Opinion
NO. 2013-CA-000510-MR
05-22-2015
DONALD BARTLEY APPELLANT v. VERMAN RAY WINBURN; MELISSA HARROD; CLAY CIRCUIT COURT; AND LETCHER CIRCUIT COURT APPELLEES
BRIEF FOR APPELLANT: Donald Bartley, Pro se West Liberty, Kentucky BRIEF FOR APPELLEES, VERMAN RAY WINBURN AND MELISSA HARROD: John C. Cummings Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 11-CI-00703
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. ACREE, CHIEF JUDGE: Appellant Donald Bartley, pro se, filed a petition for a writ of mandamus requesting that the Franklin Circuit Court compel the Parole Board to grant his parole request. The circuit court denied and dismissed Bartley's writ petition. Bartley appealed to this Court. We affirm.
Bartley is serving multiple life and term sentences for various criminal acts committed in the mid to late 1980s. In February 1988, Bartley pleaded guilty in Letcher Circuit Court to first-degree robbery, first-degree burglary, attempted murder, and murder. For the murder conviction, Bartley was sentenced to "imprisonment for life without benefit of probation and parole until he has served a minimum of twenty-five years in the Kentucky State Penitentiary[.]" (R. at 125). A few months later, Barley pleaded guilty in Clay Circuit Court to two counts of murder, first-degree robbery, and first-degree burglary; he was sentenced to a total of forty-five years' imprisonment.
Bartley was sentenced to twenty years' imprisonment on each of the remaining charges, to be served consecutively.
Bartley became eligible for parole in 2009. After hearing Bartley's case, the Parole Board, upon majority vote, denied his parole request and ordered him to serve out his life sentence. The Parole Board cited the following justifications for its denial: the seriousness of the crimes, the violence involved, crime involving a firearm/deadly weapon or instrument, life taken, and Bartley's history of prior felony convictions.
Bartley asked the Parole Board to reconsider its decision, claiming he possessed significant new evidence that was not available at the time of his initial parole hearing. The new evidence consisted of affidavits from several persons who allegedly heard the Letcher Commonwealth Attorney promise Bartley that, if he "agreed to the plea agreement that the Commonwealth was offering, that Mr. Bartley would make [p]arole when he met the Parole Board[, and] that [the Commonwealth Attorney] would also write letters to the Parole Board to help Mr. Bartley make [p]arole." (R. at 133). The Parole Board denied Bartley's reconsideration request.
Bartley then filed nearly simultaneous writ petitions, the first as an original action in this Court and the second in Franklin Circuit Court. The petition in this Court asked that the Letcher Circuit Court and prosecutor be required to abide by the plea agreement, which Bartley thought entitled him to parole. The petition filed in Franklin Circuit Court asked that the Parole Board be forced to grant his parole request, which Bartley claimed it was obligated to do pursuant to the terms of the plea agreement. The driving force behind both petitions was nearly identical: Bartley steadfastly believed he was entitled to parole after serving twenty-five years because: (1) the Letcher Commonwealth Attorney promised as much; and (2) the terms of his sentence explicitly afforded him the "benefit" of parole after serving at least twenty-five years of his sentence.
While Bartley pursued discovery related to his petition in Franklin Circuit Court, this Court dismissed Bartley's original action. Bartley appealed to the Kentucky Supreme Court. It affirmed our decision. Bartley v. Wright, No. 2012-SC-000643-MR, 2013 WL 1188060 (Ky. Mar. 21, 2013).
Meanwhile, back in Franklin County, the circuit court entered an order on January 7, 2013, dismissing Bartley's writ petition. Bartley filed a CR 59.05 motion to alter, amend, or vacate the circuit court's decision. The circuit court denied Bartley's post-judgment motion, and Bartley appealed.
Kentucky Rules of Civil Procedure.
Bartley's arguments on appeal can be distilled down to this: he claims the Parole Board must afford him the "benefit" to which the law, KRS 532.030, entitles him, i.e., mandated parole after serving twenty-five years of his sentence. Bartley arrives at this conclusion by way of two legal doctrines: legislative intent and contractual obligations. Both arguments are rooted in the language of KRS 532.030. That statute states, in pertinent part:
Kentucky Revised Statute.
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When a person is convicted of a capital offense, he shall have his punishment fixed at death, or at a term of imprisonment for life without benefit of probation or parole, or at a term of imprisonment for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence , or to a sentence of life, or to a term of not less than twenty (20) years nor more than fifty (50) years.KRS 532.030(1) (emphasis added). Bartley claims, by utilizing the phrase "benefit of parole," the Kentucky Legislature consciously intended for an inmate to be automatically paroled after serving twenty-five years of his sentence, and therefore the Parole Board lacked the authority to deny his parole request. Bartley also argues that because the "benefit of parole" language was included in his plea agreement-a binding contract-he is entitled to the benefit of the bargain he struck with the prosecutor: parole after serving twenty-five years in prison.
Although varying slightly, these are substantively the same arguments Bartley raised before the Kentucky Supreme Court. The Supreme Court considered and rejected them, stating:
To some extent, it appears that Bartley's claim is also driven by a misunderstanding of his sentence. . . . This claim depends on a misreading of the statute and any plea bargain under the statute. Bartley was sentenced to life in prison. The qualification to that sentence - without the benefit of probation or parole for 25 years - simply means that he cannot receive the benefit before that time has passed. It does not mean that he becomes entitled to parole upon the passage of that time.Bartley, 2013 WL 1188060, at *2. The axiom that "parole is not a right but a privilege" has long been embraced by the courts of this Commonwealth. See, e.g., Commonwealth v. Polsgrove, 231 Ky. 750, 22 S.W.2d 126, 128 (1929). The phrase "benefit of parole" does not convert parole from a discretionary gift of leniency to a mandatory entitlement. Stewart v. Commonwealth, 153 S.W.3d 789, 793 (Ky. 2005). Bartley has presented no grounds entitling him to relief.
Parole is at most a privilege, not a right. See Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). "Parole is a matter of legislative grace or executive clemency." Id. This Court has no power to order the executive branch to parole Bartley.
For the foregoing reasons, we affirm the Franklin Circuit Court's January 7, 2013 Order dismissing Bartley's petition for writ of mandamus.
ALL CONCUR. BRIEF FOR APPELLANT: Donald Bartley, Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEES, VERMAN
RAY WINBURN AND MELISSA
HARROD:
John C. Cummings
Justice and Public Safety Cabinet
Frankfort, Kentucky