Branson v. McKune

3 P.3d 572, 27 Kan. App. 2d 301
CourtCourt of Appeals of Kansas
DecidedMarch 31, 2000
DocketNo. 83,262
StatusPublished
Cited by2 cases

This text of 3 P.3d 572 (Branson v. McKune) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branson v. McKune, 3 P.3d 572, 27 Kan. App. 2d 301 (kanctapp 2000).

Opinion

Pierron, J.:

Appellant Robin Branson appeals from an order dismissing his K.S.A. 1998 Supp. 60-1501 petition for habeas corpus relief following the Kansas Parole Board’s (Board) decision to pass him for a period of 10 years pursuant to K.S.A. 1998 Supp. 22-3717(j). Appellant was convicted of two counts of murder in 1984 and received a 15-year to life sentence. After serving 15 years, appellant became eligible for parole and was brought before the Board on December 1, 1998. The Board rendered the following action notice denying appellant parole;

“ ‘After considering all the statutory factors contained in KSA 22-3717, the decision of the KPB is as follows: Pass, to January, 2009. Pass reasons: Serious and violent nature and circumstances of the crime, objections regarding parole, disciplinary reports. Inmate has been sentenced for a class A or B felony or an off grid felony and die board makes a special finding that a subsequent parole hearing should be deffered [sic] for 10 years, because it is not reasonable to expect that parole would be granted at a hearing if held before dien, for die reasons indicated: Extended pass reasons: Two (2) cold blooded killings, strong public and official opposition to parole.’ ”

On January 11, 1999, appellant filed a K.S.A. 1998 Supp. 60-1501 petition for writ of habeas corpus alleging K.S.A. 1998 Supp. 22-3717, as amended subsequent to 1984 and as applied to him, violated the ex post facto prohibitions of the United States Con[302]*302stitution because the statute utilizes a more rigorous standard for determining parole eligibility.

The district court dismissed appellant’s petition, holding K.S.A. 1998 Supp. 22-3717 is a procedural statute, and it is not affected by ex post facto provisions of the United States Constitution.

Appellant first contends the application of K.S.A. 1998 Supp. 22-3717, as amended, violates the Ex Post Facto Clause of the United States Constitution by allowing the Board to pass consideration of appellant for 10 years. Appellant acknowledges this court has previously determined that K.S.A. 22-3717 is procedural and not subject to the prohibitions of the Ex Post Facto Clause in Bookless v. McKune, 22 Kan. App. 2d 829, Syl. ¶ 4, 926 P. 2d 661, rev. denied, 260 Kan. 991 (1996), and Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 812 P.2d 761 (1991). However, appellant urges reconsideration of this determination.

K.S.A. 1998 Supp. 22-3717(j) states:

“If parole is denied for an inmate sentenced for a class A or class B felony or an off-grid felony, the board shall hold another parole hearing for the inmate not later than three years after the denial unless the parole board finds that it is not reasonable to expect that parole would be granted at a hearing if held in the next 10 years or during die interim period of a deferral. In such case, die parole board may defer subsequent parole hearings for up to 10 years but any such deferral shall require the board to state the basis for its findings.”

In granting summary judgment, the district court relied primarily on California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995), to determine whether the statute violated the Ex Post Facto Clause. In Morales, defendant was convicted of murder on two occasions. Under the law in place when defendant committed the second murder, he would have been entitled to parole hearings on an annual basis. However, the law was amended and the parole board was authorized to defer subsequent hearings for up to 3 years if the prisoner had been convicted of more than one instance of taking a life and the board “ ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.’ ” 514 U.S. at 503 (quoting Cal. Penal Code § 3041.5(b)(2) [West 1982]). Morales argued this amendment con[303]*303stituted an Ex Post Facto law in violation of the Constitution. 514 U.S. at 504.

The United States Supreme Court held this statute did not increase the punishment for criminal acts by allowing for a longer period of time between parole hearings. 514 U.S. at 505. The Court stated: “The amendment creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause.” 514 U.S. at 509. The Court held the statute did not violate the clause because (1) it only applied to a small class of prisoners for whom the likelihood of parole was remote; (2) it did not affect the prisoner’s initial parole eligibility determination, and it only affected subsequent parole hearings; and (3) the board retained the authority to tailor the frequency of the hearings and could allow an expedited hearing if circumstances warranted. 514 U.S. at 510-11.

The district court in this case held that the Kansas statute was similar to the California statute in Morales, and the statute “does not have the purpose and effect of enhancing the range of available prison terms, but rather the statute merely alters the method to be followed in fixing a parole hearing.” Appellant concedes Morales is controlling and his circumstances do not fall under the first two factors considered by the court. However, appellant argues K.S.A. 22-3710 prohibits judicial review of the actions of the parole board except when in compliance with applicable statutes, and “K.S.A. 22-3717(j) allows the preclusion of a request for an expedited hearing by its very language if a finding is made that the inmate would not be granted parole if a hearing were held at any time during the next 10 years.”

Appellant argues this “safely valve” of an expedited hearing is missing under Kansas law. However, his argument is in error because he is misinterpreting the requirement of the third factor in Morales. K.S.A. 22-3710 sets the standards for judicial review of parole board actions, and it has nothing to do with the Kansas Parole Board allowing an expedited hearing if necessary. The third factor in Morales

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Related

Knapp v. Nelson
50 P.3d 1063 (Court of Appeals of Kansas, 2002)
Berry v. Scafe
16 F. App'x 948 (Tenth Circuit, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
3 P.3d 572, 27 Kan. App. 2d 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branson-v-mckune-kanctapp-2000.