Opinion
NO. 2013-CA-000304-MR
01-31-2014
LAURA A. CHASE APPELLANT v. LADONNA H. THOMPSON APPELLEE
BRIEFS FOR APPELLANT: Meggan Smith LaGrange, Kentucky BRIEF FOR APPELLEE: Linda M. Keeton Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS WINGATE, JUDGE
ACTION NO. 12-CI-01488
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Laura A. Chase appeals from the January 3, 2012, order of the Franklin Circuit Court. That order dismissed Chase's complaint against LaDonna H. Thompson, in her official capacity as Commissioner of the Kentucky Department of Corrections ("DOC"), in which Chase alleged that her parole eligibility had been calculated improperly. Because we hold that the trial court did not err when it dismissed Chase's complaint, we affirm.
The underlying facts of this case are not in dispute. In 2010, Chase was convicted of manufacturing methamphetamine and sentenced to eleven years' imprisonment. In 2011, while serving her sentence, Chase escaped from the Kentucky Correctional Institute for Women and committed additional felonies. Chase was thereafter convicted of one count each of: theft by unlawful taking or disposition greater than $10,000; second-degree escape; and first-degree criminal mischief. She was sentenced to five years for each conviction, to be served consecutively with her previous sentence, but concurrently with each other, giving her a total sentence of sixteen years.
On November 27, 2012, Chase filed a complaint with the Franklin Circuit Court in which she sought a declaratory judgment that the DOC was improperly calculating her parole eligibility. Thompson filed a response and motion to dismiss Chase's complaint for failure to state a claim upon which relief can be granted, pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f). On January 3, 2013, the motion was granted and Chase's complaint was dismissed. This appeal followed.
A court should not grant a motion to dismiss for failure to state a claim upon which relief may be granted "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). "[T]he pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true." Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009). Because the issue is a pure question of law, this Court owes no deference to the trial court's determination and we therefore review the issue de novo. Id.
Chase first argues that dismissal of her complaint was improper because she is entitled to relief from the DOC's miscalculation of her parole eligibility. We disagree. There is no dispute that the Kentucky Parole Board is vested with the authority to determine parole eligibility. Kentucky Revised Statutes (KRS) 439.340(3)(b). Chase argues that her parole eligibility should be calculated under 501 Kentucky Administrative Regulations (KAR) 1:030 Section 3(1), which calculates parole eligibility based on aggregate servable sentence. Based on the amount of Chase's sentence, she would be eligible for parole after serving 20% of her sentence. Id. Chase therefore argues that she is only required to serve 20% of sixteen years before becoming eligible for parole. However, as Thompson points out, Chase's parole eligibility is further governed by 501 KAR 1:030 Section 3(4)(a), which states, in relevant part:
[for] a sentence for a crime committed while on an escape, the total parole eligibility shall be set by adding the following, regardless of whether the sentences are ordered to run concurrently or consecutively:(Emphasis added). Because Chase's additional sentences were for crimes committed while on escape, her parole eligibility is determined by adding all of her sentences together, for a total period of twenty-six years (eleven + five + five + five). Therefore, Chase would not be eligible for parole until she has served twenty percent of twenty-six years, or a little more than five years. Chase's maximum servable sentence of sixteen years is unchanged by her parole eligibility calculation and vice versa.
1. The amount of time to be served for parole eligibility on the original sentence;
2. If the inmate has an additional sentence for escape, the amount of time to be served for parole eligibility on the additional sentence for the escape;
3. If the inmate has an additional sentence for a crime committed while in the institution, the amount of time to be served for parole eligibility on the additional sentence for the crime committed while in the institution; and
4. If the inmate has an additional sentence for a crime committed while on escape, the amount of time to be served for parole eligibility on the additional sentence for the crime committed while on escape.
Chase further argues that the application of 501 KAR 1:030 Section 3(1)(a) violates the ex post facto clauses of the United States and Kentucky Constitutions. Again, we disagree. "[T]he ex post facto prohibition . . . forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Martin v. Chandler, 122 S.W.3d 540, 549 (Ky. 2003). There is no denying that retroactive changes in the laws governing parole might violate the ex post facto clause. However, the language contained in 501 KAR 1:030 Section 3(4)(a) has been present in the regulation, albeit in a different subsection, since 2001. Therefore, the parole eligibility calculations were in effect at the time of Chase's 2008 and 2011 "act[s] to be punished" and thus do not incite an ex post facto violation. Martin, 122 S.W.3d at 549. Because there is no way in which Chase could have been entitled to relief, we find no error with the trial court's dismissal of the complaint.
For the foregoing reasons, the January 3, 2012, order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Meggan Smith
LaGrange, Kentucky
BRIEF FOR APPELLEE: Linda M. Keeton
Frankfort, Kentucky