GOFF (DANNY) VS. REES (JOHN)
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RENDERED: JULY 11, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002327-MR
DANNY GOFF
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 07-CI-00888
JOHN REES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, VANMETER AND WINE, JUDGES.
ACREE, JUDGE: Danny Goff appeals, pro se, from an order of the Franklin
Circuit Court denying his petition for declaration of rights regarding the
Department of Corrections’ denial of meritorious good time credited against his
twenty-year sentence. We affirm.
Goff received a twenty-year sentence in 1996 after he was convicted
of two counts of incest. Kentucky Revised Statute (KRS) 197.045, which governs
credit for good conduct and meritorious service, among other things, was amended
in 1998 to require sex offenders to successfully complete the sex offender
treatment program prior to being eligible for good time. KRS 197.045(4).
Because Goff was convicted prior to the enactment of this amendment, its
provisions do not apply to calculation of his statutory good time credit. Goff
apparently stopped receiving meritorious good time credit sometime in 2000. He
filed a petition for a declaration of rights in 2007, alleging that the Department of
Corrections was unlawfully denying him meritorious good time credit. Goff
claimed that all inmates convicted of sexual offenses were being denied
meritorious good time, regardless of the date of conviction. The circuit court
dismissed the petition, finding that the award of meritorious good time credit was
discretionary. Anderson v. Parker, 964 S.W.2d 809, 810 (Ky.App. 1997). This
appeal followed.
On appeal, Goff argues that the circuit court erroneously failed to
consider his liberty interest and violation of due process claims before dismissing
his petition. The circuit court’s order noted that Goff claimed he was being denied
meritorious good time credit because he failed to complete the offender treatment
program. (Goff cannot be admitted to the program because of his refusal to admit
that he committed the offenses of which he was convicted.) The circuit court
found that KRS 197.045(4) does exempt a sex offender convicted prior to the
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enactment of the amendment from being required to complete the program prior to
earning statutory good time credit. Indeed, subsection (4) of the statute states
that a sex offender “who does not complete the sex offender treatment program for
any reason shall serve his entire sentence without benefit of good time, parole, or
other form of early release.” Goff had twice been considered for parole, in 2000
and 2007. Thus, the Department of Corrections clearly is not applying KRS
197.045(4) to his sentence.
KRS 197.045(3) gives the Department of Corrections the discretion to
award an additional five days per month meritorious good time credit to an inmate
for “performing exceptionally meritorious service or performing duties of
outstanding importance in connection with institutional operations and programs.”
Goff makes no claim that he has done anything since 2000 to earn such meritorious
good time credit under the statute. Instead, he claims that previous awards of such
credit created a protected liberty interest in his continuing to receive these awards.
This Court has previously considered the argument that an inmate has a protected
interest in the awarding of meritorious good time credit.
This is not a case where the state has created a
right to a good time credit which has not been awarded or
taken from an inmate for misconduct. See, Wolff v.
McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974); Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995). In such cases Fourteenth
Amendment “liberty” is implicated entitling inmates to
minimum procedures required by the due process clause
to insure that the state-created right is not arbitrarily
abrogated. No inmate has a right to meritorious good
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time under CPP 15.3, it is a privilege bestowed at the
discretion of the Commissioner.
Because the award of meritorious good time under
CPP 15.3 is left entirely to the discretion of prison
administrators, we hold inmates such as appellant have
no protected liberty interest at stake in its' [sic] denial.
Anderson, 964 S.W.2d at 810 (Emphasis in original). Consequently, since Goff
has shown no right to receive meritorious good time credit, the circuit court
correctly dismissed Goff’s petition.
Goff also argues on appeal that the Department of Corrections failed
to properly calculate his statutory good time credit under KRS 197.045(1). As the
Department of Corrections points out, this issue was not preserved for appellate
review. The circuit court’s order stated clearly that Goff’s petition did not claim he
was denied statutory good time. We have examined the petition carefully, and we
agree. Because Goff did not raise the issue before the circuit court, we are unable
to consider it on appeal. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.
1976).
We note briefly that Goff claims he did, in fact, raise this issue before
the circuit court and that he was not permitted sufficient time to reply to the
Department of Corrections’ motion to dismiss his petition. The extent to which
Goff’s petition allegedly raised any issues concerning calculation of his statutory
good time credit pursuant to KRS 197.045(1) is found in the conclusion of his
petition wherein he states the following:
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Wherefore, the petitioner prays this court will in the
interest of justice and fundamental fairness, issue an
order to the KYDOC, to reinstate all petitioners [sic]
good time that he is entitled to.
Given that the entirety of the petition preceding this conclusion addresses the
failure to award meritorious good time, and that statutory good time is never
explicitly mentioned, we disagree with Goff’s contention that he asked the circuit
court to correct any perceived miscalculation in the amount of statutory good time
to which he was entitled. Further, the Department of Corrections’ response to his
petition exclusively addresses the issue of Goff’s alleged right to receive
meritorious good time. Consequently, we fail to perceive how any reply timely
made by Goff would have altered the circuit court’s decision.
For the foregoing reasons, the judgment of the Franklin Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Danny Ray Goff, pro se
West Liberty, Kentucky
Brenn O. Combs
Kentucky Justice & Public Safety
Cabinet, Office of Legal Services
Frankfort, Kentucky
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