CAVENDER (EMORY JOHNNY) VS. MUDD (CAROLINE), ET AL.
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001988-MR
EMORY JOHNNY CAVENDER
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-01233
CAROLINE MUDD, CHAIRPERSON,
KENTUCKY STATE PAROLE BOARD;
LADONNA THOMPSON, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS;
COMMONWEALTH OF KENTUCKY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Emory Johnny Cavender, proceeding pro se, appeals
from a judgment of the Franklin Circuit Court denying his petition for a writ of
1
Senior Judge Michael L. Henry 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.
mandamus. The petition was filed after the Kentucky Parole Board denied his
request for parole and ordered him to serve out the remainder of his life sentence.
After our review, we affirm.
Cavender is a 48-year-old inmate who is serving a life sentence for
murder. He became eligible for parole on February 1, 2008, and was subsequently
interviewed by the Kentucky Parole Board. On February 11, 2008, the Parole
Board notified Cavender that his request for parole was denied and that he was to
serve out the remainder of his sentence because of: (1) the seriousness of the crime
leading to his conviction; (2) the fact that a life was taken during the commission
of the crime; and (3) the fact that a deadly weapon was used. On February 29,
2008, the Parole Board denied Cavender’s request for reconsideration of its
decision.2
On July 29, 2008, Cavender filed a “Petition for a Writ of
Prohibition/Mandamus” in the Franklin Circuit Court in which he asked the court
to award him another hearing before the Parole Board. Cavender specifically
contended that by denying his request for parole and by ordering him to serve out
the remainder of his sentence, the Parole Board improperly superseded the jury’s
decision to sentence him to life in prison with a “possibility of parole.” He also
contended that the Parole Board based its decision on incorrect information and
that the decision constituted an ex post facto violation.
2
We note that the administrative record of the Parole Board was not made part of the record on
appeal. However, the parties agree on the procedural facts provided above.
-2-
On October 13, 2008, the circuit court dismissed Cavender’s petition
on the grounds that it failed to state a claim for which relief could be granted.
Cavender subsequently filed a motion asking the circuit court to alter, amend, or
vacate its order of dismissal pursuant to Kentucky Rules of Civil Procedure (CR)
59.05. He also filed an alternative motion asking the court to enter findings of fact
and conclusions of law to support its decision. The circuit court denied Cavender’s
CR 59.05 motion in an order entered on October 22, 2008, on the grounds that
“[d]ecisions of the Kentucky Parole Board are not reviewable.” The court also
denied Cavender’s motion for findings of fact and conclusions of law on the
grounds that the motion was improperly brought because the “matter was
dismissed before trial.” This appeal followed.
On appeal, Cavender again argues that the Parole Board improperly
superseded the jury’s decision to sentence him to life in prison with a “possibility
of parole” by denying his request for parole and by ordering him to serve out the
remainder of his sentence. He also once again argues that the Parole Board’s
decision to deny his parole request was based on inaccurate information and that
the decision constituted an ex post facto violation.
We note at the outset that the circuit court’s determination that
“[d]ecisions of the Kentucky Parole Board are not reviewable” is not a completely
correct statement of the law. KRS 439.330(3) expressly provides that orders of the
Parole Board are reviewable to ensure compliance with the terms of KRS 439.250
to 439.560. Accordingly, in Willard v. Ferguson, 358 S.W.2d 516 (Ky. 1962), the
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former Court of Appeals held that this statute provided a limited right of review as
to “questions of compliance with the parole act.” Id. at 517. The Supreme Court
of Kentucky reiterated this holding in Stewart v. Commonwealth, 153 S.W.3d 789
(Ky. 2005), noting: “The judicial standard of review of decisions of the Parole
Board is limited to an examination of compliance with the terms of KRS 439.250
to 439.560.” Id. at 791. With this said, we believe that the circuit court’s decision
to dismiss Cavender’s petition was ultimately the correct one because the petition
raised no meritorious claims for relief on its face.
Kentucky courts have long held that the Commonwealth’s statutes and
regulations with respect to parole “have not elevated parole to a liberty interest in
which inmates have a legitimate claim of entitlement. In Kentucky, parole is a
matter of legislative grace.” Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 587
(Ky. App. 1996). “Parole is simply a privilege and the denial of such has no
constitutional implications.” Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky.
1999); see also Morris v. Wingo, 428 S.W.2d 765, 765 (Ky. 1968) (citation
omitted). In terms of due process, all that is required “in the parole review process
when parole is denied is that the prisoner have the opportunity to be heard and that
he be advised in general terms of the reason for the decision of the Board.”
Stewart v. Commonwealth, 153 S.W.3d 789, 791 (Ky. 2005).
In this case, Cavender was advised of the reasons for the decision of
the Parole Board and had the opportunity to be heard. Therefore, his due process
rights have been satisfied. Id. However, as noted above, Cavender contends that
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the Board acted contrary to law and usurped the province of the jury – which
sentenced him to prison with the “possibility of parole” – by ordering him to serve
out the remainder of his sentence. This argument lacks merit. 501 Kentucky
Administrative Regulations (KAR) 1:030 § 3(1)(f) provides that “[a]fter the initial
review for parole, a subsequent review, during confinement, shall be at the
discretion of the board . . . . The board shall reserve the right to order a serve-out3
on a sentence.” 501 KAR 1:030 § 4(4) further provides that an inmate’s request
for parole may be denied “by deferment or serve-out.” Thus, Kentucky law clearly
reflects that under the circumstances at hand an inmate is entitled to only one
initial review for parole. Whether to allow for another review in the future or to
order a serve-out is a decision fully within the sound discretion of the Parole Board
– even in instances involving life sentences. Simmons v. Commonwealth, 232
S.W.3d 531, 535 (Ky. App. 2007). Thus, the Parole Board did not act contrary to
law by ordering Cavender to serve out the remainder of his sentence once it denied
his request for parole.
Cavender attempts to rebut this conclusion by raising a general
contention that the Parole Board exercised power belonging to the judicial and
legislative branches of government, thereby violating the “separation of powers”
doctrine. However, “[i]t is well-recognized in Kentucky that the power to grant
parole is purely an executive function.” Id.; see also Commonwealth v. Cornelius,
3
501 KAR 1:030 defines a “serve-out” as “a decision of the board that an inmate shall serve
until the completion of his sentence.” 501 KAR 1:030 § 1(13).
-5-
606 S.W.2d 172, 174 (Ky. App. 1980) (“It has been settled for many years that the
decision as to whether a person serving a sentence of imprisonment should be
paroled is an executive function, not a judicial one[.]”). Accordingly, the Parole
Board was within the bounds of its discretionary powers in denying parole to
Cavender and in ordering him to serve out the remainder of his life sentence.
Simmons, 232 S.W.3d at 535. We therefore cannot say that the Parole Board
exceeded its authority and invaded the functions reserved for the judiciary or the
General Assembly. Id.
Cavender also contends that the Parole Board’s decision was tainted
because the Board was provided with, and relied upon, inaccurate information. In
support of this argument, Cavender cites only to an alleged exchange during his
parole hearing in which a Board member asked him if he had lost 870 days of
good-time credit even though persons sentenced to life in prison do not receive any
such credit. Because Cavender has failed to include a recording of this hearing in
the record, we must assume that it supports the decision below. See Roberts v.
Fayette County Bd. of Educ., 173 S.W.3d 918, 923 (Ky. App. 2005). Moreover,
Cavender acknowledged in his petition that this apparent misconception by the
Board member was clarified by another person in the room during the hearing.
Therefore, Cavender’s argument that the Board’s decision was based on inaccurate
information lacks merit and must also be rejected.
Cavender also argues that the Parole Board’s decision requiring him
to serve out the remainder of his life sentence violated the constitutional
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prohibition against ex post facto laws, i.e., it retroactively increased his punishment
after his conviction. This argument also lacks merit because we have previously
held that the imposition of a serve-out on a life sentence is not punishment
prohibited under ex post facto principles because it does not actually enhance or
lengthen an inmate’s sentence. Simmons, 232 S.W.3d at 534-35. Thus, this
argument must also be rejected.
Cavender’s remaining arguments are too vague to address and/or were
not properly preserved below. Thus, they do not merit further attention. The
judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
JOINT BRIEF FOR APPELLEES:
Emory Johnny Cavender, pro se
LaGrange, Kentucky
Wesley W. Duke
Justice and Public Safety Cabinet
Office of Legal Services
Frankfort, Kentucky
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