Opinion
NO. 2012-CA-000191-MR
05-10-2013
IRAN NEAL APPELLANT v. LADONNA THOMPSON AND DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Iran Neal, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEES: Stafford Easterling Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00567
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal of the denial of a writ of mandamus by the Franklin Circuit Court. Based upon the following, we will affirm the decision.
BACKGROUND INFORMATION
Iran Neal, the appellant in this case, began serving his sentence due to convictions of multiple criminal counts in Jefferson County, Kentucky in 1986. He was first convicted of Burglary III and Persistent Felony Offender I. In 1987, Neal was convicted of the additional crimes of Escape II and Burglary II. He was sentenced to thirteen years for the Burglary III (due to the PFO enhancement); ten years for the Escape II (enhanced due to the PFO); and another ten years for the Burglary II (enhanced due to the PFO). These sentences were to run consecutively for a total of 33 years.
Neal was paroled in 1985, but was returned to prison in 1997 due to parole violations. He was paroled a second time in 1998, and in 2002, he was again imprisoned due to parole violations. Neal was then paroled a third time, in 2005, until he was arrested and convicted of new felonies in 2010. These charges were Kidnapping, Burglary I, Assault II and Assault I. Neal received ten year sentences on each of these charges to run concurrently with his old sentence with the exception of ten years on the Burglary I charge.
The Department of Corrections calculated Neal's sentence and he challenged that calculation through a writ of mandamus. The Franklin Circuit Court granted the Appellees' Motion to Dismiss, finding that he failed to state a claim upon which relief could be granted. Neal then filed this appeal from the Franklin Circuit Court's dismissal.
STANDARD OF REVIEW
We review a decision to deny a writ for abuse of discretion. Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005).
DISCUSSION
"A writ of mandamus or prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice and irreparable injury will result if the petition is not granted." Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky. 2009) (quoting Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004)); Mahoney v. McDonald-Burkman, 320 S.W.3d 75, 77 (Ky. 2010). A writ of mandamus is not a remedy available to Neal against the Department of Corrections. KRS 439.344 provides that time spent on parole "shall not count as a part of the prisoner's maximum sentence except in determining parolee's eligibility for a final discharge from parole."
In 2003, KRS 439.344 was suspended due to the Kentucky General Assembly's budgetary concerns. The General Assembly passed House Bill 269 § 36(a) which provided as follows:
Notwithstanding KRS 439.344, the period of time spent on parole shall count as a part of the prisoner's remaining unexpired sentence, when it is used to determine a parolee's eligibility for a final discharge from parole as set out in KRS 439.354, or when a parolee is returned as a parole violator for a violation other than a new felony conviction.
In this case, Neal was paroled in 1997 and 2002 which was well before HB 269 went into effect. Pursuant to Rees v. Miller, 2007 WL 2994633 (Ky. App. 2007), the only inmates who received the benefit of HB 269 were those whose parole was revoked between July 1, 2003 and June 30, 2004. Neal's parole does not fall within this time period.
Cited pursuant to CR 76.28(4)(c).
Neal does not receive additional time credit under House Bill 372 either. KRS 439.344 provides that
The period of time spent on parole shall count as a part of the prisoner's sentence, except when a parolee is:Neal has no claim to any parole supervision credit under either of these statutes. Thus, we affirm the decision of the trial court.
(1) Returned to prison as a parole violator for a new felony conviction;
(6) Classified as a violent offender pursuant to KRS 439.3401; or
(7) A registered sex offender pursuant to KRS 17.500 to 17.580.
ALL CONCUR. BRIEF FOR APPELLANT: Iran Neal, Pro Se
West Liberty, Kentucky
BRIEF FOR APPELLEES: Stafford Easterling
Justice and Public Safety Cabinet
Frankfort, Kentucky