Jason Bailey v. Cookie Crews ( 2023 )

RENDERED: MARCH 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0503-MR
JASON BAILEY APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 21-CI-00777
COOKIE CREWS APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
JONES, JUDGE: Jason Bailey, pro se, appeals from an order of the Franklin
Circuit Court entered on March 23, 2022, dismissing his petition for a declaration
of rights. Having carefully reviewed the record in conjunction with all applicable
legal authority, we affirm.
I. BACKGROUND
Bailey is currently an inmate serving a twenty-three-year sentence in
the custody of the Kentucky Department of Corrections (DOC). Bailey was
convicted of multiple charges including first-degree burglary in Daviess County.
Upon entering DOC custody, Bailey was classified at twenty percent parole
eligibility and later paroled on September 1, 2015. He was subsequently
transferred to Community Transition Services Russell (CTS-Russell) where he
participated in a substance abuse treatment program for one hundred eighty days
before he was released to the supervision of the Office of Probation and Parole.
Sometime after his exit from CTS-Russell, DOC determined Bailey’s
release on parole was in error, as he was required to have been classified as a
violent offender in connection with his first-degree burglary conviction, thereby
requiring him to serve a minimum of eighty-five percent of his sentence before he
was eligible for parole. He was reincarcerated after forty-three days under
Probation and Parole supervision, bringing his total number of days erroneously
out on parole to two hundred twenty-three days.
Bailey filed administrative challenges with DOC after this time was
not factored into the calculation of his parole eligibility date under the eighty-five
percent threshold. After unsuccessful attempts at obtaining the relief sought
through administrative procedures, he filed a petition for a declaration of rights in
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Franklin Circuit Court. Counsel for DOC filed a motion to dismiss on the grounds
that insufficient proof was attached to the petition demonstrating that Bailey
exhausted his administrative remedies as required by KRS1 454.415 and that DOC
had sole jurisdiction regarding questions of parole eligibility and release. The
circuit court ruled that the petition contained sufficient proof that Bailey exhausted
his administrative remedies but ultimately dismissed the action; the court agreed
with DOC’s argument that it lacked authority to involve itself in determinations of
awarding custody credit after sentencing. Bailey filed this appeal, naming DOC
Commissioner Cookie Crews as the appellee.
II. STANDARD OF REVIEW
“A petition should not be dismissed for failure to state a claim upon
which relief can be granted unless it appears the pleading party would not be
entitled to relief under any set of facts which could be proved[.]” Gray v.
Department of Corrections, 606 S.W.3d 645, 651 (Ky. App. 2020) (internal
quotation marks and citation omitted). “[T]he pleadings should be liberally
construed in the light most favorable to the plaintiff, all allegations being taken as
true.” Id. Dismissal is a question of law which is reviewed de novo. Id.1
Kentucky Revised Statutes.
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III. ANALYSIS
On appeal, Bailey argues that he is entitled to custody credit of one
hundred eighty days for the time spent at CTS-Russell in calculating his eighty-
five percent parole eligibility date with the remaining forty-three days to be applied
toward his release date. Before addressing the merits of the arguments concerning
this request, we first discuss the threshold issue of whether sufficient proof was
furnished to indicate that Bailey exhausted his administrative remedies.
In an action brought by an inmate, KRS 454.415(3) requires that the
inmate “attach to any complaint filed documents verifying that administrative
remedies have been exhausted.” A review of the appellate record demonstrates
that Bailey attached to his original petition a copy of a September 7, 2021, review
form filed pursuant to Kentucky Corrections Policies and Procedures (CPP) 17.4
which specifically requested that he receive a credit of one hundred eighty days
toward his parole eligibility date, with the remaining forty-three days to be applied
to “the end of [his] sentence.” (Record (R.) at 16-17.) Also attached to his petition
was the response received from Eastern Kentucky Correctional Complex’s
offender information supervisor as well as all necessary documentation related to
his appeal to the Offender Information Services Branch in Frankfort denying this
request. (R. at 18.)
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In its motion to dismiss before the circuit court, DOC argued that
Bailey previously raised this issue with DOC around May 2020, and by failing to
attach his CPP 17.4 review and appeal forms in relation to the prior administrative
action, he failed to furnish a complete record evidencing he exhausted his
administrative remedies. (R. at 2-4.) The circuit court ruled that, while he failed to
furnish proof with respect to the May 2020 administrative action, there was
sufficient proof supplied in relation to the September 2021 action to warrant
review. (R. at 40-41.)
The purpose of KRS 454.415(3) is not only to verify that the
administrative process was utilized, but also to show that the administrative agency
was first afforded an opportunity to address the substantive arguments raised in the
judicial proceeding. See Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky. App.
2006). Based on a thorough review of the record, we agree with the circuit court’s
ruling that Bailey supplied sufficient proof he exhausted all available
administrative remedies relating to the September 2021 action. The claims for
relief asserted in the September 2021 administrative action match those raised in
his petition thus evidencing that DOC had an opportunity to address them before
he filed for judicial relief. See Houston, 193 S.W.3d at 278 (emphasis added)
(“Although [appellant] did attach to his circuit court petition documents indicating
that the Warden had heard and denied his appeals, there is no documentation
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setting forth the grounds of three of his four appeals. It is impossible to determine
whether the arguments in [Appellant’s] petition for declaration of rights were
identical to those raised before the Warden.”). The inclusion of all administrative
responses with the petition further provides the ability to review the basis upon
which the administrative reviews were denied. Id. (“Additionally, the court was
not able to conduct a meaningful review of [appellant’s] claims because it received
no evidence as to the basis on which the Warden had denied the appeals.”).
Turning to the merits of this case, the circuit court’s underlying ruling
and DOC’s argument on appeal rely on Bowling v. White, 480 S.W.3d 911 (Ky.
2015), to assert that the executive branch, through DOC, has exclusive jurisdiction
over issues concerning the award of credit after entry of sentence thereby depriving
the judiciary of jurisdiction to grant relief. Specifically, the circuit court’s order
and DOC’s motion to dismiss quote the language in Bowling which states:
The judiciary had the exclusive power over the front end
of the sentence, that is, the power to render the sentence
and to award custody credit against it. (The executive
branch was bound by those determinations in carrying
out the sentence, as they were incorporated into a binding
judgment.) But the executive branch had exclusive
power over the back end of a sentence, that is, the power
to award good-time credit, to parole, to conditionally
discharge a convicted person, or to otherwise determine
when the sentence had been served out or the person was
otherwise entitled to release.
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480 S.W.3d at 916. This is an overly broad interpretation of the language in
Bowling which requires contextualization.
In Bowling, the issue on appeal concerned DOC’s authority under
KRS 532.120(3), after it was amended in 2011, to grant presentencing custody
credits to an inmate after a circuit court declined to do so in a sentencing order
entered in 1996. Before its amendment in 2011, KRS 532.120(3) vested sole
authority to grant presentencing custody credits with the sentencing court while the
statute’s 2011 revision granted authority to DOC “in cases involving a felony
sentence.”
At the time of the Bowling decision, there was confusion due to a
perceived conflict of the case law in Winstead v. Commonwealth, 327 S.W.3d 479(Ky. 2010), and Bard v. Commonwealth, 359 S.W.3d 1 (Ky. 2012), regarding
whether DOC could retroactively award the omitted presentencing custody credits
after the 2011 amendment when the sentencing order was governed under the
previous version of the statute. The Kentucky Supreme Court, in the language
quoted above, only intended to explain the division of authority between the
judiciary and DOC in awarding credits in a presentencing and post-sentencing
context as it existed under the pre-2011 amendment of the law.
The Kentucky Supreme Court never expressly or implicitly intended
to preclude judicial review over the exercise of DOC’s statutory authority to award
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sentencing credits under KRS 532.120 or other applicable statutes. To
demonstrate, we point to the Court’s holding in Caraway v. Commonwealth, 459
S.W.3d 849, 855 (Ky. 2015):
This change to the statutory language divested the trial
court of its prior duty and authority to ensure proper
application of the presentencing custody credit in felony
cases and, instead, placed it solely under the purview of
the Department of Corrections. The sentencing court is
empowered to award custody credit in felony cases only
when “presentence report indicates that a defendant has
accumulated sufficient sentencing credits . . . to allow for
an immediate discharge from confinement upon
pronouncement of sentence.” KRS 532.120(8).
Otherwise, the role of the trial court under the statute as
amended is essentially appellate in nature. See KRS
532.120(9) (“An inmate may challenge a failure of the
Department of Corrections to award a sentencing credit
under this section or the amount of credit awarded by
motion made in the sentencing court no later than thirty
(30) days after the inmate has exhausted his or her
administrative remedies.”). But the defendant must first
pursue his administrative remedies with Corrections
before this matter may be addressed by a court. Id.(Emphasis added.) See also Woods v. Commonwealth, 599 S.W.3d 894, 897 (Ky.
App. 2020) (citing KRS 532.120(9)) (“The trial court’s seeming belief that an
inmate can never challenge the Department of Corrections’ credit calculations is
thus erroneous.”).
Ultimately, this appeal does not concern the award of presentencing
custody credit under KRS 532.120(3) because the credits at issue are alleged to
have accrued during post-sentencing incarceration, and consequently this statute is
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inapplicable to the underlying facts. Accordingly, we look to KRS 454.415, which
states:
No action shall be brought by or on behalf of an inmate,
with respect to: (a) An inmate disciplinary proceeding;
(b) Challenges to a sentence calculation; (c) Challenges
to custody credit; or (d) A conditions-of-confinement
issue; until administrative remedies as set forth in the
policies and procedures of the Department of
Corrections, county jail, or other local or regional
correctional facility are exhausted.
A plain reading of the statute clearly provides that judicial challenges
are available concerning sentencing calculation and custody credit disputes with
DOC provided administrative remedies are first exhausted. See Lee v. Kentucky
Department of Corrections, 610 S.W.3d 254, 262 (Ky. 2020) (citation omitted)
(“Under the plain meaning rule, when the language of a statute is clear and
unambiguous, we need not look beyond it for further indications of legislative
intent.”). Indeed, since the holding in Bowling there have been appellate decisions
rendered on the merits concerning disputes over sentencing credits and parole
eligibility. See Kentucky Department of Corrections v. Dixon, 572 S.W.3d 46 (Ky.
2019) (holding that inmate’s consecutive sentences for both violent and non-
violent offenses were aggregated and could not be separated into discrete parts for
purposes of receiving work-credit); Goben v. Keeney, 626 S.W.3d 692, 694 (Ky.
App. 2021) (determining that an inmate was eligible for parole after serving ten
years of a first-degree persistent felony offender enhanced life sentence).
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Nonetheless, while we differ from the rationale offered by the circuit court, we
nevertheless affirm its decision on separate grounds. See Kentucky Farm Bureau
Mutual Insurance Company v. Gray, 814 S.W.2d 928, 930 (Ky. App. 1991)
(citation omitted) (“[A]n appellate court, may affirm the trial court for any reason
sustainable by the record.”).
While there is a lack of both statutory authority and controlling case
law specifically addressing the unique factual scenario and legal implications
presented in this appeal, a review of the Kentucky Revised Statutes is dispositive
as it concerns any credit which would lower Bailey’s parole eligibility date. Bailey
admits he was paroled, albeit inadvertently. If we accept that his erroneous time
on parole was not spent “in custody,” an award of custody credit by the DOC
would have violated sentencing statutes. It is not in dispute that Bailey is classified
as a violent offender and, per KRS 511.020(2), first-degree burglary is a Class B
felony. KRS 439.3401(3)(a) states a violent offender convicted of a “Class B
felony shall not be released on probation or parole until he has served at least
eighty-five percent (85%) of the sentence imposed.” It is plainly stated within
KRS 439.3401(4) that, “[i]n no event shall a violent offender be given credit on his
or her sentence if the credit reduces the term of imprisonment to less than [85%] of
the sentence.” Thus, service of Bailey’s sentence cannot be reduced below eighty-
five percent even when factoring in any credits he may have otherwise been
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entitled. As a result of the statute’s strict requirement, DOC was not afforded any
discretion to apply credits for purposes of lowering Bailey’s parole eligibility
below the eighty-five percent threshold, and it was correct in denying his request.
Bailey’s arguments to the contrary are without merit. Despite having
failed to assert it before the circuit court in his original petition, Bailey argues
constitutional grounds for support. These arguments are unpreserved for our
review. Additionally, he articulates no specific or detailed arguments in his brief
aside from a conclusory statement of unconstitutionality located within one
subheading of his argument section. “[A] terse, conclusory assertion wholly
unaccompanied by meaningfully developed argument or citation to authority is
insufficient to merit appellate relief.” Schell v. Young, 640 S.W.3d 24, 32 (Ky.
App. 2021). Furthermore, “Kentucky courts have repeatedly held that there is no
constitutional right to parole, but rather parole is a matter of legislative grace or
executive clemency. Parole is simply a privilege and the denial of such has no
constitutional implications.” Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky.
1999) (citations omitted).
Bailey argues that his time at CTS-Russell constitutes “custody” as
defined under KRS 520.010(2), thus evidencing entitlement to credit, but that
statute is inapplicable in this context. KRS 520.010(2) defines “custody” as it
applies under KRS Chapter 520 of the Kentucky Penal Code which contains
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statutes criminalizing escape and other offenses relating to custody. It is not
applicable for purposes of calculating custody credits or parole eligibility. Even if
the statute did apply, it explicitly states that “[c]ustody . . . does not include
supervision of probation or parole or constraint incidental to release on bail[.]”
KRS 520.010(2) (emphasis added).
Bailey also cites KRS 532.120(6) to contend that his time at CTS-
Russell constitutes time in a substance abuse treatment program which should
apply toward earlier parole eligibility. Again, reliance on the subsection of this
statute is misplaced because it only applies to presentencing custody credits
discussed in KRS 532.120(3)-(4) which, for reasons already discussed, are not at
issue in this appeal. The remaining authority cited by Bailey, KRS 439.344, would
not be applicable in this instance because subsection six (6) of this statute
explicitly disqualifies eligibility for any credit due to his violent offender status.
In conclusion, as it concerns a credit for any time toward his release
date, the above discussed authorities cited by Bailey would lend no support for the
relief requested for the reasons already stated. Considering the clear requirements
of KRS 439.3401(4) and with Bailey having failed to plead an applicable legal
basis to advance support for his request for relief, the circuit court’s dismissal of
the petition was not in error.
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IV. CONCLUSION
For the foregoing reasons, we affirm the Franklin Circuit Court’s
order dismissing Bailey’s petition.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jason Bailey, pro se Robert Chaney
West Liberty, Kentucky Frankfort, Kentucky
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