STEVE BASKERVILLE v. THOMAS L. SIMPSON, WARDEN; AND JOHN REES, COMMISSIONER FOR THE DEPARTMENT OF CORRECTIONS
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RENDERED: JULY 21, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001045-MR
STEVE BASKERVILLE
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 05-CI-00022
v.
THOMAS L. SIMPSON, WARDEN; AND
JOHN REES, COMMISSIONER FOR THE
DEPARTMENT OF CORRECTIONS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Steve Baskerville, pro se, has appealed from
the April 25, 2005, order and judgment of the Lyon Circuit Court
denying and dismissing his petition for declaratory judgment.
Baskerville’s petition sought sentence credit for time he spent
on parole from August 18, 2003, to September 3, 2004.
1
Having
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
concluded that the circuit court correctly applied the law to
the facts of this case, we affirm.
Baskerville was sentenced to 20 years in prison by the
Todd Circuit Court in September 1986 under Indictment No. 86-CR010 which charged him with kidnapping and assault in the first
degree.
In September 1996 Baskerville was released on parole
until October 2001, when his parole was revoked following his
conviction on at least two new felonies in Muhlenberg Circuit
Court.
He was sentenced to two years’ imprisonment by the
Muhlenberg Circuit Court to run consecutively to the remainder
of his sentence from the Todd Circuit Court.
On August 18, 2003, Baskerville was again released on
parole.
He was subsequently arrested on May 6, 2004, in
Christian County, Kentucky, for driving under the influence2 and
operating a motor vehicle without a license.3
After being
released on bail on May 7, 2004, Baskerville contacted his
parole officer and advised her of his arrest.
He was told to
report to the parole officer on May 9, 2004, and was then placed
under arrest by the parole officer for alleged violation of his
parole conditions.
2
KRS 189A.010.
3
KRS 186.410.
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On May 12, 2004, Baskerville’s parole officer provided
him with a notice of a preliminary parole revocation hearing.4
At the same time, Baskerville waived his right to a preliminary
revocation hearing before an Administrative Law Judge to
determine if probable cause existed that he had violated his
parole.5
Following Baskerville’s waiver of the preliminary
revocation hearing, the matter was referred to the Kentucky
Parole Board which on May 21, 2004, issued a parole violation
warrant for Baskerville.6
On September 3, 2004, the Kentucky
Parole Board formally revoked Baskerville’s parole.
Baskerville
was given a credit of three months and 25 days toward the
remainder of his sentence after his parole was revoked.
This
credit was calculated from May 12, 2004, when he waived the
preliminary revocation hearing through September 3, 2004, when
Baskerville’s parole was formally revoked.
Baskerville then filed a petition for a declaration of
rights in the circuit court alleging that he was entitled to an
additional eight months and 20 days credit on his sentence for
time that he was actually released on parole.
As the basis for
his claim, Baskerville relied upon a provision of the 2003
4
501 Kentucky Administrative Regulations (KAR) 1:040(1).
5
See KRS 439.341; and 501 KAR 1:040(6)(a).
6
KRS 439.330(1)(e).
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Kentucky State/Executive Branch budget7 which modified KRS
439.344 as follows:
Notwithstanding KRS 439.344, the period
of time spent on parole shall count as a part
of the prisoner’s remaining unexpired
sentence, when it is used to determine a
parolee’s eligibility for a final discharge
from parole as set out in KRS 439.354, or
when a parolee is returned as a parole
violator for a violation other than a new
felony conviction [emphasis added].
This credit provision applied only to parolees who were returned
to prison for violations other than new felony convictions after
the effective date of the legislation, April 1, 2003, through the
expiration of the 2003/2004 budget on June 30, 2004.
Baskerville contends that he was “returned as a parole
violator” when he waived the preliminary revocation hearing and
the Kentucky Parole Board issued the parole violation warrant on
May 21, 2004.
Because his parole was not revoked on the basis of
a new felony conviction, he contends that he is entitled to a
credit for the entire time he spent on parole toward the
unexpired portion of his sentence.
The circuit court held that
Baskerville was not “returned as a parole violator” until the
Parole Board formally revoked his parole on September 3, 2004,
and, therefore, he was not entitled to the “street time” credit
because the provision expired on June 30, 2004.
7
2003 Kentucky Acts Chapter 156, Part IX, Section 36(a).
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We agree.
The construction and application of statutes is a
matter of law subject to de novo review.8
When interpreting a
statute, we must “ascertain and give effect to the intent of the
General Assembly.”9
“A fundamental rule of statutory
construction is to determine the intent of the legislature,
considering the evil the law was intended to remedy.”10
In
addition, it is well-established that the words used in a statute
are to be given their plain and ordinary meaning.11
A court may
refer to a dictionary to ascertain the plain and ordinary meaning
which the Legislature intended to ascribe to the term.12
Prior to the enactment and after the expiration of the
2003 budget, credit for time spent on parole was and is
prohibited.13
The plain meaning of the language used in the 2003
modification of KRS 439.344 is clear that the credit only applies
when parole has been officially revoked.
Under Kentucky law,
parole is not revoked until the Parole Board holds a final parole
revocation hearing.14
Despite Baskerville’s contention that his
8
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, 983
S.W.2d 488, 490 (Ky. 1998).
9
Commonwealth v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000).
10
Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996).
11
Harrelson, 14 S.W.3d at 547.
12
See Young v. Commonwealth, 968 S.W.2d 670, 672 (Ky. 1998).
13
KRS 439.344.
14
501 KAR 1:040, Section 6, states as follows:
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parole was revoked when he waived the preliminary revocation
hearing and the Parole Board issued a parole violation warrant,
the Parole Board still maintained discretion to continue
Baskerville on parole, to modify the terms and conditions of
parole, or to revoke parole.
The waiver of the preliminary revocation hearing in
this matter simply had the effect of establishing that there was
probable cause that a violation had occurred.
Pursuant to 501
KAR 1:040(7), the determination by the ALJ that there was
probable cause that a violation occurred is merely an advisory
for the Parole Board to use in making its final decision.
(a)
At the close of the hearing, or within a
reasonable time thereafter, the
administrative law judge shall make a
determination, from the evidence produced
at the hearing, as well as any evidence
of which judicial notice is taken,
whether there exists probable cause to
believe that the parolee has committed
any or all of the violations alleged in
the notice of preliminary hearing.
(b)
Except as provided by paragraph (c) of
this subsection, if probable cause is
found to exist, the case shall then be
referred to the Parole Board which shall
then issue a parole violation warrant
which shall cause the parolee to be
brought before the Parole Board for a
final parole revocation hearing.
(c)
Notwithstanding a finding of probable
cause, leniency may be granted in any
form deemed appropriate by the
administrative law judge if all parties
agree to the leniency, and if the parolee
agrees to any additional conditions of
his parole as set forth by the
administrative law judge after
consultation with the parole officer.
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Likewise, the waiver of the preliminary hearing and subsequent
finding that probable cause existed required the issuance of the
parole violation warrant bringing Baskerville before the Parole
Board for the final revocation hearing.15
Neither of these
events had the effect of returning Baskerville to custody as a
parole violator as required for the application of the 2003
modification of KRS 439.344.
Baskerville was not returned as a
parole violator until the Parole Board’s final decision issued on
September 3, 2004.
Because the 2003 modification of KRS 439.344
had expired on June 30, 2004, it was not applicable to
Baskerville.
Based upon the foregoing, the order and judgment of the
Lyon Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Steve Baskerville, Pro Se
Central City, Kentucky
Brenn O. Combs
Frankfort, Kentucky
15
501 KAR 1:040, Section 3(1).
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