Opinion
NO. 2018-CA-001172-MR
06-28-2019
MICHAEL ALLEN SHAW APPELLANT v. KENTUCKY PAROLE BOARD APPELLEE
BRIEFS FOR APPELLANT: Miranda J. Hellman Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Kentucky Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 18-CI-00467 OPINION
AFFIRMING
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BEFORE: KRAMER, NICKELL, AND L. THOMPSON, JUDGES. NICKELL, JUDGE: Michael Allen Shaw appeals from an order of the Franklin Circuit Court granting a motion by Kentucky Parole Board ("KPB") for summary judgment. We affirm.
Shaw was convicted of sexual abuse in the first degree and sentenced to three years' incarceration in 2013. Shaw was subject to five years of postincarceration supervision ("PIS") when he was released from custody in 2016. KRS 532.060(3). Individuals on PIS are monitored by the Division of Probation and Parole and subject to the authority of KPB. KRS 532.043(4). Shaw's conditions of supervision required him to complete a state-approved sex offender treatment program pursuant to KRS 532.045(4) and prohibited him from using social networking websites, instant messaging, or chat room programs accessible by minors pursuant to KRS 17.546.
Kentucky Revised Statutes (KRS) 510.110, a Class D felony.
Subsequent to Shaw's reincarceration, the General Assembly amended and renumbered the statute. KRS 17.546(1)(b) now reads, "[A] registrant who has committed a criminal offense against a victim who is a minor after July 14, 2018, shall not knowingly or intentionally use electronic communications for communicating with or gathering information about a person who is less than eighteen (18) years of age." 2018 Ky. Acts, ch. 42, § 1 (effective July 14, 2018).
After Shaw's release, the Division of Probation and Parole notified KPB of Shaw's alleged failure to comply with the conditions of supervision. These alleged violations included failure to complete a sex offender treatment program as directed and accessing a Facebook account to communicate with his child's mother. KPB held a final revocation hearing and found Shaw guilty of violating the conditions of supervision, revoked his PIS, and reincarcerated him.
Shaw was discharged from a sex offender treatment program because he violated the treatment agreement he entered into with Lighthouse Counseling Services, Inc., when he created several fake social media accounts.
On May 2, 2018, Shaw filed a complaint for declaratory judgment, seeking injunctive relief and a writ of mandamus from the Franklin Circuit Court. The basis of Shaw's action was the decision of the Supreme Court of the United States in Packingham v. North Carolina, — U.S. —, 137 S.Ct. 1730, 1737, 198 L.Ed.2d 273 (2017), holding a North Carolina statute prohibiting registered sex offenders from accessing commercial social networking websites unconstitutional because it infringed on First Amendment rights of those individuals. Shaw also cited Doe v. Kentucky ex rel. Tilley, 283 F.Supp.3d 608, 616 (E.D. Ky. 2017), in which the United States District Court for the Eastern District of Kentucky permanently enjoined the Commonwealth of Kentucky from enforcing KRS 17.546 and KRS 17.510(10) and (13) in light of the decision in Packingham. Both Shaw and KPB moved for summary judgment. The circuit court denied Shaw's motion and granted KPB's motion because "even if the Court found that Petitioner's PIS was improperly revoked due to his violation of Respondent's social media PIS condition, Petitioner would still be in violation of the PIS condition requiring he complete a sex offender treatment program." This appeal followed.
Our review of a circuit court's grant of summary judgment is de novo. Murrell v. Kentucky Parole Board, 531 S.W.3d 503, 505 (Ky. App. 2017) (citation omitted). We must determine whether the circuit court properly found "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. When summary judgment is granted in an administrative action, "[w]e review such orders to determine if the petition raises specific genuine issues of material fact sufficient to overcome the presumption of the agency's propriety." Murrell, 531 S.W.3d at 505 (citing Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky. App. 1997)).
Kentucky Rules of Civil Procedure. --------
Shaw challenges the revocation of his PIS because KPB's decision was based on his use of social media, which he argues was unconstitutionally prohibited by the conditions of supervision under Packingham and Tilley. Shaw not only violated the prohibition on the use of social media websites, but also failed to complete a sex offender treatment program. Shaw now argues both violations relate back to his use of social media websites. However, Shaw entered into a separate agreement with Lighthouse Counseling Services, agreeing, in part, to refrain from engaging in any activity on social media, including Facebook, Twitter, Instagram, Snapchat, or any other dating sites. Lighthouse Counseling Services then independently determined Shaw violated this agreement and released him from the program. Even if Packingham and Tilley applied here, KPB had sufficient independent basis to revoke and reincarcerate him on the basis of his failure to complete a sex offender treatment program. Therefore, the circuit court's grant of summary judgment was proper.
For the foregoing reasons, we affirm the order of the Franklin Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Miranda J. Hellman
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Kentucky Justice & Public Safety Cabinet
Frankfort, Kentucky