Opinion
112,244.
04-03-2015
Stephen Alan MACOMBER, Appellant, v. KDOC, Prisoner Review Board, Appellees.
Stephen Alan Macomber, appellant pro se. John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Stephen Alan Macomber, appellant pro se.
John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Stephen Alan Macomber was serving sentences for multiple aggravated robbery and aggravated battery charges from 1987 and 1992 when he was paroled to Shawnee County. While on parole, he committed numerous additional serious crimes, including killing a man, robbing a bank, shooting a deputy, stealing the deputy's vehicle, and breaking into a woman's home and holding her hostage. Not surprisingly, the Kansas Department of Corrections (KDOC) issued a parole violation warrant based on the new crimes. The Kansas Prisoner Review Board (review board) waited until the conclusion of the new cases before holding Macomber's revocation hearing. Based on the new charges, the review board revoked his parole. Macomber filed a K.S.A. 60–1501 petition alleging he was being unlawfully restrained. The district court denied his motion. Macomber appeals from the denial of his petition on the grounds the review board lacked the authority to revoke his parole and it unconstitutionally denied him parole. The record reveals no error and we affirm.
In case No. 85–CR–1405, Macomber was convicted of four counts of aggravated robbery and one count of aggravated battery. He received an indeterminate sentence of 38–100 years in prison. In case No. 92–CR–549 for aggravated battery, Macomber received a preguidelines indeterminate sentence of 3–10 years to consecutive to CR–1405 for a term of 41–110 years in prison. At some point, he was paroled from these sentences to Shawnee County.
While on parole, Macomber engaged in a multiday, multicity crime spree that resulted in multiple charges. The charging documents are not included in the record.
On June 4, 2010, Macomber went into the Bank of the West in Bellevue, Nebraska, and gave the teller a check. The check stated, “Don't fuck this up” and “no dye pk's [sic ], do not hit alarm or I will start shooting, act normal like processing a check for $6500 minimum, $100's, $50's, $20's only.” Macomber lifted his shirt and showed the teller a handgun. The total amount of money Macomber took in the robbery was $7,375.
On June 6, 2010, Risa Lofton was arguing with her husband Ryan Lofton. She called Macomber to pick her up. When he arrived at the Lofton residence, he too began arguing with Ryan. The argument culminated in Macomber shooting and killing Ryan. Macomber then fled.
On June 7, 2010, Macomber was stopped by Marshall County Deputy Salcedo. During the stop, Macomber shot Deputy Salcedo twice—once in the wrist and once in the back—injuring but not killing him. Macomber stole Deputy Salcedo's vehicle. Macomber then broke into a woman's house and held her hostage before he was ultimately captured.
On June 8, 2010, Macomber was arrested in Blue Rapids, Kansas based on a Kansas Department of Corrections (KDOC) order to arrest and detain him. The order was issued on June 7, 2010 based on his actions of the previous few days. It alleged three violations of parole: homicide, possession of a weapon, and shooting a person. He was housed in the Riley County Jail. In Kansas, Macomber was charged in Marshall County case Nos. 10–CR–59 and 10–CR–60 and Shawnee County case No. 10–CR–1053. The Kansas charging documents are not included in the record, so it is unclear what precise charges he faced in Kansas. In Nebraska, Macomber was charged with felony robbery and felony use of a deadly weapon to commit a felony in case No. CR103830.
On January 21, 2011 Governor Sam Brownback issued Executive Reorganization Order 34 (ERO 34). ERO 34 replaced the Kansas Parole Board (parole board) with the review board. The change was set to become effective July 1, 2011. Macomber challenges the legality of ERO 34 and the new review board.
On May 31, 2011, Macomber's jury trial in Marshall County case No. 10–CR–59 concluded. The jury convicted Macomber of (1) attempted murder in the first degree, (2) aggravated battery on a law enforcement officer, (3) aggravated robbery, (4) aggravated assault on a law enforcement officer, and (5) criminal possession of a firearm.
On June 6, 2011, Macomber's jury trial in Marshall County case No. 10–CR–60 concluded. The jury convicted Macomber of (1) kidnapping, (2) aggravated battery, (3) aggravated assault, (4) possession of a firearm, and (5) criminal threat.
On June 11, 2011, Macomber was transferred to the Shawnee County Jail.
On July 1, 2011, the review board established by ERO 34 took effect.
On January 1, 2012, after a third jury trial, Macomber was convicted of (1) murder in the second degree-intentional, and (2) criminal possession of a firearm in Shawnee County case No. 10–CR–1053. He was sentenced on February 21, 2012.
On March 28, 2012, Macomber was transferred to the El Dorado Correctional Facility.
On June 12, 2012, the review board conducted Macomber's parole revocation hearing. He requested an attorney to refute the legitimacy of the review board because he thought it was a “conflict.” Specifically, Macomber alleged that (1) the review board as part of KDOC would not be objective; (2) a review board member should have been excluded from the decision since it was her fault he ended up in Shawnee County on parole; (3) the review board members were not appointed by the governor; and (4) he should not have been in segregation due to his offense and KDOC had violated of his rights. The review board denied this request. On Macomber's final violation hearing testimony request/waiver form, the review board indicated his request was denied because Macomber wanted an attorney to question the legality of the review board, not to question his charges.
The review board revoked Macomber's parole, citing 14 violations of the law. Specifically, the review board found Macomber had committed as charged; first-degree murder, criminal possession of a firearm, robbery, use of a deadly weapon to commit a felony, attempted murder in the first degree, aggravated battery on a law enforcement officer, possession of a firearm by a felon, burglary of a motor vehicle, theft, kidnapping, aggravated burglary, aggravated assault, possession of a firearm by a felon, and criminal threat. The review board noted that Macomber would next be considered for parole in 2015.
On August 8, 2012, Macomber filed a K.S.A. 60–1501 petition alleging he was being unlawfully restrained by the KDOC in Butler County at the El Dorado Correctional Facility. He contended his parole revocation was wrongful for the following reasons:
(1) ERO 34 eroded certain protections that previously provided fair revocation hearings, including the limitation of persons from the same political party on the board and the requirement that members be confirmed by the senate;
(2) His revocation hearing was unnecessarily delayed, in violation of his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution;
(3) The review board's failure to appoint counsel or state in writing why his request for counsel was denied violated his due process rights;
(4) The review board's failure to consider the proportionality of the time he had served on his indeterminate sentence in comparison to what a guidelines sentence for the same charge would be;
(5) The review board erroneously found him guilty of first-degree murder, burglary of a motor vehicle and theft;
(6) ERO 34 violates the Kansas Constitution; and
(7) Other reasons that have since been deemed moot.
He also filed a request for a warrant in aid of writ pursuant to K .S.A. 60–1506.
On September 25, 2012, Macomber filed an ex parte motion regarding issuance of writ and service of petition alleging a speedy trial issue and making additional claims about the El Dorado Correctional Facility staff.
On October 15, 2012, the district court dismissed Macomber's motion for failure to exhaust administrative remedies as required by law. Macomber appealed the decision in appellate case No. 109,001. This court remanded the case to the district court to appoint appellate counsel, which the district court did. Once it was back before this court, this court reversed and remanded the district court's dismissal of Macomber's motion in Macomber v. KDOC, No. 109,001, 2013 WL 3970209 (Kan.App.2013) (unpublished opinion) The Macomber opinion indicated Macomber had proceeded pro se. Because a prisoner has no administrative remedies for a parole denial, the Macomber court held he was not required to exhaust administrative remedies prior to filing his petition. 2013 WL 3970209 at *1.
On November 22, 2013, the district court appointed counsel to represent Macomber. On November 27, 2013, Macomber filed a motion to remove appointed counsel because he had not requested the court to appoint counsel and he had authorized no one to speak or submit any filing on his behalf. The court appointed new counsel to represent Macomber on that day. On December 4, 2014, 2013, Macomber again filed a motion to remove appointed counsel and objected to the appointment of new counsel. Macomber then filed a motion for a change of judge.
The district court held a hearing on Macomber's motion, though the transcript is not in the record. On June 24, 2014, the court denied Macomber's motion. The court issued an order providing its findings of facts and denying Macomber's motion.
The district court noted that at his review board hearing, Macomber challenged the constitutionality of the review board itself, not the decision the review board made. The court held that Macomber's argument that ERO 34 violated his right to due process and The Ex Post Facto Clause was meritless. The court treated ERO 34 as a procedural change—it simply substituted the review board for the parole board without affecting Macomber's rights. The court determined the review board did not unnecessarily delay his hearing by waiting for the outcome of his new criminal cases before holding his revocation hearing. The court questioned whether the habeas petition was the appropriate vehicle for challenging the constitutionality of the review board and held that the review board did not err in failing to appoint him counsel to mount this challenge. In response to Macomber's claims that the review board improperly misconstrued facts, the court held that the review board did not misconstrue the evidence. Additionally, the court noted it does not reweigh evidence or substitute its discretion for that of the review board. Regarding Macomber's claim that the review board was biased, the court found his unsupported opinions of bias were insufficient to support a claim of a due process violation. Finally, the court held ERO 34 was a proper action provided for in the constitution. The court denied Macomber's petition.
Macomber argues the review board that revoked his parole lacked the authority to do so. Additionally, he alleges multiple due process violations. We affirm.
Additional facts will be included as necessary.
Macomber first argues the review board lacked the authority to revoke his parole. Although he challenged the legality of the review board below, the issue was not properly before the review board. The review board is an administrative body. “Since administrative boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law.” In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984). Therefore, it was the review board's “ ‘duty to presume that the statutes are constitutional and valid.’ “ Zarda v. State, 250 Kan. 364, 370, 826 P.2d 1365 (1992). Macomber “ ‘had a right to seek court relief on the question of the constitutionality of the statute without first presenting the question to the commission for review.’ “ Zarda, 250 Kan. at 370 (quoting Gray v. Jenkins, 183 Kan. 251, 293, 326 P.2d 319 [1958] ).
Macomber's argument is rooted in the implementation of ERO 34, issued January 21, 2011. First, Macomber notes that under K.S.A. 22–3707, the parole board was not repealed until July 1, 2012. See L.2012, ch. 16, sec. 40, effective July 1, 2012. Second, Macomber cites ERO 34(3)(b) for the following proposition: “Whenever the Kansas parole board ... [is] referred to or designated by a statute, ... such reference or designation shall be deemed to apply to the prisoner review board.” See K.S.A.2012 Supp. 75–52,152(b). Therefore, Macomber contends that since K.S.A. 22–3707 was not repealed until July 1, 2012—after his hearing—the statutory confirmation requirement of the parole board applied to the new review board that revoked his parole through ERO 34(3)(b). Because the members of the review board that revoked him had been selected by the secretary of corrections and not confirmed by the Senate, Macomber concludes the review board lacked the authority to revoke his parole. We turn to the merits of this argument.
Through ERO 34, Governor Brownback abolished the parole board and replaced it with the review board. The review board now performs all of the duties and functions of the parole board. The legislature first established the parole board—previously known as the Kansas Adult Authority—in 1970 through L.1970, ch. 129, § 22–3707, which was codified in K.S.A. 22–3707. K.S.A. 22–3707 has consistently required either Senate consent or Senate confirmation of each parole board member. See L.2010, ch. 135, sec. 31; L.2003, ch. 142, sec. 1; L.1997, sec. 23, ch. 2; L.1995, sec. 241, ch. 3; L.1988, ch. 115, sec. 12; L.1984, ch. 129, sec. 1; L.1982, ch. 347, sec. 14; L.1978, ch. 120, sec. 11; L.1973, ch. 339, sec. 60; L.1972, ch. 317, sec. 80; L.1970, ch. 129, sec. 22–3707. However, Governor Brownback issued ERO 34 to abolish the parole board, and the confirmation requirement went with it.
The governor's power to issue an ERO is a constitutional one. See Kan. Const. art. 1, § 6. When the governor issues an ERO, it takes effect with the full force of a general law the following July 1 unless the legislature disapproves it. The constitutional language provides:
(c) Each executive reorganization order transmitted to the legislature as provided in this section shall take effect and have the force of general law on the July 1 following its transmittal to the legislature, unless within sixty calendar days and before the adjournment of the legislative session either the senate or the house of representatives adopts by a majority vote of the members elected thereto a resolution disapproving such executive reorganization order....
(d) An executive reorganization order which is effective shall be published as and with the acts of the legislature and the statutes of the state....” Kan. Const. art. 1, § 6 (c),(d).
Therefore, ERO 34 was a constitutional act by the governor. The legislature did not disapprove it. Instead, the legislature codified it. ERO 34 became effective as of July 1, 2011.
The legislature codified ERO 34 in K.S.A.2012 Supp. 75–52,152 through K.S.A.2012 Supp. 52,157. Macomber's argument is one of statutory interpretation because we are asked to determine which statutory requirements apply to the review board that revoked Macomber's parole. This court has unlimited review over interpretation of statutes. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). When interpreting a statute, the court first attempts to discern the legislature's intent through the language enacted, giving common words their ordinary meanings. State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011). When statutory language is plain and unambiguous, the court does not speculate as to legislative intent and does not read into the statute words not readily found there. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning. 290 Kan. at 47.
The language of K.S.A.2012 Supp. 75–52,152 through K.S.A.2012 Supp. 75–52,157 is plain and unambiguous. K.S.A.2012 Supp. 75–52,152 established the review board, effective on July 1, 2011. ERO 34(2)(a) and K.S.A.2012 Supp. 75–52,153(a), in no uncertain terms, abolished K.S.A. 22–3707, effective on July 1, 2011: “The Kansas parole board established by K.S.A. 22–3707 is hereby abolished.” The review board “shall consist of three members appointed by the secretary of corrections”—no senate confirmation required. K.S.A.2012 Supp. 75–52,152. The review board that revoked Macomber only had to be selected by the secretary of corrections, not confirmed by the Senate. Therefore, Macomber incorrectly argues the confirmation requirement applied to the review board.
The governor had the authority to issue ERO 34. When the legislature codified it in K.S.A.2012 Supp. 75–52,152 through 75–52,157, it replaced the parole board along with the Senate confirmation requirement. Therefore, the review board was acting with the authority of both the Kansas Constitution and the legislature when it revoked Macomber's parole.
Macomber next argues the review board violated his due process rights. He alleges (1) the review board was not a neutral and detached hearing body, (2) the district court improperly affirmed the review board's erroneous factual findings, (3) the court violated his right to appointed counsel at the hearing, and (4) the review board improperly delayed his revocation hearing.
This habeas corpus action is the appropriate procedure for reviewing the review board's decision. Payne v. Kansas Parole Bd., 20 Kan.App.2d 301, 307, 887 P.2d 147 (1994). Whether due process has been afforded presents a question of law over which an appellate court has unlimited review. Washington v. Roberts, 37 Kan.App.2d 237, 240, 152 P.3d 660 (2007) (citing In re Habeas Corpus Application of Pierpont, 271 Kan. 620, 24 P.3d 128 [2001] ).
Within the context of parole, “ ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ “ Pierpont, 271 Kan. at 627 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ). “[T]he fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The United States Supreme Court has articulated the minimum due process requirements that must be satisfied before a prisoner's parole can be revoked. Those procedures are:
“(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972).
See also Brown v. Kansas Parole Board, 262 Kan. 903, 909, 943 P.2d 1240 (1997).
These procedures “should not impose a great burden on any State's parole system.” Morrissey, 408 U.S. at 490. However, the States may create statutory liberty interests that entitle prisoners to additional due process rights beyond what Morrissey set out. Wolff, 418 U.S. at 558 (“We think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State.”).
Again, Macomber claims the following due process violations: (1) The review board was not a neutral and detached hearing body; (2) the district court made erroneous factual findings when it affirmed his revocation that prejudiced Macomber; (3) the court violated his right to appointed counsel at the hearing; and (4) the review board improperly delayed his revocation hearing. These issues will be addressed individually.
Macomber first claims the review board violated his right to a neutral and detached hearing board. Macomber is correct that he was entitled to have a neutral and detached board determine whether his parole should have been revoked. See Morrissey, 408 U.S. at 489. Macomber contends there was an inherent conflict in the review board because the secretary of corrections had issued both his parole violation warrant and appointed the review board members. However, he fails to elaborate how this system creates a review board that is not neutral or detached. He also offers no caselaw in support of his argument. A point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). Additionally, failure to support a point with pertinent authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Therefore, this argument is deemed abandoned.
However, even if Macomber had properly briefed this issue, his argument would fail. The United States Supreme Court explained the “neutrality” due process required included the requirement of an individual not involved in the case to determine whether reasonable grounds existed to revoke an inmate's parole. Morrissey, 408 U.S. at 485. Here, Macomber does not argue an individual involved in his case making the revocation determination against him was involved, and a review of the record does not reveal one. Additionally, Kansas case law establishes a legal presumption that public officials act properly and administer acts within their authority regularly and lawfully. See Leffel v. City of Mission Hills, 47 Kan.App.2d 8, 13, 270 P.3d 1 (2011) (citing Lewis v. City of South Hutchinson, 162 Kan. 104, Syl. ¶ 8, 174 P.2d 51 [1946] ; Manufacturing Co. v. Hayes, 98 Kan. 269, 270, 157 P. 1169 [1916] ). Macomber has failed to present anything more than conclusory allegations that the review board acted under a conflict of interest. This cannot sustain Macomber's challenge.
Macomber next claims his due process rights were violated when the district court relied on erroneous factual findings. Specifically, he argues the review board erroneously found he had been convicted of certain crimes. Before reviewing the merits of this issue, the factual statement Macomber presents should be reviewed.
After Macomber's hearing on June 6, 2012, the review board issued its violation hearing action notice which documented it's reasons for revoking his parole. Macomber does not argue with the underlying factual basis the review board relied on when it found the violations. He only claims the review board's hearing action notice erroneously indicated Macomber had been convicted of first-degree murder, burglary of a motor vehicle, and theft. He claims he was not convicted of these three crimes. On the other hand, although Macomber was not convicted of those three crimes, there was evidence in the record that he may well have performed acts that constituted those three crimes. As we understand the incomplete record before us, the review board approached these three acts in this manner. As we will discuss below, these three charges are academic due to the other acts of which Macomber was convicted.
The review board was allowed to consider evidence that may not have been admissible at trial. The revocation hearing should not be equated “with a criminal prosecution in any sense.” Morrissey, 408 U.S. at 488. Parole should not be revoked based on “erroneous information or because of an erroneous evaluation of the need to revoke parole.” 408 U.S. at 484. The parole revocation hearing process “should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” 408 U.S. at 489 ; see also K.A.R. 44–9–502(e) (2013 Supp.) (“All relevant evidence, including letters and affidavits, shall be received by the board.”). Because the review board is allowed to consider evidence that would be excluded in a criminal trial, it was not a due process violation to consider Macomber's actual conduct, not merely his convictions.
Macomber received the due process he was entitled to. In the context of a parole hearing, the due process required is a “written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 408 U.S. at 489. The action notice itself serves as a written statement of the evidence relief upon and the reasons the review board revoked his parole. The action notice lists the evidence the review board relied upon in revoking his parole, including OMIS Face Sheet, KASPER printout, the violation report, offender testimony, and new felony convictions.
The five-page document lists 14 violations of Macomber's release conditions. He only challenges the first, eighth, and ninth violations. Macomber does not challenge the 11 other violations he was found guilty of having committed as charged—criminal possession of a firearm, robbery, use of a deadly weapon to commit a felony, attempted murder in the first degree, aggravated battery of a law enforcement officer, possession of a firearm by a felon (twice), kidnapping, aggravated burglary, aggravated assault, and criminal threat. Any of these alone would have been sufficient to justify revoking his parole, therefore Macomber could not establish prejudice even if some of the findings were in error. See State v.. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) (Harmless error when an error “did not affect a party's substantial rights.”). The review board's decision revoking Macomber's parole was not arbitrary or capricious.
Macomber's next claim of error is that he had a right to appointed counsel at his parole revocation hearing, and the review board erred in failing to appoint counsel. In the alternative, he claims the review board erred in failing to state in writing why his request for counsel was denied.
The record indicates Macomber requested an attorney to refute the legitimacy of the review board. He thought there was a conflict. He wanted an attorney to question the legitimacy of the review board, not to question his charges. Specifically, he alleged that the review board as part of KDOC would not be objective; (2) a review board member should have been excluded from the decision since it was her fault he was paroled to Shawnee County; (3) the review board members had not been appointed by the governor; and (4) he should not have been in segregation due to his offense and the KDOC had violated his rights.
K.A.R. 44–9–502(f) (2013 Supp.) provides that an inmate is “entitled to have legal counsel present at the hearing, at the offender's expense. ” (Emphasis added.) Appointed counsel, however, may be appointed upon the request of the inmate and:
“shall be based upon either of the following claims by the offender, which shall be timely and on its face plausible:
“(A) A claim that the offender has not committed the alleged violation of the conditions of release or house arrest; or
“(B) a claim that there are substantial reasons that justify or mitigate the violation and make revocation inappropriate.
...
“(2) The board's decision regarding the appointment of counsel shall take into account whether or not the offender is capable of speaking effectively for that individual and whether or not the circumstances are complex or otherwise difficult to develop or present.” K.A.R. 44–9–502(f)(1)–(2) (2013 Supp.).
However, any time a request for counsel is denied, “the grounds for denial shall be stated in writing.” K.A.R. 44–9–502(f)(3) (2013 Supp.).
Macomber is incorrect in his claim that he had a constitutional right to appointed counsel. In this case, his specific claim was not one for which the review board may appoint an attorney. K.A.R. 44–9–502(f) (2013 Supp.). Therefore, it was proper for the board to deny his request. Additionally, the review board explained in writing its reasoning for denying his request as required by K.A.R. 44–9–502(f)(3). On Macomber's final violation hearing testimony request/waiver form, the review board indicated his request was denied because “[h]e wanted an attorney to question the legality of the [review board], not to question his charges.” Therefore, this claim fails.
Finally, for the reasons discussed above, the revocation hearing was not the appropriate place to lodge a constitutional complaint about ERO 34 and the authority of the review board. Therefore the review board properly denied his request for appointed counsel.
Macomber's last alleged violation is that his final revocation hearing was unnecessarily delayed. Due process requires that a parolee held pending final decision of parole board be given opportunity for hearing within a reasonable time after he is taken into custody. Morrissey, 408 U.S. 488. Additionally, K.A.R. 44–9–502 (2013 Supp.) provides that a parolee's “final revocation hearing shall be held without unnecessary delay.”
In State v. Hall, 287 Kan. 139, 153, 195 P.3d 220 (2008), our Supreme Court held that a defendant who was incarcerated in a Kansas prison for 6 years had not been deprived of due process of law when the authorities in another Kansas county waited for his release to execute a probation violation warrant. The Hall court relied on Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed. 236 (1976), which held that unless a defendant makes a showing of prejudice by means of impairment of a liberty interest caused by the delay, the State is under no obligation to execute a parole violation warrant until the defendant is released from custody in another case. See also Adams v. Kansas Parole Board, 24 Kan.App.2d 388, 392, 947 P.2d 448 (1997) (Parole board's delay in holding parole revocation hearing, after defendant was incarcerated for allegedly having committed new offense while on parole, was not unreasonable and did not entitle defendant to habeas corpus relief. The State's inability to hold revocation hearing in a timely manner stemmed not from any denial of defendant's rights but from timing of his own criminal actions.); State v. Christie, No. 109,861, 2014 WL 2224864 at *4 (Kan.App.2014) (unpublished opinion) (13–year delay was not unreasonable when inmate had been serving a sentence in another state but was brought back for his revocation once released from the other state).
Here, the KDOC issued its order to arrest and detain Macomber on June 7, 2010. The review board waited until the conclusion of the three cases against him before holding his hearing. Macomber was convicted in the final case on February 21, 2012. The review board held his revocation hearing on June 12, 2012. The delay between the KDOC's order and his hearing did not stem from a denial of Macomber's rights but from his own criminal actions. Macomber's hearing was held less than 4 months after he was sentenced in his final trial. This delay was not unreasonable or unnecessary and therefore not a violation of his rights.
Additionally, Macomber's claims of an impairment of a liberty interest by the delay are meritless. Contrary to Macomber's assertions, the journal entries of his convictions indicate he was given credit for this time served—389 days of jail credit from June 8, 2010 to July 1, 2011, in 10–CR–59 and 620 days jail credit from June 11, 2010 to February 21, 2012 in 10–CR–1053.
The record reveals no merit to any of Macomber's allegations of error, and we affirm.
Affirmed.