JOHNNY TIPTON v. KENTUCKY STATE PAROLE BOARD
Annotate this Case
Download PDF
RENDERED:
DECEMBER 5, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-000958-MR
JOHNNY TIPTON
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 03-CI-00062
v.
KENTUCKY STATE PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
KNOPF, JUDGE:
Johnny Tipton appeals from an order of the Morgan
Circuit Court dismissing his petition for a writ of mandamus for
failure to state a claim upon which relief can be granted.
For
the reasons stated below, we affirm.
Tipton was convicted in Laurel Circuit Court of firstdegree robbery (Case No. 81-CR-154) and second-degree robbery
(Case No. 81-CR-050).
He received sentences of fifteen years
and five years, respectively, to run consecutively.
In 1984
(Case No. 84-CR-066) and 1988 (Case No. 88-CR-0024) Tipton was
indicted and convicted in Lyon Circuit Court of promoting
contraband.
He received a sentence of one year on each of the
promoting contraband convictions.
All of his sentences were to
run consecutively, for a total of twenty-two years to serve.
While serving his Kentucky sentence, Tipton was
transferred to Nevada, pursuant to the Interstate Agreement on
Detainers,1 to stand trial on a homicide committed in October
1980.
On October 9, 1989, Tipton entered a guilty plea to
second-degree murder in the Third Judicial District Court of
Nevada and was sentenced to fifteen years imprisonment.
The
judgment of conviction stated that the sentence “is to be served
concurrent with those sentences imposed in the State of Kentucky
in case #81CR050 (count 1), #81CR050 (count 2), #81CR154,
#84CR066, and #88CR024[.]”
In June 1997, Tipton was granted parole by the
Kentucky Parole Board (Board), upon condition that, pursuant to
a Nevada detainer, he be transferred to the State of Nevada to
complete his fifteen-year-Nevada sentence.
On December 7, 1998,
Tipton was paroled by the State of Nevada, and Tipton returned
to Kentucky to continue serving his parole under the supervision
of the Board.
1
See KRS 440.450 et seq.
2
Following his return to Kentucky, in March 1999,
Tipton’s Kentucky parole was revoked.
On April 11, 2000, the
Board again granted Tipton parole, but, similar to the Nevada
situation, Tipton, pursuant to a Tennessee detainer, was
transferred to Tennessee to serve time for crimes committed
there.
The record does not disclose the details of the
Tennessee crimes or the disposition thereof; however, it appears
that Tennessee released Tipton in November 2000 and Tipton again
commenced his parole supervision in Kentucky.
In April 2002,
the Board again revoked Tipton’s parole.
On March 11, 2003, Tipton filed a petition for a writ
of mandamus pursuant to CR 81 in Morgan Circuit Court seeking to
compel the Board to give him credit on his Kentucky sentence for
the time he spent incarcerated in Nevada and Tennessee.
On
April 1, 2003, the Board2 filed a motion to dismiss for failure
to state a claim upon which relief can be granted pursuant to CR
12.02(f) on the ground that the Board is not vested with the
authority to take the action requested by Tipton.
The Board
argued that the Kentucky Department of Corrections, rather than
2
Noting that if Tipton had named the proper respondent in his
petition for writ of mandamus, the General Counsel for the
Kentucky Department of Corrections entered an appearance on
behalf of the Board and submitted the motion to dismiss.
Similarly, though the Board is named as the appellee in this
appeal, the brief was prepared by the General Counsel for the
Department of Corrections.
3
the Board, is vested with the authority to grant the relief
sought by Tipton, i.e., to grant him credit for the time served
in Nevada and Tennessee.
On April 9, 2003, the circuit court entered an order
granting the Board’s motion to dismiss, noting that “the
Kentucky Parole Board is not a proper Respondent to this
Petition, as the Board has no authority to award or calculate
the sentence credit that the Petitioner seeks.”
This appeal
followed.
When a party moves to dismiss a claim under CR
12.02(f), “[t]he [circuit] court should not grant the motion
unless it appears the pleading party would not be entitled to
relief under any set of facts which could be proved in support
of his claim.”3
“In reaching its decision, the circuit court is
not required to make any factual determination; rather, the
question is purely a matter of law.
Stated another way, the
court must ask if the facts alleged in the complaint can be
proved, would the plaintiff be entitled to relief?”4
KRS 439.330(1) defines the duties of the Board as
follows:
The board shall:
3
Pari-Mutuel Clerks’ Union v. Kentucky Jockey Club, Ky., 551
S.W.2d 801, 803 (1977).
4
Bagby v. Koch, Ky. App., 98 S.W.3d 521, 522 (2002).
4
(a) Study the case histories of persons
eligible for parole, and deliberate on
that record;
(b) Conduct hearings on the desirability of
granting parole;
(c) Impose upon the parolee or conditional
release such conditions as it sees fit;
(d) Order the granting of parole;
(e) Issue warrants for persons charged with
violations of parole and conduct
hearings on such charges, subject to the
provisions of KRS 439.341;
(f) Determine the period of supervision for
parolees, which period may be subject to
extension or reduction after
recommendation of the cabinet is
received and considered;
and
(g) Grant final discharge to parolees.
Calculation of credits for time served is not among
the duties defined for the Board under KRS 439.330(1).
The effect of parole time on a parolee’s sentence,
which is the issue in this case, is controlled by KRS 439.344.5
5
KRS 439.344 provides that “The period of time spent on parole
shall not count as a part of the prisoner’s maximum sentence
except in determining the parolee’s eligibility for final
discharge from parole as set out in KRS 439.354.” “KRS 439.354
provides as follows: 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.”
5
The Department of Corrections is responsible for calculation of
the maximum and minimum expiration dates under KRS 439.344.6
We accordingly agree with the circuit court that Tipton named
the wrong respondent in his petition for a writ of mandamus, and
the petition was properly dismissed for failure to state a claim
upon which relief can be granted because, even if Tipton is
correct, the Board does not have the authority to grant Tipton
the relief time he sought in his petition.
However, we also note that Tipton was incorrect on the
merits.
Kassulke v. Briscoe-Wade7 squarely addressed the issue
of whether a parolee serving a sentence in another state which
is to run concurrently with a Kentucky sentence is entitled to
credit against his Kentucky sentence for the time served in the
other state.
Kassulke held that a parolee is not entitled to
such credit.
Thus, even if Tipton had named the proper
respondent in his writ of mandamus, he would not have been
entitled to credit against his Kentucky sentence for the time he
served in Nevada and Tennessee.
For the foregoing reasons the judgment of the Morgan
Circuit Court is affirmed.
ALL CONCUR.
6
See Kassulke v. Briscoe-Wade, Ky., 105 S.W.3d 403, 405 (2003).
7
Id.
6
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Johnny Tipton, pro se
East KY Correctional Complex
West Liberty, Kentucky
Brenn O. Combs
Kentucky Justice Cabinet
Department of Corrections
Office of General Counsel
Frankfort, Kentucky
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
