Mills v. Ky. Parole Bd.

Full title: MARK H. MILLS APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jan 12, 2018

NO. 2017-CA-000350-MR (Ky. Ct. App. Jan. 12, 2018)

Opinion

NO. 2017-CA-000350-MR

01-12-2018

MARK H. MILLS APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE

BRIEF FOR APPELLANT: Mark H. Mills, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III Justice and Public Safety Cabinet Frankfort, Kentucky

DIXON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 16-CI-00059 OPINION
AFFIRMING

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BEFORE: ACREE, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Mark H. Mills, pro se, appeals from an order of the Franklin Circuit Court dismissing his petition for a writ of mandamus against the Kentucky Parole Board. Finding no error, we affirm.

In 2011, Mills was convicted of first-degree sexual abuse and sentenced to two years' imprisonment. In April 2013, he was released on sex offender post-incarceration supervision. The Parole Board revoked Mills's supervised release on October 6, 2014, after finding he had violated his release conditions by attempting to contact the victim. Mills then filed with the Board a document titled "Notice of Appeal" alleging new evidence existed to refute the Board's finding he violated the terms of his release. The Board treated the document as a request for reconsideration pursuant to its administrative regulations, which state, in relevant part:

An offender whose sex offender postincarceration supervision is revoked by the board, or the offender's authorized legal representative, may request reconsideration review of the decision by the board.

(1) A request for reconsideration shall be in writing and shall be postmarked no later than twenty-one (21) days from the date the final disposition is made available to the inmate. If the request is not postmarked within twenty-one (21) days, it shall be denied.

501 KAR 1:070 § 4.

The record reflects the Board's chairperson issued an order denying reconsideration on November 18, 2014. The order specifically found there was "no new evidence that was not available at the hearing." Nearly a year later, Mills filed a second request for reconsideration with the Board. After Mills did not receive a response from the Board, he filed a petition for writ of mandamus in Franklin Circuit Court to compel the Board to rule on his motion. The Board filed a response and motion to dismiss the petition. The court subsequently entered an order dismissing the petition, and this appeal followed.

"[T]he function of a writ of mandamus is to compel an official to perform duties of that official where an element of discretion does not occur." County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607, 612 (Ky. 2002). "Mandamus is an appropriate remedy to compel an inferior court or administrative body to adjudicate on a subject within its jurisdiction where it neglects or refuses to do so, but not an appropriate remedy to tell the court or administrative body how to decide or to interfere with its exercise of discretion." Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 374 (Ky. 1988).

On appeal, Mills concedes he filed his request for reconsideration nearly one year after the Board revoked his supervised release; however, he contends he was unaware of the applicable time limitation for requesting reconsideration.

Mills's argument is unpersuasive. The record reflects Mills submitted a "Notice of Appeal" to the Board within the 21-day time period, and the Board treated the document as a request for reconsideration under 501 KAR 1:070 § 4. Further, the chairperson issued an order denying reconsideration and specifically advised Hill:

The Parole Board reviewed the file and request and found no basis for reconsideration. No further action will be taken. Any further request will be filed with no response.

Mills exercised his right to request reconsideration within the 21-day deadline imposed by the regulation, and the Board denied his request. The Board complied with 501 KAR 1:070 § 4, and the regulation clearly did not impose a duty on the Board to respond to Mills's untimely second request for reconsideration. After careful review, we agree with the trial court that Mills was not entitled to a writ of mandamus.

For the reasons stated herein, we affirm the order of the Franklin Circuit Court.

ALL CONCUR. BRIEF FOR APPELLANT: Mark H. Mills, Pro Se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III
Justice and Public Safety Cabinet
Frankfort, Kentucky