JERRY YORK v. COMMONWEALTH OF KENTUCKY
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RENDERED:
December 24, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-2780-MR
JERRY YORK
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 78-CR-000060
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * * * *
BEFORE:
ABRAMSON, BUCKINGHAM, AND EMBERTON, Judges.
ABRAMSON, JUDGE:
Jerry York appeals a September 3, 1996, order
of the Harlan Circuit Court denying his motion for modification
of sentence.
Finding no error, we affirm.
On June 9, 1978, the Harlan County Grand Jury indicted
York on one count of intentional murder (KRS 507.020).
On
September 1, 1978, York appeared in court with counsel and
entered a guilty plea.
On September 29, 1978, the circuit court
entered a final judgment finding York guilty of murder and
sentencing him to twenty-one years in prison.
York entered
prison in October 1978 and received credit for five months and
three days of jail time.
The normal maximum expiration date for
his sentence was calculated by the Kentucky Corrections Cabinet
to be October 5, 1999.
On July 20, 1982, York was granted parole for the first
time.
At that time, York's new conditional release date was
calculated as July 7, 1993, after including a credit of five
years, nine months and twenty-five days for good-time.
After his
parole was revoked for violations, York returned to prison on
February 7, 1994.
York's new maximum expiration date for release
was adjusted to November 19, 2010.
On August 25, 1994, York was
paroled from prison for the second time.
In February 1996, a
warrant was issued for York for parole violation and, after a
hearing, his parole was again revoked.
He returned to prison on
February 29, 1996, and his new maximum release date was
recalculated to May 14, 2012.
On August 9, 1996, York filed a motion for modification
of sentence pursuant to Kentucky Rule of Civil Procedure (CR)
60.02, Kentucky Rule of Criminal Procedure (RCr) 13.04, and KRS
532.120.
York asked the circuit court to give him credit for the
time spent on parole in determining service of his twenty-one
year prison sentence, to appoint counsel and to conduct a
hearing.
On September 3, 1996, the circuit court summarily
denied the motion.
On September 24, 1996, York, by counsel,
filed a motion to reconsider the denial of his motion for
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modification of sentence.
After a brief hearing, the circuit
court denied the motion to reconsider on October 3, 1996.1
York argues that he should receive credit toward the
completion of his prison sentence for the time he spent on
parole.
He notes that his initial release date was October 1999,
but it has been recalculated to the year 2012.
Having spent over
four years in prison and thirteen years on parole, York contends
that extending his release date to nearly thirteen years beyond
the original release date is unjust and constitutes punishment
for being granted parole.
This case is controlled by statute.
KRS 439.344
states:
The period of time spent on parole shall
not count as a part of the prisoner's maximum
sentence except in determining parolee's
eligibility for a final discharge from parole
as set out in KRS 439.354.
KRS 439.354 provides that the time a person spends on parole
effectively counts toward his maximum release date if he has
never violated the terms of parole.
1
It states:
The Commonwealth argues this appeal should be dismissed on
procedural grounds because the appeal was not filed timely. The
circuit court denied the original motion for modification of
sentence on September 3, 1996. York filed the motion to
reconsider the order on September 24, 1996. The circuit court
order denying the motion to reconsider was dated October 2, 1996,
but it was entered on October 3, 1996. The Commonwealth
maintains that the circuit court was without jurisdiction to act
on the motion to reconsider because it was filed beyond the tenday limit under CR 59.05. The exact timing of the various
filings is unclear from the record. Nevertheless, while the
motion to reconsider may have been untimely, the notice of appeal
was filed on October 2, 1996, and plainly states that York was
appealing the September 3, 1996, order. Consequently, the appeal
was filed timely. See CR 73.02.
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When any paroled prisoner has performed the obligations of his
parole during his period of active parole supervision the board
may, at the termination of such period to be determined by the
board, issue a final discharge from parole to the prisoner.
Unless ordered earlier by the board, a final discharge shall be
issued when the prisoner has been out of prison on parole a
sufficient period of time to have been eligible for discharge
from prison by maximum expiration of sentence had he not been
paroled, provided before this date he had not absconded from
parole supervision or that a warrant for parole violation had not
been issued by the board.
(Emphasis supplied).
The grant of parole is a matter of legislative grace
and not a matter of right.
Lynch v. Wingo, Ky., 425 S.W.2d 573,
574 (1968); Belcher v. Kentucky Parole Board, Ky. App., 917
S.W.2d 584, 586 (1996).
The clear implication in KRS 439.344 and
KRS 439.354 is that time spent on parole is not credited toward a
person's release date if he has violated his parole conditions.
Kentucky decisions support this general principle.
In Stokes v.
Howard, Ky., 450 S.W.2d 520 (1970), the court held that a parole
violator, who commits a subsequent crime, is not entitled to
credit for time spent out on parole toward the completion of his
sentences (citing KRS 439.344 and KRS 439.354).
In Wooden v.
Goheen, Ky., 255 S.W.2d 1000, 1002 (1953), the court stated that
parole does not vacate the sentence imposed, but is merely "a
conditional suspension of the sentence."
York contends that parole is a type of custody with
restrictions and should count toward completion of a sentence.
He cites no authority for this proposition which both the
legislature and the Kentucky courts have rejected.
Moreover, KRS
439.344 has been upheld as constitutional by the federal courts.
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See Stokes v. Robuck, 365 F. Supp. 887 (E.D. Ky. 1973), appeal
dismissed, 419 U.S. 988, 95 S. Ct. 298, 42 L. Ed.2d 261 (1974),
aff'd 510 F.2d 973 (6th Cir. 1975).
York argues that justice and fairness require giving
him credit for the time spent on parole.
We disagree with York's
attempt to equate the conditions of parole with those of
imprisonment.
York was granted parole twice, but he was unable
to fulfill his obligation not to abuse the privilege of
additional freedom and was found to have violated his parole
conditions in each instance.
Sentenced to serve twenty-one years
in prison for intentional murder in 1978, York has spent just
over four years incarcerated.
By violating parole, he forfeited
his opportunity to be discharged according to his original
release date.
The motion for modification of his sentence was
properly denied.
Finally, York was not entitled to an evidentiary
hearing.
In Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856
(1983), our Supreme Court stated that a movant is not entitled to
a hearing unless he affirmatively alleges facts which, if true,
would justify granting relief and further alleges special
circumstances that justify CR 60.02 relief.
lacks merit on the face of the record.
York's claim clearly
At the September 27,
1996, hearing, York's counsel responded negatively to the judge's
inquiry as to whether he had any additional evidence beyond that
already submitted in the motion and memorandum.
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Thus, the
circuit court did not err in denying the request for a full
evidentiary hearing.
For the foregoing reasons, we affirm the order of the
Harlan Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Otis Doan
Harlan, Kentucky
A. B. Chandler III
Attorney General
Dina Abby Jones
Assistant Attorney General
Frankfort, Kentucky
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