Opinion
NO. 2015-CA-001203-MR
04-15-2016
STEELY THACKER APPELLANT v. CAROLINE MUDD, CHAIRPERSON, KENTUCKY STATE PAROLE BOARD; LADONNA THOMPSON, COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steely Thacker, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Amy V. Barker Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 10-CI-00652 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON AND STUMBO, JUDGES. COMBS, JUDGE: Steely Thacker appeals from an order of the Franklin Circuit Court dismissing his petition for a writ of mandamus and his subsequent motion to alter, amend, or vacate the dismissal. Thacker is incarcerated. He sought a writ of mandamus requiring the Kentucky State Parole Board to hear his applications for parole. After reviewing the response of the Parole Board, the Franklin Circuit Court summarily dismissed the petition. This appeal followed.
The record reflects that Thacker was convicted in 1980 for three counts of murder and one count of assault. He was sentenced to three life terms. He is currently housed at Eastern Kentucky Correctional Complex in West Liberty. Thacker met with the Parole Board in February 1986, March 1994, March 2002, March 2006, and again in March 2010. After the hearing in March 2010, the Parole Board denied parole and ordered Thacker to serve out his remaining term of imprisonment.
In his brief on appeal, Thacker raises two arguments challenging the Parole Board's decision. First, he argues that a decision that requires him to serve out his remaining term has the unconstitutional effect of increasing his punishment and that it is, therefore, illegal. Second, Thacker asserts that the Board erred by relying upon elements of the crimes for which he was convicted as the basis of its order to serve out the sentence; namely, the seriousness of the violent crimes involving the use of firearms and the resulting loss of a life.
A writ of mandamus is a rare and extraordinary remedy. Ridgeway Nursing & Rehabilitation Facility, LLC v. Lane, 415 S.W.3d 635 (Ky. 2013), citing Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961). "[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 (Ky. 2002). A writ of mandamus compels performance of ministerial acts or duties only -- and not those which require the exercise of an official's discretion: "mandamus will lie where a statute imposes on a public officer a specific duty which he fails or refuses to perform because of an erroneous conclusion by him as to his responsibilities." Id.
The requirements for issuance of a writ have not been met in this case. There is no constitutional right to parole. Morrissey v. Brewer, 805 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1974), see also Seymour v. Colebank, 179 S.W.3d 886 (Ky.App. 2005). Parole is a privilege. Commonwealth v. Polsgrove, 231 Ky. 750, 22 S.W.2d 126 (1929). The Board's decision to grant or deny parole is entirely discretionary. Belcher v. Kentucky Parole Board, 917 S.W.2d 584 (Ky.App. 1996). As our Court has noted,
Finding that relevant criteria have been met does not require the parole board to release an inmate prior to the expiration of sentence; nothing in the parole statutes or regulations mandates the granting of parole or diminishes the discretionary nature of the Parole Board's authority.Garland v. Commonwealth, 997 S.W.2d 487, 489 (Ky.App.1999) (citing Belcher, supra). Since the decision to grant or deny parole is entirely discretionary with the Parole Board, mandamus is not available as a remedy.
Review of a decision of the Parole Board is extremely limited. KRS 439.330(3) specifically provides that "orders of the board shall not be reviewable except as to compliance with the terms of KRS 439.250 to 439.560." Nothing in the record indicates that the Parole Board failed to comply with the statutory provisions governing parole. Thacker was granted consideration for parole on five separate occasions. On each occasion, he was given the opportunity to be heard; the Parole Board made the discretionary decision to deny him parole; and he was apprised of the Board's decision and the reasons for the denial. The statutes do not compel the Board to continue to revisit its decision to deny Thacker's application for parole. Thus, the circuit court did not abuse its discretion by dismissing Thacker's petition.
Kentucky Revised Statutes. --------
The judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Steely Thacker, Pro Se
West Liberty, Kentucky BRIEF FOR APPELLEE: Amy V. Barker
Frankfort, Kentucky