Opinion
NO. 2017-CA-001390-MR
07-20-2018
SHAWN MALONE APPELLANT v. DEPARTMENT OF CORRECTIONS APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-01301 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Shawn Malone appeals the opinion and order of the Franklin Circuit Court dismissing his petition for a declaration of rights against the Department of Corrections (DOC). At issue is DOC's application of 501 Kentucky Administrative Regulation (KAR) 1:030 Section 3(4) to calculate Malone's parole eligibility for crimes committed after an escape. Applying this regulation, DOC calculated Malone would remain ineligible for parole until he served fifty-four years and eight months. Malone argues the Kentucky Supreme Court's holdings in Sanders v. Commonwealth, 844 S.W.2d 391 (Ky. 1992), and Hughes v. Commonwealth, 87 S.W.3d 850 (Ky. 2002), prohibit any defendant sentenced to a term of years from receiving a parole eligibility date in excess of twenty years. We disagree with Malone's interpretation of Sanders and Hughes and affirm.
Malone escaped from prison in 2001. In 2002, he was convicted of several crimes committed while on escape: murder, first-degree robbery, first-degree burglary, and promoting contraband. Malone was sentenced to thirty-five years on the murder conviction, twenty years each for the robbery and burglary convictions, and one year for the promoting contraband conviction. These sentences were to run concurrently with each other and consecutive to a one-year sentence for escape, bringing Malone's total sentence to thirty-six years' imprisonment.
Malone's convictions for murder, first-degree assault, and first-degree burglary are crimes explicitly enumerated under Kentucky's violent offender statute, Kentucky Revised Statute (KRS) 439.3401. Ordinarily, a violent offender sentenced to a term of years is ineligible for parole until serving eighty-five percent of his sentence, or twenty years, whichever is less. KRS 439.3401(3)(a); Hughes, 87 S.W.3d at 856. However, Malone's conviction for escape triggered application of 501 KAR 1:030 Section 3(4), which governs parole eligibility for crimes committed while on escape. This regulation provides, in pertinent part, as follows:
If an inmate commits a crime . . . while on an escape and receives a concurrent or consecutive sentence for this crime, eligibility time towards parole consideration on the latter sentence shall not begin to accrue until he becomes eligible for parole on his original sentence. This shall include a life sentence.
(a) Except as provided by paragraph (b) of this subsection, in determining parole eligibility for an inmate who receives a sentence for an escape, . . . or on 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:
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;
. . . 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.
Based on this language, DOC notified Malone he would not be eligible for parole until he served fifty-four years and eight months. DOC calculated Malone's parole eligibility by adding the following: four months for the one-year sentence for escape (twenty percent of one year); plus twenty years for the thirty-five year sentence for murder (the maximum parole ineligibility period permitted for crimes enumerated under KRS 439.3401); plus seventeen years for the twenty-year sentence for first-degree robbery (eighty-five percent of twenty); plus seventeen years for the twenty-year sentence for first-degree burglary; plus four months for the one-year sentence for promoting contraband.
Malone then requested DOC recalculate his parole eligibility date. After exhausting his administrative remedies, Malone filed an action for declaratory and injunctive relief in circuit court. Malone argued KRS 439.3401 caps parole ineligibility at twenty years, the same ineligibility period provided for violent offenders sentenced to life imprisonment. In support of this argument, he cited Sanders and Hughes, two cases in which the Kentucky Supreme Court held that parole ineligibility for violent offenders sentenced to a term of years could not exceed the parole ineligibility provided for violent offenders sentenced to life imprisonment.
DOC moved to dismiss for failure to state a claim upon which relief may be granted. It argued 501 KAR 1:030 Section 3(4) complements KRS 439.3401 when a defendant commits crimes while on escape, making a parole ineligibility period in excess of twenty years permissible under Sanders and Hughes. The circuit court agreed and dismissed Malone's complaint. This appeal follows.
When considering a motion to dismiss for failure to state a claim upon which relief may be granted, "the allegations contained in the pleading are to be treated as true and must be construed in a light most favorable to the pleading party. The test is whether the pleading sets forth any set of facts which—if proven—would entitle the party to relief." Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 644-45 (Ky. App. 2010) (internal citation omitted). Because the trial court is not required to make any factual findings, its decision to dismiss is reviewed de novo. Id.
Malone argues Sanders and Hughes stand for the premise that KRS 439.3401 expresses the Kentucky General Assembly's intent that no offender sentenced to a term of years shall be ineligible for parole in excess of twenty years. This argument overstates the Kentucky Supreme Court's holdings in Sanders and Hughes.
In Sanders, 844 S.W.2d at 392, the defendant was convicted of several crimes and sentenced to one hundred and seventy years' imprisonment. At the time, KRS 439.3401 prescribed a twelve-year period of parole ineligibility for violent offenders sentenced to life imprisonment. Id. at 393. Violent offenders sentenced to a term of years were required to serve fifty percent of their sentence. Id. Thus, the defendant in that case remained parole ineligible for eighty-five years, seventy-three years longer than he would have remained ineligible had he received a life sentence. Id.
The defendant argued a literal application of KRS 439.3401 violated his rights to equal protection and due process. Id. The Kentucky Supreme Court agreed, concluding there could be no rational basis for the disparate treatment when the General Assembly intended life imprisonment to be a penalty equal to, or greater than, any sentence for a term of years. Id. Thus, the Court held that KRS 439.3401 expressed the legislature's intent that violent offenders sentenced to a term of years remain ineligible for parole until serving fifty percent of their sentence, or twelve years, whichever is less. Id. at 394. The Court explained "[i]n so interpreting KRS 439.3401, we avoid the evils of denial of equal protection and failure of due process which otherwise result from a literal interpretation thereof, and uphold the constitutionality of the statute[.]" Id.
In Hughes, 87 S.W.3d at 854, the defendant raised the same issue after being sentenced to forty years. By that time, the General Assembly amended KRS 439.3401 to increase the parole ineligibility period to twenty years for violent offenders sentenced to life imprisonment and eighty-five percent of the sentence for violent offenders sentenced to a term of years. Id. at 855. The Kentucky Supreme Court concluded that the General Assembly's failure to address its holding in Sanders when amending KRS 439.3401 demonstrated the legislature's adoption of its construction of the statute. Id. at 856. As a result, the Kentucky Supreme Court held that the current version of KRS 439.3401 must be interpreted as requiring violent offenders sentenced to a term of years remain parole ineligible until serving eighty-five percent of their sentence, or twenty years, whichever is less. Id.
A close reading of Sanders and Hughes makes clear that the Kentucky Supreme Court was concerned with the constitutional implications caused by the disparate treatment between violent offenders sentenced to a term of years and those given a life sentence. In neither opinion did it hold that parole ineligibility in excess of twenty years is illegal in all circumstances. 501 KAR 1:030 Section 3(4) applies only to inmates who commit additional crimes while on escape. DOC's interpretation of this regulation prevents a crime committed while on escape from adding more than twenty years to an escapee's parole eligibility date. This interpretation prevents escapees from receiving longer periods of parole ineligibility for a term of years than they would receive for a life sentence. Such a construction of 501 KAR 1:030 Section 3(4) is consistent with the Kentucky Supreme Court's holdings in Sanders and Hughes.
Malone provides no other grounds to find DOC's literal application of 501 KAR 1:030 Section 3(4) inconsistent with Kentucky law. He concedes there is a rational basis for punishing escapees with increased parole ineligibility. Malone also acknowledges it is not categorically unconstitutional to punish escapees with parole ineligibility periods greater than twenty years. Thus, the circuit court correctly found that his complaint against DOC failed to state a claim upon which relief may be granted.
Based on the foregoing, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Frankfort, Kentucky