James Mark Dunn v. Commonwealth of Kentucky ( 2022 )

RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1430-MR
JAMES MARK DUNN APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 20-CI-00667
COMMONWEALTH OF KENTUCKY
AND KENTUCKY PAROLE BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.
MCNEILL, JUDGE: This appeal asks whether it is unconstitutional for the
Kentucky Parole Board (the Board) to give a “serve-out” to an inmate serving a
sentence of life imprisonment. The Franklin Circuit Court concluded the Board
could issue such serve-outs. We agree.
The core facts germane to the narrow issues presented in this appeal
are simple and seemingly uncontested. Appellant James Mark Dunn was
convicted in 1996 of murder and first-degree robbery, for which he was sentenced
to life without the possibility of parole for twenty-five years for the murder and
twenty years’ imprisonment for the robbery. Roughly twenty-five years later, the
Board reviewed Dunn’s status, denied him parole, and instead issued him a serve-
out. A serve-out is defined in the Board’s administrative regulations as “a decision
of the board that an inmate shall serve until the completion of his sentence.” 501
Kentucky Administrative Regulations (KAR) 1:030 §1(10). In practical terms, the
serve-out meant that Dunn would spend the remainder of his life in prison without
any subsequent review by the Board.
Unsurprisingly dissatisfied, Dunn unsuccessfully sought
reconsideration by the Board. Dunn then filed a petition for declaration of rights in
the Franklin Circuit Court against the Board and the Commonwealth of Kentucky,
arguing the serve-out violates the separation of powers doctrine and is an ex post
facto constitutional violation. The circuit court granted the Commonwealth and
Board’s motion to dismiss. Dunn then filed this appeal.
Dunn again mainly raises those two constitutional arguments. First,
he contends the serve-out decision “constituted an unconstitutional ex post facto
law, inasmuch as it effectively changed the sentence on his original conviction for
murder from ‘Life without the benefit of parole for twenty-five (25) years’ to
‘Life without the possibility of parole.’” Appellant’s brief, p. 13. Second, Dunn
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contends the serve-out mandate violates the separation of powers provisions of our
Kentucky Constitution because “a body within the Executive Department cannot
change the sentence of a confined person that received that sentence from a [sic]
Judicial Department.” Id. at 16. Neither argument has merit.1
Our Supreme Court has set forth the following standards for judicial
resolution of motions to dismiss:
A motion to dismiss for failure to state a claim upon
which relief may be granted admits as true the material
facts of the complaint. So a court should not grant such a
motion unless it appears the pleading party would not be
entitled to relief under any set of facts which could be
proved . . . . Accordingly, the pleadings should be
liberally construed in the light most favorable to the
plaintiff, all allegations being taken as true. This
exacting standard of review eliminates any need by the
trial court to make findings of fact; 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? Since a
motion to dismiss for failure to state a claim upon which
relief may be granted is a pure question of law, a
reviewing court owes no deference to a trial court’s
determination; instead, an appellate court reviews the
issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks and
footnotes omitted).
1
We have considered all of Dunn’s scattershot arguments. However, in the interests of judicial
economy, we will not belabor this Opinion by discussing any arguments which we deem to be
redundant, irrelevant, or otherwise without merit.
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We begin with Dunn’s ex post facto argument. “An ex post facto law
. . . makes more onerous the punishment for crimes committed before its
enactment.” Garland v. Commonwealth, 997 S.W.2d 487, 489 (Ky. App. 1999)
(internal quotation marks and citations omitted). Both our Kentucky Constitution
(§19) and the United States Constitution (art. I, §9, cl. 3 and art. I, §10, cl. 1)
prohibit ex post facto laws. Here, we are asked to determine that a ruling of the
Board, not a law passed by the legislature, is an improper ex post facto decision.
The Latin term ex post facto means “[d]one or made after the fact;
having retroactive force or effect.” BLACK’S LAW DICTIONARY (11th ed. 2019).
And retroactivity means “[t]he quality, state, or condition of having relation or
reference to, or effect in, a prior time; specif., (of a statute, regulation, ruling, etc.)
the quality of becoming effective at some time before the enactment, promulgation,
imposition, or the like, and of having application to acts that occurred earlier.”
BLACK’S LAW DICTIONARY (11th ed. 2019).
So, the gist of something being ex post facto is that it is an act, such as
a new law, which reaches backwards in time to impact something which already
occurred. The most classic example of an ex post facto violation is enacting a new
law which makes illegal already-performed conduct which was not illegal at the
time it was performed.
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So, what did the Board do to reach back in time and change Dunn’s
sentence? Nothing.
In the law, the “appropriate inquiry” to determine whether an ex post
facto problem exists is whether the change “results in increased punishment . . . .”
Martin v. Chandler, 122 S.W.3d 540, 547 (Ky. 2003). Dunn’s punishment was not
increased. Dunn was sentenced to life imprisonment without the benefit of
(meaning the possibility of) parole for twenty-five years. He raises no argument
that the sentence was illegal or otherwise unauthorized. Moreover, the Board
dutifully considered whether to grant him parole after he had served roughly
twenty-five years. That was all that was required. His sentence was not changed.
First, parole is always a matter of grace, not a matter of right or
entitlement. Garland, 997 S.W.2d at 490 (“As we have stated previously, the
appellant does not have a right to parole, and the Parole Board can never be
required to release the appellant before the completion of his maximum sentence.”)
(citations omitted). Thus, Kentucky Revised Statutes (KRS) 532.030(1), which
authorizes a person convicted of a capital offense to be sentenced to
“imprisonment for life without benefit of probation or parole until he has served a
minimum of twenty-five (25) years of his sentence,” is potentially misleading
because the “benefit” is only consideration of parole by the Board after twenty-five
years have passed; the usage of the term “benefit” in no way, shape, or manner
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guarantees that parole will ever be granted. Second, Dunn cites to no statute,
regulation, or precedent which required the Board to review his parole status a
second or subsequent time. To the contrary, 501 KAR 1:030 §3(2)(b) explicitly
permits, without limitations, the Board to “order a serve-out on a sentence.”
And we have held that even applying a 2003 version of that
administrative regulation (which expressly permitted the Board to issue a serve-out
mandate) to an inmate who was sentenced in 1983 (when the regulation did not
expressly permit the Board to issue a serve-out) was not an ex post facto violation
because the serve-out was not an “enhancement of punishment” or an “elongation”
of the inmate’s sentence so “the retroactive application of this revised regulation
does not create an unconstitutional ex post facto violation.” Simmons v.
Commonwealth, 232 S.W.3d 531, 534 (Ky. App. 2007). Instead, we held that the
inmate’s sentence “remained at a fixed term” so “[t]he imposition of a serve-out is
not punishment. It is merely a ruling by the Parole Board which is within its sound
discretion” because it did not make the inmate’s sentence “more onerous for
crimes committed before the revised regulation was issued.” Id. at 534-35.
If making a prisoner subject to language in an administrative
regulation which the regulation did not contain when the prisoner was sentenced is
not an ex post facto violation, then it is beyond serious dispute that it is not an ex
post facto violation to subject a prisoner to an administrative regulation which was
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in full effect when the prisoner was sentenced – which is precisely what occurred
here as it is uncontested that the Board had the express authority under 501 KAR
1:030 to order serve-outs at the time Dunn was sentenced. There was no reaching
back in time by the Board.
Also, the Board did not lengthen Dunn’s sentence. Both before and
after the issuance of the serve-out, Dunn was sentenced to life imprisonment
without the possibility of parole for twenty-five years. The Board reviewed
Dunn’s parole status after twenty-five years. That is all it was required to do. We
understand that, as a practical matter, the serve-out dashed Dunn’s hope of being
granted parole.2 However, his court-issued sentence – which contains the phrase
“imprisonment for . . . life” – has never changed.
Our conclusion is not altered by the concurring opinion by former
Justice Cunningham stressed by Dunn. In Bartley v. Wright, No. 2012-SC-
000643-MR, 2013 WL 1188060 (Ky. Mar. 21, 2013), the Board gave a serve-out
2
Of course, an inmate serving a life sentence who is given a serve-out can still be released via
executive clemency. Also, our Supreme Court has noted (albeit in an unpublished case which
we cite only to illustrate the principle) that an inmate sentenced to life imprisonment and given a
serve-out can nonetheless receive medical parole under KRS 439.3405 and the Board’s Policies
and Procedures may permit the Chair of the Board to request reconsideration of any case. See
Wyatt v. Commonwealth, No. 2018-SC-000223-MR, 2019 WL 2462785, at *4-5 (Ky. Jun. 13,
2019). Thus, though the odds of early release are remote, the Board’s issuance of a serve-out to
an inmate serving a life sentence does not inalterably and inevitably result in the inmate
remaining incarcerated until death.
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to Donald Bartley, an inmate sentenced to life imprisonment without the possibility
of parole for twenty-five years. Bartley filed a petition seeking to enforce an
alleged plea agreement which entitled him to parole. After admitting that the
“exact nature” of Bartley’s claims were “difficult to discern[,]” our Supreme Court
held that he was not entitled to relief. Id. at *1-2. Justice Cunningham issued a
short concurring opinion noting that eighty inmates “are serving life without parole
by serve-outs on life sentences imposed upon them by nine non-elective members
of the Parole Board . . . in spite of the fact that neither our courts nor our General
Assembly have deemed these men ineligible for parole.” Id. at *2. Though he did
not believe the question was squarely presented in that case, Justice Cunningham
stated that Kentucky’s Supreme Court has “yet to determine if the executive
branch, through the Parole Board, has the authority to impose life sentences
without parole upon persons that our legislature and courts have deemed eligible
for parole.” Id.
The Board surprisingly does not address Bartley in its brief.
Nonetheless, we conclude Bartley affords no relief to Dunn. First, Bartley is an
unpublished opinion and thus generally lacks binding precedential weight. See,
e.g., Kentucky Employers’ Mutual Insurance v. Ellington, 459 S.W.3d 876, 885
(Ky. 2015) (holding that an unpublished opinion “can have at most a persuasive
effect and is not binding”). Second, Justice Cunningham’s concurring opinion was
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not joined by a majority of the Court (indeed, it was joined by no other justices).
Third, respectfully, Justice Cunningham’s concurring opinion merely notes the
possible existence of an issue which our Supreme Court may eventually have to
address; the opinion does not conclusively conclude that the Board cannot give
serve-outs to inmates serving life sentences. In fact, we have concluded that the
Board did not improperly issue a serve-out to a prisoner serving a life sentence in
Simmons, 232 S.W.3d at 534-35,3 and Justice Cunningham cites to no authorities
which cast doubt upon our conclusion.
We also discern no merit in Dunn’s second main argument, that the
serve-out is a violation of the separation of powers doctrine. As we construe it,
Dunn argues that the Board (an executive branch entity) somehow overrode, or
changed, the sentence imposed by the judicial branch. We disagree.
First, we have already explained that the Board did not amend Dunn’s
sentence. He was sentenced to life imprisonment without the possibility of parole
3
Although not binding and sometimes factually distinguishable, we have issued at least five
additional unpublished opinions (which we cite only for illustrative purposes) denying relief to
inmates serving life sentences who received serve-outs from the Board. Cosby v. Kentucky
Parole Bd., No. 2004-CA-002240-MR, 2006 WL 574403 (Ky. App. Mar. 10, 2006) (rejecting ex
post facto and separation of powers claims); Reyes v. Coy, No. 2003-CA-002682-MR, 2004 WL
2914912 (Ky. App. Dec. 17, 2004) (rejecting ex post facto claim); Preston v. Coy, No. 2003-CA-
000459-MR, 2004 WL 1586844 (Ky. App. Jul. 16, 2004) (rejecting ex post facto claim);
Cavender v. Mudd, No. 2008-CA-001988-MR, 2009 WL 2835173 (Ky. App. Sep. 4, 2009)
(rejecting ex post facto and separation of powers claims); Henderson v. Kentucky State Parole
Bd., No. 2007-CA-001024-MR, 2008 WL 4182041 (Ky. App. Sep. 12, 2008) (rejecting ex post
facto claim).
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for twenty-five years by the judiciary. The Board did not amend that sentence; it
honored it by reviewing whether Dunn should receive parole after he had served
twenty-five years. The Board’s decision wholly fails to invade the judiciary’s
exclusive power to impose sentences upon persons convicted of criminal offenses.
Second, under longstanding Kentucky precedent, the determination of
whether an inmate should be paroled is a decision left wholly to the executive
branch. Commonwealth v. Cornelius, 606 S.W.2d 172, 174 (Ky. App. 1980) (“It
has been settled for many years that the decision as to whether a person serving a
sentence of imprisonment should be paroled is an executive function, not a judicial
one . . . .”). There is not a separation of powers violation when an executive
branch entity makes a decision which is exclusively within its discretionary
powers.
As former Chief Justice Palmore memorably wrote in a case involving
parole (albeit with some degree of hyperbole, given the existence of shock
probation and petitions for post-conviction relief):
the fundamental fact [is] that when a person has been
convicted of a crime and has begun to serve his sentence
the function and authority of the trial court is finished.
What then happens to the prisoner is entirely in the
bailiwick of the executive branch of government, and is
no business of the courts, including the trial court.
Peck v. Conder, 540 S.W.2d 10, 12 (Ky. 1976). In short, the Board’s discretionary
parole determinations, such as issuing a serve-out, plainly do not violate the
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separation of powers doctrine. Simmons, 232 S.W.3d at 535 (citations omitted)
(“It is well-recognized in Kentucky that the power to grant parole is purely an
executive function. Thus, as we have previously held, the Parole Board was within
the bounds of its discretionary powers in denying parole to Simmons’s [sic] and
ordering him to serve out the remainder of his sentence. We cannot say the Parole
Board exceeded its authority. Further, we cannot hold the Parole Board invaded
the functions reserved for the judicial or legislative branches of government.”).4
Finally, we also reject Dunn’s arguments that the serve-out violates
his liberty or due process interests. Dunn was given parole consideration by the
Board, which dutifully informed him of its rationale for denying parole. The
Board’s process and decision conform to established procedures and policies, so
Dunn’s due process rights were not violated. See, e.g., Belcher v. Kentucky Parole
Bd., 917 S.W.2d 584, 587-88 (Ky. App. 1996). Moreover, Kentucky prisoners do
not possess a “legitimate claim of entitlement” to parole and thus lack a legally
cognizable liberty interest therein. Id. at 587. Indeed, our Supreme Court has held
4
We also decline to find that the Board, as constituted when it issued a serve-out to Dunn,
improperly bound its future members by issuing a serve-out. The Board is expressly authorized
to give serve-outs by 501 KAR 1:030 §3(2)(b). Because Dunn has not shown that regulation to
be legally infirm, nor has the General Assembly enacted legislation to eliminate or regulate the
issuance of serve-outs to inmates serving life sentences, there was no legal barrier to the issuance
of the serve-out to Dunn. In other words, since an executive branch entity took a discretionary
action which it was expressly authorized to take, the judicial branch’s analysis must cease lest we
ourselves violate the separation of powers doctrine.
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that the denial of parole “has no constitutional implications.” Land v.
Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).
In summary, Dunn has shown no legally recognized defects in the
Board’s decision. Accordingly, Dunn failed to present a claim upon which judicial
relief may be granted, even under the stringent standards involved in addressing a
motion to dismiss. “[T]he decision to grant or deny parole is entirely discretionary
with the Board. Parole is a privilege and its denial has no constitutional
implication.” Stewart v. Commonwealth, 153 S.W.3d 789, 793 (Ky. 2005)
(citations omitted). We consequently affirm the Franklin Circuit Court’s dismissal
of Dunn’s petition.
For the foregoing reasons, the Franklin Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James Mark Dunn, pro se Kristin Wehking
Beattyville, Kentucky Frankfort, Kentucky
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