Opinion
NO. 2015-CA-000222-MR
03-17-2017
DANNY EDWARD SIMMONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFs FOR APPELLANT: Danny Edward Simmons, Pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 83-CR-00300 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND D. LAMBERT, JUDGES. ACREE, JUDGE: Danny Simmons, pro se, appeals from the Warren Circuit Court's December 24, 2014 Order denying his request for CR 60.02 relief. We affirm.
Kentucky Rules of Civil Procedure.
In 1983, Simmons murdered his wife and her boyfriend. He was indicted on two counts of capital murder, first-degree burglary, and first-degree wanton endangerment. Pursuant to a plea agreement with the Commonwealth, Simmons pleaded guilty to both murder charges and, for these crimes, was sentenced to two concurrent life sentences with parole eligibility.
At the time of Simmons's crimes in 1983, 501 KAR 1:011 mandated an initial parole review every eight years. Simmons became eligible for parole in 1991, and an initial parole hearing was held on June 18, 1991. The Kentucky Parole Board denied Simmons's parole request, and deferred his parole eligibility for 144 months (12 years) in accordance with a 1988 amendment to the parole-eligibility regulation that eliminated the eight-year maximum deferment restriction. The Parole Board cited the following justifications for its denial: the seriousness of the crimes; life taken; the violence involved; involvement of a firearm; second life taken; and Simmons's misdemeanor record, prior felony convictions, and history of substance abuse.
Kentucky Administrative Regulation.
See Simmons v. Commonwealth, 232 S.W.3d 531, 534 (Ky. App. 2007).
"Deferment" in this context refers to "a decision by the [Parole Board] that an inmate shall serve a specific number of months before further parole consideration." 501 Kentucky Administrative Regulations (KAR) 1:030.
"That version of the regulation [in effect in 1983] has since been repealed and replaced by the current version [as of 2007], 501 KAR 1:030(3)(f), which now states:"
After the initial review for parole, a subsequent review, during confinement, shall be at the discretion of the board; except the maximum deferment given at one (1) time shall not exceed the statutory minimum parole eligibility for a life sentence. The board shall reserve the right to order a serve-out on a sentence.
Simmons came before the Parole Board for a second time on June 20, 2003. The Parole Board again denied parole, citing the same justifications as before, and ordered Simmons to serve out his life sentence.
On June 7, 2004, Simmons filed a petition for declaration of rights and permanent injunctive relief against the Parole Board in Franklin Circuit Court. Simmons argued that the Parole Board's serve-out decision violated the administrative regulation specifying parole eligibility in effect at the time of his crimes in 1983. The circuit court dismissed Simmons's petition, and Simmons appealed to this Court.
Simmons presented two arguments on appeal. First, that the Parole Board's action in ordering him to serve out his sentence based on the 2003 version of the administrative regulation constituted a violation of the ex post facto law. And, second, that by issuing the serve-out order, the Parole Board violated the separation of powers doctrine. This Court found no merit in either of Simmons's arguments and affirmed the circuit court's decision. Simmons v. Commonwealth, 232 S.W.3d 531, 534 (Ky. App. 2007) (Simmons I).
Undeterred, Simmons filed a second CR 60.02(f) motion on September 25, 2008, this time arguing the "tangled web of administrative changes" related to parole eligibility significantly altered and lengthened his time of incarceration, resulting in a breach of his plea agreement with the Commonwealth. Simmons requested that the circuit court require the Commonwealth to honor its contract - the plea agreement - with Simmons. Following a hearing held on December 22, 2008, the circuit court denied Simmons's motion. This appeal followed. Additional facts will be developed as needed.
The denial of a CR 60.02 motion is reviewed by this Court under an abuse of discretion standard. Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citation omitted).
CR 60.02 is a unique rule designed to be utilized only in remarkable situations to grant exceptional relief "under the most unusual and compelling circumstances." Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011). Kentucky courts have long urged its cautious application. Baze v. Commonwealth, 276 S.W.3d 761, 765 (Ky. 2008); Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky. 1959).
CR 60.02(f), the particular subsection invoked by Simmons, is the "catch-all" provision of CR 60.02 and aims "to provide relief where the reasons for the relief are of an extraordinary nature." U.S. Bank, N.A. v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007) (citation omitted). CR 60.02(f) in particular "must be invoked only with extreme caution, and only under most unusual circumstances." Commonwealth v. Gaddie, 239 S.W.3d 59, 62 (Ky. 2007) (footnote omitted).
Before addressing the merits, we are compelled to recognize that this is Simmons's second CR 60.02 motion concerning his parole eligibility and the administrative changes made to the parole-eligibility regulations. "CR 60.02 does not permit successive post-judgment motions[.]" Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). The rule should not be used as an additional opportunity to relitigate issues that should, or could, have been included in prior requests for relief, including a prior CR 60.02 motion. Id.; Baze, 276 S.W.3d at 765 (CR 60.02 was never meant to be used as just another vehicle to revisit issues that should have been included or could have been included in prior requests for relief. Nor is it intended to be used as a method of gaining yet another chance to relitigate previously determined issues.).
We are convinced that the issue raised in Simmons's most recent CR 60.02 motion, the one we now review, could reasonably have been presented in his first CR 60.02 post-conviction motion filed in 2004. He failed to do so. Despite this procedural shortcoming, we will address the merits of his argument.
Simmons disavows any notion that his argument in this appeal is the same as that raised in his first appeal, particularly as it relates to his prior ex post facto claim. Yet his argument, at times, demands that interpretation. We therefore state, unequivocally, that to the extent Simmons's argument in this appeal involves an ex post facto component, we decline to address it. This Court fully resolved the ex post facto issue related to Simmons's parole eligibility in our prior opinion and it remains the law of the case. Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010) ("Law of the case" refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation.").
Simmons states his claim in this appeal centers entirely on his plea agreement and the Commonwealth's failure to honor that agreement. Simmons contends he is entitled to the benefit of the bargain - his plea deal - he struck with the Commonwealth in 1983: life sentences with parole eligibility and to have his case reviewed by the Parole Board every eight years. He argues subsequent amendments to the parole-eligibility regulations effectively altered his sentences from life with parole eligibility to life without the possibility of parole, and forever foreclosed further parole review of his case.
A plea agreement is a binding contract between the government and a defendant. Elmore v. Commonwealth, 236 S.W.3d 623, 626 (Ky. App. 2007). It is a bargained-for exchange governed by basic contract law. Commonwealth v. Morseman, 379 S.W.3d 144, 149 (Ky. 2012). Accordingly, we interpret a plea agreement according to ordinary contract principles. See McClanahan v. Commonwealth, 308 S.W.3d 694, 701 (Ky. 2010) (explaining that, generally, plea agreements in criminal cases are interpreted according to ordinary contract principles).
Ordinary contract principles require that, absent an ambiguity, a written instrument be enforced strictly according to its terms and the contract's meaning discerned from the four corners of the agreement. Frear v. P.T.A. Industries, Inc., 103 S.W.3d 100 (Ky. 2003); Smith v. Crimson Ridge Development, LLC, 410 S.W.3d 619, 621 (Ky. App. 2013) ("A contract is interpreted by looking solely to the four corners of the agreement."). With these basic tenets of contract law in mind, we briefly examine the four corners of the 1983 plea agreement between the Commonwealth and Simmons.
We find no ambiguity in the 1983 plea agreement and Simmons does not argue one exists.
The plea document in this case includes the following promise, and no others, made to Simmons by the Commonwealth in exchange for his guilty plea: the Commonwealth "will recommend two life sentences concurrently [and] will move to dismiss other counts." The plea document references no promise by the Commonwealth to Simmons regarding parole. In fact, the agreement makes no mention of parole at all. The Commonwealth could hardly breach a plea agreement by failing to enforce or adhere to a term that is not contained in that agreement.
Simmons contends "[h]is understanding and expectation under the plea agreement [was] that he would have a life sentence with parole review every eight (8) years." (Appellant's brief, p. 7). However, his understanding is not dispositive of whether an agreement with the Commonwealth regarding parole actually existed. Rather, we must look exclusively to the plea agreement, where we find no mention of parole or parole eligibility. On the face of the agreement, Simmons's plea of guilty was not offered in exchange for any promise related to parole.
We are aware that, if such a promise existed, it would likely be deemed an "unfulfillable promise" for a prosecutor has no authority to bind the Parole Board. See Muhammad v. Kentucky Parole Board, 468 S.W.3d 331, 339 (Ky. 2015) ("The promise can also be "unfulfillable" because the promised benefit, although legal, is one the grant of which is ordinarily entrusted to the discretion of an official other than the prosecutor[.]"); KRS 439.340(1) ("The board may release on parole persons . . . eligible for parole" (emphasis added)). --------
Further, there is no evidence that the Commonwealth promised that Simmons would in fact stand before the Parole Board every eight years. The circuit court generously offered to allow Simmons to file additional evidence - either by affidavit or by way of an evidentiary hearing - as to the terms of his plea agreement with the Commonwealth. Simmons failed to put forth such evidence. There is simply no evidence in this record of any promise by the Commonwealth, either in the parole agreement itself or otherwise, concerning Simmons's parole eligibility.
Simmons also argues that his allegations state a constitutional violation for which relief under CR 60.02 is appropriate. At the risk of repeating what we said in Simmons I, we again emphasize that Simmons is serving a life sentence. He has no guarantee of parole. Parole is a privilege in Kentucky and its denial does not carry any constitutional implications. Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). For a prisoner in Kentucky to have an interest in parole that is protected under the Constitution - the infringement of which gives rise to a constitutional violation - he must have a liberty interest in parole. The parole statute does not create a liberty interest in parole since it does not create an entitlement to parole. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584 (Ky. App. 1996). Simmons has no legitimate expectation of parole release, and the Board's ordering him to serve-out his sentence does not increase his punishment.
Finally, Simmons faults the circuit court for denying his motion without a hearing. His argument is refuted by the record. The circuit court held a lengthy hearing on December 22, 2008, and offered to hold a full evidentiary hearing if so requested by Simmons's counsel. No request was made. This argument is meritless.
In sum, no extraordinary and compelling reasons exist requiring us to grant Simmons equitable relief. We affirm the Warren Circuit Court's December 24, 2014 Order denying Simmons's CR 60.02 motion.
ALL CONCUR. BRIEFs FOR APPELLANT: Danny Edward Simmons, Pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
Simmons, 232 S.W.3d at 534.