HILLMAN (DOCK B.) VS. REES (JOHN D.)Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DOCK B. HILLMAN
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 07-CI-01270
JOHN D. REES, ET. AL.
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BEFORE: ACREE AND CAPERTON, JUDGES; ROSENBLUM,1 SPECIAL
ACREE, JUDGE: Dock Hillman appeals, pro se, from an order of the Franklin
Circuit Court dismissing his petition for a declaration of rights. Hillman sought to
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
compel the Department of Corrections to credit time spent on parole against his
imposed sentence after his parole was revoked. We affirm the circuit court’s
dismissal of the petition.
Hillman was released on parole on June 4, 2003, and arrested and
charged with violating his parole on October 25, 2004. He sought a declaration of
rights to compel the Department of Corrections to give him credit against service
of his sentence for the period between the beginning of his parole and June 30,
2004. The circuit court dismissed his petition, and this appeal followed.
Hillman raises two issues on appeal. The first concerns the
interpretation of legislation which temporarily allowed inmates on parole to
receive credit against their sentence, provided that their parole was not revoked for
commission of another felony. Secondly, he contends that the Commonwealth’s
interpretation of this legislation violates the constitutional prohibitions against ex
post facto laws. We disagree.
Ordinarily, time spent on parole “shall not count as a part of the
prisoner's maximum sentence except in determining [a] parolee's eligibility for a
final discharge from parole[.]” Kentucky Revised Statute (KRS) 439.344.
However, in 2003 the General Assembly sought to alleviate overcrowding of penal
institutions and to decrease the amount spent by the Commonwealth to incarcerate
offenders. Consequently, the biennial budget passed that year contained a
provision temporarily suspending the operation of KRS 439.344. House Bill
(H.B.) 269 §36(a) contained the following provision:
Probation and Parole Credit: 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.
2003 Ky. Acts, Ch. 156, Part IX, item 36(a), p. 1876. It is that provision which
Hillman seeks to employ to furnish the relief requested.
The Commonwealth argues that Hillman is ineligible for the relief
provided by H.B. 269 because his parole was revoked after the expiration date of
this bill on June 30, 2004. Hillman agrees that he was not arrested as a parole
violator until October 25, 2004. However, he contends that, since H.B. 269 §36(a)
was effective when his parole began, he was entitled to credit for time spent on
parole until the expiration of the legislation. It is undisputed that Hillman’s parole
was not revoked for commission of a new felony offense.
The Commonwealth argues that the language “when a parolee is
returned as a parole violator” governs eligibility for credit for time spent on parole
pursuant to H.B. 269 §36(a). Under the Commonwealth’s interpretation, the
provisions of H.B. 269 only apply to paroled inmates who were returned to prison
for a non-felony parole violation after the effective date of the legislation and
before the expiration of the 2003-04 budget on June 30, 2004. Any parolee
returned to prison outside the period of time when H.B. 269 was in effect would
not be entitled to credit for time spent on parole. Consequently, the
Commonwealth maintains that Hillman never became eligible for credit for time
spent on parole because the date for determining such eligibility, the date of his
return to prison, fell outside the prescribed time period.
Although there are no published cases on point, this Court has
previously considered the issue multiple times. In the case of Fredricks v.
Fletcher, WL 1491235 (Ky.App. 2005), we addressed the application of H.B. 269
to the sentence of an inmate who was paroled prior to the enactment of the
legislation, but charged with a non-felony parole violation while H.B. 269 was in
force.2 Although Fredricks’ parole was not actually revoked until after the
expiration of H.B. 269, he argued that he was entitled to credit against his sentence
for time spent on parole while the legislation was in force because he was charged
with violating his parole prior to its expiration date. This Court addressed the issue
and concluded as follows:
The relevant part of HB 269, which applies to this case,
[n]otwithstanding KRS 439.344, the period of time spent
on parole shall count as a part of the prisoner's remaining
unexpired sentence ... when a parolee is returned as a
parole violator for a violation other than a new felony
Pursuant to HB 269, a prisoner could only receive credit
for time spent on parole if he was returned to prison as a
parole violator for technical violations. Thus, only after
the Parole Board has actually revoked a prisoner's parole
and ordered him to be returned to prison, would a
prisoner have been entitled to the credit set forth in HB
269. So Fredricks was not entitled to credit for the time
he spent on parole, pursuant to HB 269, at the time he
Unpublished decision cited as persuasive authority pursuant to Kentucky Civil Rule
was charged with violating his parole, nor was he entitled
to that credit at the time his parole was revoked since the
provision had previously expired.
Fredricks, WL 1491235 at pg. 2. (Footnote omitted).
In Rees v. Miller, 2007 WL 2994633 (Ky.App. 2007), we considered
three cases dealing with the issue of whether sentence credit was due to inmates
who were revoked for non-felony parole offenses after the expiration of H.B. 269.
Two of the inmates were granted parole after the legislation first took effect, as
was Hillman. All three had their parole revoked after the June 30, 2004, expiration
date of the legislation. In each case, this Court determined that the inmates were
not eligible for any credit for the time spent on parole.
In response, Hillman claims that in “nearly all” of the unpublished
cases rendered by this Court, we have concluded that inmates on parole “did not
forfeit the earned credit up to June 30, 2004.” (Appellant’s reply brief at pg. 1).
This argument runs contrary to the reasoning articulated in Fredricks and Rees,
wherein we held that paroled inmates returned to prison after June 30, 2004, were
governed by the statutory prohibition, found in KRS 439.344, against earning any
sentence credit while on parole. We further note that Hillman has not cited us to
any unpublished decisions which support his contention, nor have we found any
decisions in the course of our own research. Consequently, the circuit court was
correct in dismissing Hillman’s petition for a declaration of rights.
Hillman’s second argument is that application of KRS 349.344 to
prohibit him from receiving sentence credit while on parole violates constitutional
prohibitions against ex post facto laws. He points out that H.B. 269 was in effect
when he was granted parole and claims that, because the legislation expired before
his parole revocation, he was subject to a punishment which was greater than that
meted out to paroled prisoners who were returned to prison before June 30, 2004.
Hillman contends that applying KRS 349.344 to his sentence was an ex post facto
violation because its prohibition on awarding sentence credit during an inmate’s
period on parole was temporarily suspended by the General Assembly. However,
his interpretation of the effect of H.B. 269 is simply incorrect. His punishment,
which was fixed at the time of his conviction, was not made greater by the
expiration of H.B. 269. Consequently, there was no ex post facto violation.
For the foregoing reasons, the order of the Franklin Circuit Court is
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Dock B. Hillman, pro se
Angela T. Dunham
Kentucky Justice & Public Safety