Opinion
No. 107,575.
2013-01-18
Preston J. BRISCOE, Appellant, v. KANSAS PAROLE BOARD, et al., Appellees.
Appeal from Norton District Court; Preston Pratt, Judge. Preston J. Briscoe, appellant pro se. Robert E. Wasinger, of Kansas Department of Corrections, of Norton, for appellees.
Appeal from Norton District Court; Preston Pratt, Judge.
Preston J. Briscoe, appellant pro se. Robert E. Wasinger, of Kansas Department of Corrections, of Norton, for appellees.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The Kansas Parole Board (KPB) revoked Preston Briscoe's postrelease supervision and ordered him to serve the remainder of his postrelease period in prison. Briscoe subsequently filed a K.S.A. 60–1501 petition and a motion for appointment of counsel, which the district court summarily denied. On appeal, Briscoe raises two issues. First, he contends the district court erred because the KPB did not have authority, under K.S.A.2011 Supp. 75–5217, to order him to serve the remaining balance of his postrelease supervision. Second, Briscoe claims his petition presented substantial questions of law or fact warranting the appointment of counsel.
Factual and Procedural Background
In 1997 Briscoe was convicted of attempted second-degree murder and criminal possession of a firearm. He was sentenced to a controlling prison term of 168 months. Briscoe v. State, No. 89,629, 2003 WL 22938051, at *1 (Kan.App.2003) (unpublished opinion). On May 28, 2009, the Kansas Department of Corrections (KDOC) released Briscoe to serve the postrelease supervision portion of his sentence. This portion of Briscoe's sentence was scheduled to expire on March 17, 2014.
About 3 months after his release on postrelease supervision, Briscoe began violating the terms of his supervision. Primarily, Briscoe continually used illegal narcotics. In particular, he admitted to using marijuana on August 14, 2009, November 20, 2009, January 19, 2010, and July 1, 2010. Similarly, on January 20, 2010, Briscoe admitted that drug paraphernalia and a small amount of marijuana found during a search of his residence belonged to him. As a result, on July 2, 2010, Briscoe pled guilty, pursuant to a plea agreement, to possession of drug paraphernalia. Additionally, on May 20, 2010, Briscoe was convicted in Salina Municipal Court of domestic violence battery which occurred on October 18, 2009.
On August 25, 2010, Briscoe's parole officer issued an arrest and detain order for Briscoe. The order alleged that Briscoe violated the conditions of his postrelease supervision by associating with “subjects involved in drug trafficking and weapons violations.” Later that same day, officers arrested Briscoe after conducting a residence check on his house. During this arrest, officers discovered “flakes of marijuana” in Briscoe's pockets, marijuana and drug paraphernalia inside the house, and Briscoe's roommate flushing marijuana down a toilet. As a result, Briscoe was charged in Saline County for possession of marijuana and drug paraphernalia. The State subsequently dismissed these charges, however, upon Briscoe's agreement to testify in an attempted murder case.
On September 14, 2010, the KDOC charged Briscoe with three violations of his postrelease supervision. Briscoe was charged with the admitted use of marijuana on July 1, 2010, association with “subjects involved in drug trafficking and weapons violations” on August 25, 2010, and possession of marijuana and drug paraphernalia on August 25, 2010. Three days later, the KDOC charged Briscoe with the additional violation of possession of firearms on August 26, 2010.
The KDOC subsequently served Briscoe with a “Statement of Charges/Notice of Preliminary Hearing” formally advising him of these charges and the preliminary hearing process. Briscoe waived his right to a preliminary hearing, and he acknowledged that by waiving this hearing, probable cause would be established against him. Briscoe further acknowledged that he understood he was not entitled to a preliminary hearing regarding any charges involving a violation of federal and state laws or municipal and county ordinances because probable cause for such violations would be determined in a court of law.
On November 10, 2010, the KDOC served Briscoe with a “Notice of Revocation Hearing” informing him of a hearing before the KPB to consider whether the following alleged conditions violations were sufficient to warrant revocation of his postrelease supervision:
• Narcotics/Alcohol: Admitted use of marijuana on or about 08/14/2009
• Narcotics/Alcohol: Admitted use of marijuana on or about 11/20/2009
• Laws: Conviction for possession of drug paraphernalia, on or about 01/20/2010, in Saline County District Court
• Narcotics/Alcohol: Admitted use of marijuana on or about 01/19/2010
• Laws: Conviction for domestic violence battery, on or about 10/18/2009, in Saline Municipal Court
• Narcotics/Alcohol: Admitted use of marijuana on or about 07/1/2010
• Association: Association with subjects involved in drug trafficking and weapons violations on or about 08/25/2010
• Narcotics/Alcohol: Possession of marijuana and drug paraphernalia on or about 08/25/2010
• Laws: The filing of charges, which were subsequently dismissed, in Saline County District Court for possession of marijuana and possession of drug paraphernalia on or about 08/25/2010
• Weapons: Admitted possession of firearms on or before 08/26/2010
Briscoe acknowledged receipt of the notice and invoked his right to testify at the revocation hearing. Although the KDOC advised Briscoe that he had the right to request witnesses, the right to have his parole officer present for questioning, and the right to request an attorney, Briscoe waived all these rights.
The revocation hearing was held on November 19, 2010. On December 8, 2010, the KPB issued a “Final Action Notice.” This notice informed Briscoe that the KPB dismissed the narcotics/alcohol violation he allegedly committed on August 14, 2009. Based on Briscoe's own admissions, however, the KPB found Briscoe guilty of the following violations: (1) use of marijuana on November 20, 2009; (2) conviction of possession of drug paraphernalia on January 20, 2010; (3) use of marijuana on January 19, 2010; (4) conviction of domestic violence battery on October 18, 2009, and (5) use of marijuana on July 1, 2010.
Briscoe had denied the remaining charges, but after considering his testimony and reviewing the “OMIS Face Sheet,” the “KASPER Printout,” and the parole officer's violation report, the KPB also found him guilty of these violations. As a result, Briscoe's postrelease supervision was revoked and he was ordered to serve the remaining balance of his postrelease period in prison.
In an effort to exhaust his administrative remedies, Briscoe sent two letters to the KPB requesting reconsideration. On December 30, 2010, Marie McNeal, Administrator of the KPB, informed Briscoe that the KPB had “reviewed [his] case and determined there [would] be no change in their previous decision.
On January 27, 2011, Briscoe filed a pro se petition for writ of habeas corpus under K.S.A. 60–1501, claiming the KPB's decision to revoke his postrelease supervision violated his rights under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment's prohibition against cruel and unusual punishment. Briscoe argued that under K.S.A.2011 Supp. 75–5217 and K.A.R. 45–500–3, the KPB could only sanction him to a confinement period of 6 months because his violations did not involve “a conviction of a new crime.” Although Briscoe acknowledged his two misdemeanor convictions, he argued that under the KDOC's Internal Management Policy and Procedure (IMPP) 14–137, the KPB could not rely upon these convictions as a reason for revocation because the parole officer had already sanctioned him for these violations. Briscoe asserted that the parole officer utilized his “broad d[i]secretion” to impose “alterative sanctions” in lieu of revocation, i.e., ordering him to attend a “Domestic Batterer's Intervention Program” and a “Drug Rehabilitation Program.” Briscoe indicated that he had unsuccessfully attempted to obtain copies of the diversion agreements regarding these two programs.
On February 7, 2011, the district court issued a partial writ of habeas corpus directing the KPB to file an answer or alternatively to file a copy of the “document(s) that resulted in the revocation of [Briscoe's] post release supervision.” The KDOC complied by providing the materials, including several confidential documents for which the KDOC requested in camera review. Shortly thereafter, Briscoe responded, alleging that the documents actually proved his parole officer only intended to revoke his postrelease supervision for technical violations, because his convictions were not listed on the arrest and detain order or the “Statement of Charges/Notice Of [Preliminary] Hearing.”
In the meantime, on February 22, 2011, Kathleen Graves, KDOC's Parole Services Manager sent Briscoe a letter regarding his “grievance” about the KPB's decision to consider his two misdemeanor convictions. Graves explained that based on her review of the file, the parole officer did not resolve his conviction for drug paraphernalia on January 20, 2010. Graves explained that the parole officer referred Briscoe to the drug treatment program based on his admitted marijuana use on January 19, 2010, not his arrest for this offense on January 20, 2010. According to Graves, the parole officer deferred the resolution of Briscoe's misdemeanor violations “pending the outcome of the court proceedings.”
Briscoe sent a copy of Graves' letter to the district court with his response. Briscoe explained that although he could contest Graves' contention that his referral to a drug treatment program was due to his admitted usage rather than his arrest, he would “let that particular [argument] of her's stand.” According to Briscoe, assuming Graves' contention was accurate, the KPB still could not utilize this conviction as a basis for revocation. Briscoe explained that his parole officer was in the courtroom when he pled guilty to possession of drug paraphernalia, and 2 days later, Briscoe was instructed to continue the intervention program. Briscoe argued that the parole officer's decision not to revoke him within 3 days of his conviction qualified as a resolution of this violation, because under IMPP 14–137, parole officers are required to initiate a response within 3 working days. Moreover, Briscoe argued that IMPP 14–137 further requires the parole officer supervising the case to resolve all violations, and as such, another parole officer had no authority to resolve a violation that occurred under a prior parole officer's supervision.
On August 22, 2011, Briscoe moved for appointment of counsel because the “legal issues [were] complex,” he had “limited knowledge of the law,” and the legal materials in the prison library were available only “on a restricted basis.”
One month later, on September 22, 2011, the district court denied Briscoe's motion for appointment of counsel and summarily dismissed his K.S.A. 60–1501 petition. The district court noted that Briscoe was served with a copy of the “Final Notice of Hearing,” which set forth the alleged violations, including his misdemeanor convictions, and, therefore, Briscoe “knew or should have known” that he had been charged with these violations. The district court also explained that under K.A.R. 45–500–2, the KPB shall consider “all relevant evidence” and “[c]onvictions while on postrelease supervision are certainly relevant.” The district court determined:
“Although [Briscoe] argues the parole board is required to ignore [his] convictions because his parole officer gave him alternative sanctions, that argument is contrary to the plain language of the statute and the regulations. The parole board was required to consider this relevant evidence. Because [Briscoe] did have misdemeanor convictions during the term of postrelease supervision the parole board was not limited to the 6 month period of confinement as argued by [Briscoe], Under both KSA [2011 Supp.] 75–5217(d) and KAR 45–500–3 the parole board was required to determine the appropriate period of confinement, which can be up to the maximum allowed. The parole board was within its rights to require [Briscoe] to serve his sentence to the discharge date.”
Briscoe filed a timely pro se appeal.
Summary Dismissal
Briscoe contends the district court erred when it summarily denied his K.S.A. 60–1501 petition because the KPB's decision to revoke his postrelease supervision violated his constitutional rights. The State responds that the KPB complied with all applicable statutes and regulations during the proceedings and appropriately used its discretion to order Briscoe to serve the remaining balance of his postrelease supervision period.
When determining whether a K.S.A. 60–1501 petition states a claim for relief, district courts examine the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). The district court is entitled to summarily dismiss a K.S.A. 60–1501 petition “[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court.” K.S.A.2011 Supp. 60–1503(a).
Appellate courts apply de novo review to a district court's summary denial of a K.S.A. 60–1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). We are required to accept as true the allegations in the petition to determine whether the facts alleged and the reasonable inferences that can be drawn from them state a claim for relief. Schuyler, 285 Kan. at 679. See Hill v. Simmons, 33 Kan.App.2d 318, 320, 101 P.3d 1286 (2004) (court must determine whether a claim is stated on any possible theory, not just the theory asserted by petitioner). Nevertheless, “ ‘[w]hile habeas corpus is the appropriate procedure for reviewing decisions of the [KPB], appellate review is limited to determining if the [KPB] complied with the applicable statutes and whether its action was arbitrary or capricious.’ [Citations omitted.]” McComb v. State, 32 Kan.App.2d 1037, 1040, 94 P.3d 715,rev. denied 278 Kan. 846 (2004). Whether the petitioner's constitutional rights were violated, however, is a question of law subject to unlimited review. 32 Kan.App.2d at 1041.
In his petition, Briscoe raised two claims. First, he alleged that the KPB violated his rights under the due process clause. Under this claim, an appellate court applies the following two-step analysis: “The first step is to determine whether the State has deprived the inmate of life, liberty, or property. If there has been a deprivation ... due to State action, the second step is to determine the extent and nature of the process due. [Citation omitted.]” Washington v. Roberts, 37 Kan.App.2d 237, 240, 152 P.3d 660 (2007) (citing Hogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 [2005] ). While it appears the minimum due process rights to which an individual is entitled in postrelease revocation proceedings have not been precisely defined, the United States Supreme Court has defined the procedural due process requirements for parole and probation revocation proceedings as follows:
“Minimum due process includes written notice of the claimed violations ..., disclosure ... of the evidence against him or her, the opportunity to be heard in person and to present evidence and witnesses, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, [the right to an attorney in some circumstances,] and a written statement by the factfinder as to the evidence relied on and reasons for revoking probation.” State v. Billings, 30 Kan.App.2d 236, 238, 39 P.3d 682 (2002) (citing Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 [1985] ).
Given the similarities in parole, probation, and postrelease supervision, we are persuaded that the above due process guarantees are also applicable in this case.
For his second claim, Briscoe alleged the KPB violated the Eighth Amendment's prohibition against “cruel and unusual punishment.” This amendment prohibits punishments which are “cruel and unusual either by the method of punishment or the length of sentence. [Citation omitted.]” McComb, 32 Kan.App.2d at 1048. “Kansas courts have defined cruel and unusual punishment to mean treatment which is ‘inhumane, barbarous, or shocking to the conscience. [Citations omitted.]’ “ 32 Kan.App.2d at 1048.
Although Briscoe mentions these constitutional claims, he never specifically explains how the KBP's decision violated his rights. A point raised incidentally in a brief and not argued therein is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Moreover, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Yet, assuming Briscoe had supported his constitutional claims with proper authority, his argument would still fail.
First, the record shows that the KPB afforded Briscoe all of the minimum guarantees of due process. He was offered a preliminary hearing, he was given written notice of the violations, he had the opportunity to testify and to present witnesses or documentary evidence, he had the right to confront his parole officer, he had the right to request the assistance of counsel, he was provided a revocation hearing, and he received a written statement detailing the evidence and the reasons for the KPB's decision. See Billings, 30 Kan.App.2d at 238.
Second, the crux of Briscoe's argument appears to be that the KPB did not have authority, under K.S.A.2011 Supp. 75–5217, to order him to serve the remaining balance of his postrelease supervision. Briscoe argues that the KPB was limited to imposing a 6–month period of confinement, as specified in K.S.A.2011 Supp. 75–5217(b), because his two misdemeanor convictions were not at issue in the revocation proceeding. According to Briscoe, these violations were resolved by either imposing participation in a domestic batterer's intervention program and a drug rehabilitation program, or by failing to institute a revocation action within 3 days as required by IMPP 14–137.
We are not persuaded. K.S.A.2011 Supp. 75–5217 outlines the procedures for handling violations of release conditions and the appropriate revocation sanctions. When the KPB revokes an inmate's postrelease supervision for violations other than “a conviction for a new felony or misdemeanor,” the KPB shall impose a 6–month period of confinement. K.S.A.2011 Supp. 75–5217(b). If, however, the revocation is due to “a conviction for a new misdemeanor,” the KPB has discretion to order the inmate to “serve a period of confinement ... which shall not exceed the remaining balance of the period of postrelease supervision.” K.S.A.2011 Supp. 75–5217(d).
Based upon our careful review of the confidential documents the KPB submitted to the district court for in camera review, it is clear that Briscoe's argument is meritless. Briscoe's misdemeanor convictions were not resolved as he claims. The record substantiates that Briscoe successfully completed an intervention, in lieu of revocation, because of his admitted use of marijuana on August 14, 2009, and January 19, 2010. Moreover, two additional interventions were attempted, i.e., substance abuse treatment and outpatient anger management; however, neither of these interventions were successful due to Briscoe's actions. In particular, Briscoe failed to comply with the rules of the substance abuse treatment program, and he refused to enter the outpatient anger management program. Although the closing summary does not specify which violations these two interventions were supposed to resolve, presumably, they were ordered with respect to Briscoe's misdemeanor convictions, as the parole officer recommended revocation for each of these violations.
Briscoe argues, however, that assuming he did not successfully complete his intervention programs, the KPB had no authority to revoke him for the original misdemeanor violations, and in support of this contention, he cites IMPP 14–110. Yet, IMPP 14–122(XII)(B) clearly states, “[o]ffenders who fail to complete [a] community placement or pre-revocation program may be subject to revocation.” Similarly, according to IMPP 14–137(IV)(B)(7), all interventions “shall be evidenced by a written agreement that specifies ... that failure to abide by the terms of the diversion agreement may result in the original violations being used in a revocation proceeding.” As a result, because Briscoe failed to successfully complete either of the intervention programs, the KPB was entitled to consider his misdemeanor convictions as revocable violations. And under K.S.A.2011 Supp. 75–5217(d), the KPB also had discretion with regard to the period of confinement. Based upon the number of Briscoe's violations, the KPB's decision to order Briscoe to serve the remainder of his postrelease supervision period was not arbitrary or capricious.
Appellate courts may uphold the district court's judgment if it reached the correct result, regardless of its rationale. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007). We hold the district court did not err in summarily dismissing Briscoe's K.S.A. 60–1501 petition for failure to state a claim because his petition did not allege “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” See Schuyler, 285 Kan. at 679. Moreover, Briscoe was afforded his full measure of due process, the KPB complied with the applicable statutes, and its action was neither arbitrary or capricious.
Failure to Appoint Counsel
For his second issue on appeal, Briscoe challenges the district court's failure to appoint counsel for the proceedings below. He contends that as an indigent person, he was entitled to the assistance of counsel, under K.S.A. 22–4506(b), because his K.S.A. 60–1501 petition “presented a substantial question of law or factual questions requiring resolution.” The State supports the district court's decision and asserts: “There is no statutory right to legal counsel in [a] K.S.A. 60–1501 action, nor has the respondent found any case law setting out such a right.” We disagree with both Briscoe and the State.
There is no constitutional right to counsel in collateral actions, such as K.S.A. 60–1501 proceedings, because these actions are civil rather than criminal in nature. Holt v. Saiya, 28 Kan.App.2d 356, 362, 17 P.3d 368 (2000). Indigent persons, however, do have a statutory right to counsel if “the petition or motion presents substantial questions of law or triable issues of fact.” K.S.A. 22–4506(b); see Holt, 28 Kan.App.2d at 362. Given our analysis of the merits of Briscoe's K.S.A. 60–1501 petition, however, we conclude that he failed to present substantial questions of law or fact sufficient to warrant the appointment of counsel. Accordingly, the district court did not err.
Affirmed.