Opinion
NO. 2017-CA-000323-MR
02-08-2019
DONALD HARDY APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE
BRIEF FOR APPELLANT: Timothy G. Arnold Frankfort, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 15-CI-00758 OPINION
AFFIRMING
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BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES. GOODWINE, JUDGE: Donald Hardy appeals a judgment of the Franklin Circuit Court upholding the revocation of his parole for violating the terms of his release. After reviewing the record in conjunction with applicable legal authority, we affirm the judgment of the circuit court.
BACKGROUND
Hardy is serving a thirteen-year sentence for several fraud related offenses. He is currently out of prison on parole, having been released November 29, 2016. Hardy was previously paroled April 1, 2014, and his subsequent revocation gave rise to this action. One of the conditions of his parole was the completion of a substance abuse program. On June 9, 2014, Hardy was dismissed from the substance abuse program due to numerous unexcused absences. Upon his dismissal from the program, Hardy's parole officer charged him with a parole violation.
http://kool.corrections.ky.gov/KOOL/Details/75390 --------
501 Kentucky Administrative Regulation ("KAR") 1:040 sets out the procedure for revocation proceedings when a parole officer charges a parolee with a violation. Section 1 of the regulation provides that the parole officer must initially serve the parolee with notice of a preliminary revocation hearing setting out the alleged violation or violations. The regulation also states that preliminary revocation hearings "shall be conducted by an administrative law judge of the Parole Board who shall have control over the proceedings and the reception of evidence at these hearings." 501 KAR 1:040(1).
It is undisputed that Hardy received notice that his parole officer was initiating revocation proceedings based upon his discharge as "non-compliant" from the substance abuse program. The notice clearly explained Hardy's constitutional right to counsel and stated that a public defender may be available for indigent defendants. Under 501 KAR 1:040 Section 1(6)(b), the administrative law judge shall refer the case to the Parole Board for a final revocation hearing if, on the basis of the evidence presented, there is probable cause to believe that a parolee committed any or all of the alleged violations.
Section 5 of the regulation sets out a procedure by which a parolee may waive the preliminary revocation hearing and proceed directly to the Parole Board. Hardy was informed of this option by service of a waiver form which explicitly enumerated the rights he would be sacrificing and the legal peril he faced by signing the waiver. Both the notice and the waiver clearly inform parolees of the right to have a lawyer represent them at revocation proceedings, including a publicly appointed attorney if the parolee cannot afford to hire private counsel.
The notice states, "You may waive (give up your right to) the Preliminary Parole Revocation Hearing and have your case submitted directly to the Parole Board by admitting that you are guilty of each and every violation." The waiver goes on to inform the parolee of the panoply of rights he is sacrificing by signing the waiver form and states that he will very likely be returned to prison if he waives the preliminary revocation hearing.
Finally, the waiver informs the parolee that he has the option of requesting a "special final revocation hearing" when meeting with the Parole Board for the final parole revocation hearing. This special final revocation hearing provides both the parole officer and the parolee the ability to subpoena witnesses to the proceedings. After Hardy signed both these documents, he was taken into custody by his parole officer.
Hardy declined to request a "special final revocation hearing" when meeting with the Board at his final revocation hearing. Hardy entered a plea of not guilty and offered mitigating evidence concerning alleged medical reasons for exceeding the number of excused absences the substance abuse program permits. Hardy admitted to a total of eleven absences, five of which were later excused by the Board. Hardy acknowledged making mistakes in handling the process by failing to go to his treatment center and "get everything in writing" and admitted "I did not do that the right way."
The Board revoked Hardy's parole after finding him guilty of the probation violation. The Board member conducting the hearing stated, "You [weren't] doing things in the manner in which you were asked to do it" to which Hardy responded, "Yes, ma'am." Thereafter, Hardy filed a complaint in the Franklin Circuit Court seeking declarative and injunctive relief. After considering both Hardy's and the Board's cross-motions for summary judgment, the circuit court granted summary judgment in favor of the Board.
This appeal followed.
STANDARD OF REVIEW
In reviewing a grant of summary judgment, an appellate court must determine "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). However, when summary judgment stems from an administrative action, appellate review is modified for a determination of whether the petition raises specific, genuine issues of material fact sufficient to overcome the presumption of the propriety of the agency's action. Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997).
ANALYSIS
Hardy's arguments in this appeal center on the Kentucky Parole Board's ("Board") failure to make formal findings as to the factors set out in Kentucky Revised Statute ("KRS") 439.3106, as well as the Board's denial of his right to counsel and the due process right to be heard. Hardy insists that given these failings, the circuit court erred in granting summary judgment to the Board.
In response, the Commonwealth argues that Hardy's appeal is moot because he was again paroled during the pendency of this appeal. In Murrell v. Kentucky Parole Board, 531 S.W.3d 503, 505 (Ky. App. 2017), this Court held that the fact the appellant had been paroled prior to the issuance of an opinion rendered his appeal moot. Although Hardy correctly cites Murrell's holding that the Board must "make express findings on the record, oral or otherwise, demonstrating that the Board considered the requirements of KRS 439.3106" before final revocation, we nevertheless agree that Hardy's argument regarding the failure to make findings was rendered moot when he was returned to parole. Id. at 507. In any event, Hardy's KRS 439.3106 argument does not fall under the exception to the mootness doctrine. As the opinion in Murrell definitely settled the exact contention Hardy advances regarding KRS 439.3106, the issue does not evade review. Hardy will have the benefit of the holding in Murrell should his current parole be revoked.
However, as was the case in Murrell, Hardy advances other arguments which fall squarely within the exception to the mootness doctrine in that they are capable of repetition, yet evading review. Bowlin v. Commonwealth, 357 S.W.3d 561, 565 (Ky. App. 2012). And, like the situation in Murrell, Hardy is currently on parole and is therefore subject to the possibility of facing another revocation hearing in the future. In addition, "the issue presented to us is likely to reoccur in other cases coming from the Board under similar time constraints." Murrell, 531 S.W.3d at 505. We therefore turn to Hardy's contention that he was denied the right to counsel and to an evidentiary hearing.
In granting the Board's motion for summary judgment, the trial court stated:
Petitioner [Hardy] plead guilty to his parole violation by waiving his preliminary hearing and affirmed eleven absences, five of which were later excuse by the Respondent [Board]. (Waiver of Right to Counsel at Preliminary Hearing Form, Review for Consideration Form). Taken alone, Petitioner's admission of the parole violation provides reasonable grounds for parole revocation. Morrissey [v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)] at 490. Revocation of parole is an administrative, not criminal, proceeding; as such, the full panoply of rights due to one engaged in a criminal proceeding are not available. Id. at 480. Petitioner alleges that he had no opportunity to call witnesses or present additional evidence, but the record does not reflect that he ever made such requests prior to, or at his final revocation hearing. Respondent acknowledges that Petitioner had a right to counsel at his preliminary hearing and if he could not afford an attorney, one would be provided to him at no cost. The record does not reflect that Petitioner ever made a request for an attorney. It is implicit that if Petitioner desired to consult with counsel before deciding whether to waive his right to a preliminary hearing and representation by counsel, he would have refrained from signing the waiver.(Emphasis added). We find no error in the trial court's analysis.
As previously stated, the notice and waiver Hardy signed clearly enumerated the rights he was sacrificing by waiving the preliminary revocation hearing. Hardy nevertheless argues that he signed the waiver only upon his parole officer's assurance that signing the document was merely a formality and he would subsequently be returned to drug treatment. Hardy also argues that he should have been afforded counsel when deciding whether to sign the notice and waiver documents, which themselves explicitly offer him the right to counsel. We disagree.
First, no evidence of record supports Hardy's contention that he was improperly induced by his parole officer. Neither could Hardy be considered a neophyte with respect to the criminal legal processes. He had pled guilty to a host of crimes, been to prison, paroled, and was now facing parole revocation. Whatever Hardy and his parole officer might have discussed, he nevertheless signed a document which literally told him that by signing it, he was likely going back to prison as an admitted parole violator. Hardy initialed the sentence "I am admitting that I am guilty of each and every violation in this NOTICE . . . ."
Hardy also predicates error on the fact that his waiver was "not presented to an administrative law judge for approval." The relevant section of 501 KAR 1:040 states:
Section 5. Waiver of Preliminary Revocation Hearings. (1) Any parolee charged with a violation of his parole
may waive appearance before an administrative law judge of the Parole Board and by so doing waive his preliminary hearing. Parolees desiring to waive this hearing shall submit their waivers in writing to the board or its administrative law judge for approval. These waivers may be accepted within the discretion of the board or its administrative law judges. No wavier [sic] shall be accepted unless it is found that the waiver was entered into by the parolee knowingly, and voluntarily and that the parolee is, and clearly understands that he is admitting guilt as to the violations charged.501 KAR 1:040(5)(1) (emphasis added). At the beginning of his final revocation hearing, the Board member leading the hearing stated to Hardy, "You signed a waiver at your preliminary hearing, thereby admitting guilt to the following: failure to comply with treatment program for substance abuse." In response, Hardy did not argue that he did not sign the waiver or understand the meaning behind the waiver that he signed. Thus, the Board accepted Hardy's waiver based upon his admission that he had in fact signed the waiver, did not dispute having failed to comply with the substance abuse program requirements, and offered only medical evidence in mitigation of his guilt. We find no abuse of the Board's discretion in accepting his voluntary waiver.
Hardy also contends that the document he signed advised him only that he was waiving his right to counsel at the preliminary hearing, but that it did not include a waiver of counsel at his final hearing. The waiver states, in pertinent part:
I, Hardy, Donald, understand that I have a right to be represented by a lawyer at my Preliminary Revocation Hearing, including the right to a Public Defender (at no cost) if I cannot afford to hire a lawyer. I do hereby state that I do not want to be represented by a lawyer at this hearing and therefore waive (give up) this right. I further state that I do this of my own free will and am not, in any way, being forced to do so.(Emphasis added).
. . . .
I, Hardy, Donald, do not want to have a Preliminary Revocation Hearing and therefore enter into this waiver. I understand that: I am admitting I am guilty of each and every violation contained in this NOTICE . . . .
. . . .
I am giving up the right to speak on my behalf, call witnesses[,] questions [sic] the witnesses testifying against me, and present documents . . . . I would also have the right not to testify in this hearing.
As a result of signing this Waiver, I will very likely be returned as a parole violator, have my parole revoked, and could be required to serve the remainder of my sentence.
. . . .
I may request a special final revocation hearing (a hearing with an attorney and subpoenaed witnesses) when called before the Board.
There is no indication in the record that Hardy ever made a request for a special final revocation hearing when appearing before the Board. Not only did Hardy fail to request a special final hearing, he specifically waived his right to counsel multiple times throughout this process. He did not ever request an attorney; did not complain of any aspect of the parole revocation process as it progressed; nor did he request a special final revocation hearing although having had the chance to do so when he appeared before the Board. Beyond voicing dissatisfaction with the result of the final revocation hearing, Hardy does nor argue that he did not understand the rights he forfeited through his waiver.
The waiver Hardy signed notified him of his opportunity to submit mitigation evidence directly to the parole board in writing. Mitigation evidence was defined for him in the waiver as "evidence which explains why [he] committed the violation . . . ." Hardy was afforded the opportunity to present mitigating evidence to the Board and did so. Hardy admitted making mistakes in communicating with the substance abuse treatment center and having failed to attain the required documentation concerning his absences. Thus, we are convinced that Hardy was afforded the requisite due process rights established by the United States Supreme Court's decision in Morrissey:
(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. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the 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. These precise due process requirements are codified in 501 KAR 1:040, Kentucky's administrative regulations governing parole revocation proceedings -- "a code of procedure" which the Supreme Court in Morrisey emphasized "is the responsibility of each State." Id. at 488.
Based on the record before us, we are convinced that Hardy was sufficiently apprised of his rights to legal counsel and to a due process hearing. Hardy has failed to prove genuine issues of material fact remain in dispute.
CONCLUSION
Based upon the foregoing, we affirm the judgment of the Franklin Circuit Court summarily dismissing Hardy's case in favor of the Board.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy G. Arnold
Frankfort, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III
Frankfort, Kentucky