Opinion
NO. 2017-CA-000009-MR
10-20-2017
PHILLIP JOHNSON APPELLANT v. AARON SMITH, WARDEN KENTUCKY STATE REFORMATORY; AND KENTUCKY PAROLE BOARD APPELLEES
PETITION FOR APPELLANT: Timothy G. Arnold Department of Public Advocacy Frankfort, Kentucky RESPONSE FOR APPELLEES: Amy V. Barker Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE, KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00012 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Phillip Johnson brings this appeal from a November 1, 2016, order of the Oldham Circuit Court denying his petition for writ of habeas corpus. We affirm.
Phillip Johnson was first committed to the custody of the Kentucky Department of Corrections in 1981 to serve a twenty-year sentence of imprisonment. Johnson was eventually granted parole in 1987. After being paroled, Johnson resided in Louisiana, and his parole was supervised by parole officials in Louisiana. In 1999, Johnson was convicted of rape in Louisiana and sentenced to fifteen-years' imprisonment. As a result of Johnson's conviction in Louisiana, the Kentucky Parole Board (Board) issued a parole violation warrant on December 20, 1999. After Johnson served his sentence of imprisonment in Louisiana, Johnson was transferred to the custody of the Kentucky Department of Corrections on December 18, 2013. On January 16, 2014, the Board revoked Johnson's parole as a result of the 1999 conviction in Louisiana.
On January 7, 2016, Johnson filed a petition for a writ of habeas corpus in Oldham Circuit Court asserting that his continued incarceration upon the twenty-year sentence of imprisonment was unlawful. Specifically, Johnson argued that he was entitled to a mandatory final discharge from parole in 1997, well before the 1999 conviction in Louisiana. Johnson essentially contends that he served his parole term before violating the conditions thereof. Alternatively, Johnson seeks custody credit on the twenty-year sentence for the time he spent incarcerated in Louisiana. By order entered November 1, 2016, the Oldham Circuit Court rejected both of Johnson's arguments and denied his petition for writ of habeas corpus. This appeal follows pursuant to Kentucky Revised Statutes (KRS) 419.130.
A writ of habeas corpus is constitutionally embodied in Section 16 of the Kentucky Constitution and is presently codified in KRS 419.020. The sole purpose of a habeas corpus proceeding is to determine whether the person detained is entitled to immediate release from detention. Hudson v. Com., 932 S.W.2d 371 (Ky. 1996); Graham v. O'Dea, 876 S.W.2d 621 (Ky. App. 1994). Habeas corpus relief should be granted only where there is an illegal detention that warrants immediate relief.
Johnson initially argues that he was entitled to a mandatory final discharge from parole in 1997 pursuant to 501 Kentucky Administrative Regulations (KAR) 1:015, as that regulation existed in 1987. Johnson points out that under 501 KAR 1:015 he was entitled to final discharge from parole as early as April 1994 and upon the Board's receipt of a report from a parole officer outlining his activities while on parole. Johnson alleges that the Board received such a report on February 25, 1997, from a Louisiana parole officer, thus entitling him to final discharge from parole in 1997.
Throughout this Opinion, we shall refer to the version of 501 Kentucky Administrative Regulations (KAR) 1:015 effective in 1987. 501 KAR 1:015 was repealed and replaced in 1988 by 501 KAR 1:050, which is not material to our review. We do not reach the issue of the constitutionality of this regulation in this case. See Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2006). --------
We begin by setting forth the language of 501 KAR 1:015:
On sentences greater than five (5) years up to and including a life sentence, the parolee shall be entitled to a
final discharge from parole upon the receipt, by the Board, of a full report of the parolee's activities while on parole from the parole officer, assuming clear conduct from the date of parole release, upon service on parole of one-half (1/2) of the time remaining from his parole release date to his maximum expiration date, or ten (10) years, whichever is shorter.Under the plain language of 501 KAR 1:015, a parolee is only entitled to final discharge from parole upon the Board's receipt "of a full report of the parolee's activities." The February 25, 1997, report cannot be considered a full report of Johnson's activities while on parole within the meaning of 501 KAR 1:015. Rather, the February 25, 1997, report merely states that Johnson's progress and conduct were satisfactory, he had no arrests, and he reported monthly. In total, the February 25, 1997, report outlining Johnson's activities consisted of a mere four sentences. The February 25, 1997, report also failed to set forth Johnson's activities during the entire parole period. We, thus, conclude that the February 25, 1997, report did not constitute a full report under 501 KAR 1:015; hence, Johnson was not entitled to final release from parole in 1997.
Alternatively, Johnson seeks custody credit on his twenty-year sentence for the time he spent incarcerated in Louisiana. Johnson maintains that a custody credit of fifteen years should be applied to his twenty-year sentence in Kentucky, thus entitling him to immediate release. Johnson relies on KRS 439.352, which provides:
Recommitment of a parolee to prison on a new sentence received for commission of a crime while on parole shall automatically terminate his parole status on any sentence on which he has not received a final discharge, or a restoration of civil rights, prior to the date of recommitment. The prisoner shall, at the time of the recommitment on the new sentence, begin to accrue additional time credit toward conditional release or expiration of sentence on the sentence on which he had previously been paroled unless he has been finally discharged from parole on the sentence of has been resorted to civil rights prior to the date of recommitment.
Johnson's reliance upon KRS 439.352 is misplaced for two reasons. First, our Court has plainly held that "before a parolee can be given credit for time served on a Kentucky sentence after his parole has been revoked, the parolee must be within the custody of Kentucky." O'Conner v. Schneider, 117 S.W.3d 666, 670 (Ky. App. 2003) (citing Anglian v. Sowders, 566 S.W.2d 789 (Ky. App. 1978)). As Johnson was incarcerated in Louisiana and not in Kentucky, Johnson is not entitled to custody credit per O'Conner, 117 S.W.3d 666.
Second, in Kassulke v. Briscoe-Wade, 105 S.W.3d 403 (Ky. 2003), the Supreme Court rejected a parolee's claim for custody credit on a Kentucky sentence of imprisonment for time spent incarcerated in Missouri. Relying on KRS 439.344, the Supreme Court concluded that time spent on parole may be only utilized to determine eligibility for final discharge from parole. Consequently, we are of the opinion that Johnson is not entitled to credit upon his twenty-year sentence in Kentucky for time he spent incarcerated in Louisiana.
For the foregoing reasons, we affirm the order of the Oldham Circuit Court denying Johnson's petition for writ of habeas corpus.
ALL CONCUR. PETITION FOR APPELLANT: Timothy G. Arnold
Department of Public Advocacy
Frankfort, Kentucky RESPONSE FOR APPELLEES: Amy V. Barker
Justice and Public Safety Cabinet
Frankfort, Kentucky