than sufficient justification for
3
See Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484
(1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d
656 (1973), setting forth the minimum requirements of due process in parole
revocation proceedings: (1) written notice of the claimed violations of
probation; (2) disclosure to the probationer of the evidence against him;
(3) opportunity to be heard in person and to present witnesses
and documentary evidence; (4) the right to confront and cross-examine adverse
witnesses, unless the hearing officer specifically finds good cause for not
allowing confrontation;(5) a neutral and detached hearing body; and (6) a
written statement by the fact-finder as to the evidence relied on and the
reasons for revoking parole. Gagnon, 411 U.S. at 786, 93 S. Ct. at 1762.
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revoking his parole.
As the circuit court noted in this case,
the Parole Board was well within its discretion to use these and
prior violations to revoke Watkins-El’s parole.
Consequently,
the circuit court properly dismissed his petition.
Accordingly, the order of the Franklin Circuit Court
dismissing the petition for writ of mandamus is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
No brief for appellee
Kentucky Parole Board.
Larry E. Watkins-El, pro se
Kentucky State Penitentiary
Eddyville, Kentucky
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