Mark Cranmer v. Justice and Public Safety Cabinet ( 2022 )

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0789-MR
MARK CRANMER APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 20-CI-00891
JUSTICE AND PUBLIC SAFETY CABINET APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Mark Cranmer, pro se, appeals from an order of the
Franklin Circuit Court dismissing his petition for a reconsideration of his parole
eligibility. Appellant argues that the Kentucky Parole Board violated statutory law
and the Kentucky Constitution when it denied his parole application. We find no
error and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant is currently an inmate at the Northpoint Training Center in
Burgin, Kentucky. He is currently serving a ten-year sentence for various offenses.
On September 1, 2020, Appellant went before the Kentucky Parole Board. The
Board denied his application for parole and indicated he could seek parole again in
twenty-four months. The Board indicated that it denied his parole for the
following reasons: (1) seriousness of the crime; (2) prior felony convictions; (3)
drugs or alcohol involvement; (4) assaultive behavior; (5) history of violating
conditions of probation or parole; and (6) prior misdemeanor convictions.
Appellant then filed for reconsideration of his parole. He claimed that
the Board made an error by indicating he had a history of “assaultive behavior.”
He argued that he was a nonviolent offender and had never been convicted of a
violent offense. Appellant’s reconsideration was denied. A Board member stated
the following in denying the reconsideration: “Mr. Cranmer contends the board
erred in citing ‘History of Assaultive Behavior’ on his Parole Denied Order, thus
requests reconsideration due to ‘procedural error.’ Mr. Cranmer was convicted of
Sexual Abuse in 2001 which qualifies as assaultive behavior. No reconsideration.
Decision Stands.”1
1
We note that Appellant pleaded guilty to second-degree sexual abuse in 2003, not 2001.
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Appellant then sought judicial review of this decision. Appellant
argued that the Board violated Kentucky Revised Statutes (KRS) 439.331 and KRS
439.335. He also argued that by ignoring these two statutes, the Board violated the
Kentucky Constitution. The trial court found no error, dismissed his petition, and
this appeal followed.
ANALYSIS
“The parole-release decision . . . depends on an amalgam of elements,
some of which are factual but many of which are purely subjective appraisals by
the Board members based upon their experience with the difficult and sensitive
task of evaluating the advisability of parole release.” Greenholtz v. Inmates of
Nebraska Penal and Correctional Complex, 442 U.S. 1, 9-10, 99 S. Ct. 2100,
2105, 60 L. Ed. 2d 668 (1979).
Belcher v. Kentucky Parole Board, 917 S.W.2d 584 (Ky.
App. 1996), determined that all that was required in
the parole review process when parole is denied is that
the prisoner have the opportunity to be heard and that he
be advised in general terms of the reason for the decision
of the Board. The judicial standard of review of
decisions of the Parole Board is limited to an
examination of compliance with the terms of KRS
439.250 to 439.560.
Stewart v. Commonwealth, 153 S.W.3d 789, 791 (Ky. 2005).
With the above standard of review in mind, we will now proceed to
Appellant’s argument on appeal. Like he did at the trial court, Appellant argues
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that the Board did not follow KRS 439.331 and KRS 439.335; therefore, he should
get a new parole hearing. KRS 439.331 states:
The department shall:
(1) Administer a validated risk and needs assessment to
assess the criminal risk factors of all inmates who are
eligible for parole, or a reassessment of a previously
administered risk and needs assessment, before the
case is considered by the board;
(2) Provide the results of the most recent risk and needs
assessment to the board before an inmate appears
before the board; and
(3) Incorporate information from an inmate’s criminal
risk and needs assessment into the development of his
or her case plan.
KRS 439.335 states in relevant part that “[i]n considering the granting of parole
and the terms of parole, the parole board shall use the results from an inmate’s
validated risk and needs assessment and any other scientific means for personality
analysis that may hereafter be developed.”
The trial court held that KRS 439.331 related to the Kentucky
Department of Corrections and not the Board. We agree. The statute specifically
relates to “the department.” In any event, there is no allegation that the Board did
not have a validated risk assessment on Appellant.
As for KRS 439.335, Appellant argues that the Board relied solely on
a 2003 misdemeanor for denying his parole; therefore, the Board violated KRS
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439.335 by not utilizing the risk assessment when determining parole eligibility.
Appellant also argues that he has never been convicted of a violent offense as
defined in KRS 439.3401; therefore, the claim that he has “assaultive behavior”
was in error. We find no error here.
KRS 439.3401 lists a number of violent offenses that limit parole
eligibility under certain circumstances. Appellant is correct that second-degree
sexual abuse is not among that list; however, the Board’s stating that Appellant has
a history of assaultive behavior does not mean the Board was indicating he was a
violent offender under KRS 439.3401. At the time of his conviction, second-
degree sexual abuse was defined as:
(1) A person is guilty of sexual abuse in the second
degree when:
(a) He subjects another person to sexual contact who is
incapable of consent because he is mentally retarded;
(b) He subjects another person who is less than fourteen
(14) years old to sexual contact;
(c) Being an employee, contractor, vendor, or volunteer
of the Department of Corrections, or a detention
facility as defined in KRS 520.010, or of an entity
under contract with either the department or a
detention facility for the custody, supervision,
evaluation, or treatment of offenders, he subjects an
offender who is incarcerated, supervised, evaluated, or
treated by the Department of Corrections, the
detention facility, or the contracting entity, to sexual
contact. In any prosecution under this paragraph, the
defendant may prove in exculpation that, at the time
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he engaged in the conduct constituting the offense, he
and the offender were married to each other; or
(d) Being twenty-one (21) years old or more, he subjects
another person to sexual contact who is less than
eighteen (18) years old and for whom he provides a
foster family home as defined in KRS 600.020.
(2) Sexual abuse in the second degree is a Class A
misdemeanor.
KRS 510.120. It is unclear from the record before us which subsection Appellant
was convicted under; however, any subsection could be deemed as “assaultive
behavior” by the parole board.
In addition, the Board did not violate KRS 439.335 by relying solely
on the sexual abuse conviction when denying Appellant’s parole. The Board listed
six factors it considered when denying his parole. Clearly the Board considered
the risk assessment. The only reason the reconsideration of parole order focused
on the “assaultive behavior” factor was because that was the only factor Appellant
sought to be reconsidered. It is clear that the Board examined the risk assessment
in this case.
Furthermore, we note that KRS 439.330(1) states that the Board shall
“(a) [s]tudy the case histories of persons eligible for parole, and deliberate on that
record [and] (b) [c]onduct reviews and hearings on the desirability of granting
parole[.]” The Board does not simply rely on the risk assessment in making its
determination, but may consider other relevant evidence.
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CONCLUSION
Based on the foregoing, we affirm the trial court’s judgment in this
case. The Board followed the applicable statutory requirements and we find no
error. There was no violation of KRS 439.331, KRS 439.335, or the Kentucky
Constitution.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Mark Cranmer, pro se
Burgin, Kentucky
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