HILL (KENT) VS. THOMPSON (LADONNA)
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000015-MR
KENT HILL
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NOS. 08-CI-01126, 08-CI-01734, & 08-CI-01740
LADONNA THOMPSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, CLAYTON, AND DIXON, JUDGES.
CAPERTON, JUDGE: Appellant, Kent Frank Hill, appeals the Franklin Circuit
Court’s December 12, 2008, order denying three petitions filed by Hill for
declaration of rights1 under House Bill 406 and the rules of policy and procedure of
1
We note that Hill filed three cases seeking declaration of his rights, which were docketed as 08CI-1126, 08-CI-1734, and 08-CI-1740. In two of those cases, Hill sought a declaration of rights
under House Bill 406, which gives parolees credit for street time against the remaining sentence
to be served when returned to jail. In the case docketed 08-CI-1740, Hill sought a declaration of
Appellee, the Kentucky Department of Corrections (DOC). After a thorough
review of the record, the arguments of the parties, and the applicable law, we
affirm.
Hill is a prison inmate serving a 28-year sentence for numerous felony
convictions. Hill was paroled on or about July 30, 1993. On March 7, 1995, a
parole violation warrant was issued, the stated basis of which was “absconding
from parole supervision.”2 Shortly thereafter, on April 8, 1995, Hill committed the
felony of Theft by Unlawful Taking for which he was arrested and jailed.
Thereafter, while Hill remained in jail, the aforementioned parole violation warrant
was served upon him on May 26, 1995. Hill was ultimately not convicted on the
new felony until April 23, 1996, after he had already returned to prison for the
parole violation.
After returning to prison, Hill filed multiple petitions for declaration
of rights with the Franklin Circuit Court as previously noted herein. Two of those
petitions sought a declaration of his rights under House Bill 406, which grants
parole supervision credit, and the third petition sought a declaration of his rights
pursuant to the DOC’s Kentucky Corrections Policy and Procedures (CPP) 15.3,
which addresses awards of meritorious good time. In the interest of efficiency, the
court below disposed of all three cases in one order of December 12, 2008. In that
his rights under the DOC Policy and Procedure 15.3, which sets forth the process by which
inmates are awarded meritorious good time. The court below disposed of all three cases in a
single December 12, 2008 order.
2
See Appendix #1, Kentucky Corrections Resident Record Card.
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order, the Court found that the DOC correctly applied both House Bill 406 and
CPP 15.3 as it concerned Hill and dismissed each petition with prejudice. It is
from that order of denial that Hill now appeals to this Court.
In reviewing the petitions filed by Hill, we note that in his first two
petitions, filed under case numbers 08-CI-1126 and 08-CI-1734, Hill asserted that
he should receive credit pursuant to the provisions of House Bill 406 for the time
he spent on parole. House Bill 406 states with respect to this issue:
Probation and Parole Credit: Notwithstanding KRS
439.344, the period of time spent on parole shall count as
a part of the prisoner’s remaining unexpired sentence
when it is used to determine a parolee’s eligibility for a
final discharge from parole as set out in subsection (5) of
this section or when a parolee is returned as a parole
violator for a violation other than a new felony
conviction.
H.R. 406, Reg. Sess. (Ky. 2008).
The 2009 Legislature in Regular Session amended KRS 439.344(2) to
read:
The period of time while on parole shall count as part of
the prisoner’s maximum sentence, except when a parolee
is:
(1) Returned to prison as a parole violator for a new
felony conviction;
(2) Classified as a violent offender pursuant to KRS
439.3401; or
(3) A registered sex offender pursuant to KRS 17.500 to
17.580.
Hill argues that based upon the language of HB 406, he should be given parole
credit as a parolee who was “returned as a parole violator for a violation other than
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a felony conviction.” Hill argues that he should receive the credit because he was
returned to prison for absconding from parole supervision and not for a new felony
conviction on the Theft by Unlawful Taking charge.3 Hill argues that taking the
statutory language literally and applying it to his case would grant him 586 days of
credit towards his maximum sentence.
In response, the DOC argues that the specific interpretation of the
statute asserted by Hill creates a result that goes against both the spirit of the law
and the general intent of the legislative body that drafted and enacted it. The DOC
reasons that the general purpose for disallowing credit for “street time” for those
returning to prison for a new felony conviction is to incentivize parolees against
committing new felonies while out on parole and to punish those who continue to
disobey the law. The DOC further asserts that those that commit felonies while out
on parole should not be allowed to receive credit under the newly amended statute,
whether or not they have been convicted of the felony by the time they were sent
back to prison.
At the outset, we note that the construction and application of statutes
is a matter of law and may be reviewed de novo. See Bob Hook Chevrolet Isuzu,
Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). We
therefore review the statute without reference or deference to the statutory
interpretation of the circuit court. See Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.
App. 1998). Further, we note that a court has a duty to accord to words of a statute
3
Hill was convicted of the charge after his parole was revoked and he had been returned to
prison on another violation (not a new felony conviction).
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their literal meaning unless to do so would lead to an absurd or wholly
unreasonable conclusion. See Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984);
Kentucky Unemployment Ins. Comm’n v. Jones, 809 S.W.2d 715, 716 (Ky. App.
1991).
Clearly, this case rests on an interpretation of the wording of KRS
439.344, specifically as it pertains to credit toward a criminal sentence for time
spent on parole by a parolee. Having reviewed the statute, this Court agrees with
the DOC that a literal interpretation of the statute appears to go against not only the
clear intent of the legislature but also against general common sense. Indeed, there
is a presumption that the legislature will not intend an absurdity. See Overnite
Transp. Co. v. Gaddis, 793 S.W.2d 129, 131 (Ky. App. 1990), citing Valla v.
Preston Street Road Water District No. 1 of Jefferson County, 395 S.W.2d 772
(Ky. 1965). As this Court is unwilling to interpret the statute in a manner which
would indeed lead to an absurd result, we affirm for the reasons set forth herein
below.
In reviewing the statute we note, under the literal interpretation argued
by Hill, that a parolee who is charged with a new felony while out on parole might
undergo a parole violation proceeding yielding different, if not conflicting, results
depending on the grounds used for revocation.
The anomaly presented by a literal interpretation of the statute would
occur when comparing two parolees, both of whom have new felony convictions
but one has additional potential parole violations while the other has no other
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potential violations. Consider the situation where a parolee has, as his only
potential violation, a new felony charge and the ultimate conviction thereon serves
as the sole basis for the parole violation and, thus, the parolee does not receive
credit for time spent on parole. In contrast, consider a parolee who has multiple
potential violations, one of which is a new felony of which he is ultimately
convicted and, by mere happenstance, is revoked on a violation other than the new
felony conviction and, thus, does receive credit for time spent on parole.
The DOC argues, and we agree, that the legislative purpose for
disallowing credit for “street time” for those returning to prison on a new felony
conviction is to incentivize parolees against committing new felonies while out on
parole and to punish those who continue to disobey the law. Our legislature, in its
wisdom, has sought to achieve a perfect result in a less than perfect world. In
enacting this bill into law, the legislature surely did not intent to create a windfall
for a repeat felon by allowing a parolee who has numerous violations, and one so
serious as a new felony, to receive credit for time on parole if the violation for
which he is ultimately returned to prison is not the new felony conviction itself.
Accordingly, it is our opinion that the intent of this statute was clearly
to reward those parolees who maintained, in a general sense, law-abiding behavior
while serving on parole. Conversely, it was also obviously intended by the
legislature that those parolees who could not maintain a respect for the laws of this
Commonwealth be punished appropriately along the guidelines of their original
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sentence(s), as evidenced by an exception to the credit for violators with a new
felony conviction or convictions.
A literal interpretation of this exception would lead to situations like
the matter sub judice, where a lifelong perpetual criminal is receiving credit for
time spent while out on the streets, even when committing new felonies and
abusing all aspects of our justice system. Accordingly, we must agree with the
DOC that a literal interpretation goes against both the spirit and intent of the law,
as well as against the general well-being and safety of the Commonwealth. We
simply cannot believe that the legislature intended the absurd result which would
follow from a literal interpretation of the statute asserted by Hill. Therefore, for
the foregoing reasons, we reject Hill’s argument and find that he is not entitled to
credit against his sentence for time spent while on parole.
Therefore, we hereby affirm the circuit court’s order on the appeals
taken from case numbers 08-CI-1126 and 08-CI-1734. Having so found, we now
address the appeal taken from case number 08-CI-1740.
Hill asserts entitlement to meritorious good time credit pursuant to
CPP 15.3, which sets forth the process by which awards of meritorious good time
are to be considered. KRS 197.045(3) addresses the award of meritorious good
time, providing that:
An inmate may, at the discretion of the commissioner, be
allowed a deduction from a sentence not to exceed five
(5) days per month for performing exceptionally
meritorious service or performing duties of outstanding
importance in connection with institutional operations
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and programs. The allowance shall be an addition to
commutation of time for good conduct and under the
same terms and conditions and without regard to length
of sentence.
In October of 2008, Hill filed a petition for declaration of rights
asserting that he was denied due process of law when the DOC failed to consider
and timely act upon his eligibility for meritorious good time credit totaling 335
days. Hill argues that good time credit accumulated prior to his release from
prison in 1993 was not awarded. Hill requested credit for the accumulated good
time upon his return to prison for parole violation in 1995. The request was denied
by the DOC, reminding Hill that good time was a privilege and not a right.
The Commonwealth objected to Hill’s request for relief on three
grounds: (1) because Hill escaped from prison before the DOC had an opportunity
to consider his eligibility in 1995, Hill lost his status as a model prisoner entitled to
MGT; (2) the DOC’s policies and procedures relating to MGT do not confer any
right or entitlement upon an inmate to receive MGT, regardless of the inmate’s
behavior while incarcerated; and (3) Hill’s petition was barred by the one-year
statute of limitations set forth under KRS 413.140, because 13 years had lapsed
between 1995 and the time Hill brought the petition.
In reviewing this matter, the court below agreed with each of the
Commonwealth’s arguments on this issue and dismissed Hill’s petition
accordingly. Having reviewed the applicable law, we are in agreement with the
circuit court, and therefore affirm.
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The law in this Commonwealth as it pertains to awards of meritorious
good time is clear. Such awards are entirely discretionary and inmates possess no
automatic entitlement to them. See Anderson v. Parker, 964 S.W.2d 809 (Ky.
App. 1997). Further, while it is true that an individual is entitled to due process
under the Fourteenth Amendment before his life or property can be taken from
him, an inmate making such a claim must demonstrate that he was deprived of a
protected liberty or property interest by arbitrary governmental action. See
Williams v. Bass, 63 F.3d 483, 485 (6th Cir. 1995). It is the well-established law
of this Commonwealth that an inmate has no liberty interest in the receipt of
meritorious good time under KRS 197.045(3) since it is awarded entirely at the
discretion of the DOC. See Anderson, supra; see also Martin v. Chandler, 122
S.W.3d 540, 551 (Ky. 2003).
In the matter sub judice, the DOC had the discretion whether to award
good time to Hill. The DOC exercised that discretion appropriately, particularly in
light of Hill’s successful escape during the time that he was being considered for a
good time award. We do not find that the DOC in any way abused its discretion in
declining to make such an award.
Regardless, and with respect to Hill’s assertions that he was not
considered for meritorious good time at all between 1990 and 1993, and again in
1995, we find that the statute of limitations set forth in KRS 413.140 bars such an
action in any event. Clearly, under the law of this Commonwealth, an action for
declaration of rights alleging a violation of constitutional rights is subject to the
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one-year statute of limitations set forth in KRS 413.140. See Million v. Raymer,
139 S.W.3d 914 (Ky. 2004).
As in the matter sub judice, Raymer was a Kentucky prison inmate
who filed a declaratory judgment action pursuant to KRS Chapter 418, alleging
that correctional officers had denied him due process of law. In reviewing the
matter, the Supreme Court held that the one-year statute of limitations was
applicable to Raymer’s claim. Accordingly, even if we had not found meritorious
good time awards to be discretionary, we would nevertheless affirm the circuit
court’s finding that Hill’s claims in this regard are barred by the aforementioned
limitations statute.
Accordingly, for the foregoing reasons, we hereby affirm the
December 12, 2008, order of the Franklin Circuit Court, the Honorable Thomas D.
Wingate, presiding.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kent Frank Hill, Pro Se
LaGrange, Kentucky
Wesley W. Duke
Frankfort, Kentucky
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