Darrie Rushin v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 30, 2023
• Docket: 2022 CA 000178
• Status: Unknown

Opinion

RENDERED: MARCH 31, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0178-MR

DARRIE RUSHIN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANN BAILEY SMITH, JUDGE ACTION NO. 13-CR-000042

COMMONWEALTH OF KENTUCKY, KENTUCKY JUSTICE AND PUBLIC SAFETY CABINET, KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.

DIXON, JUDGE: Darrie Rushin appeals the Jefferson Circuit Court order, entered

January 4, 2022, dismissing his motion for a declaration of rights. After careful

review of the briefs, record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY

In 2014, Rushin was convicted of two KRS1 Chapter 510 sex

offenses, among other crimes, and was sentenced to seven years to serve. After

completing his sentence, Rushin was released on mandatory post-incarceration

supervision on December 19, 2018, but violated supervision and was

reincarcerated on January 2, 2020. In May 2021, Rushin sought administrative

review of his sentence calculation by the Department of Corrections (DOC). His

release date is presently set for December 26, 2023. In his administrative review,

Rushin argued he was being wrongfully denied eligibility for sentence credit that

would ultimately reduce the length of his present incarceration. DOC disagreed,

and Rushin’s subsequent administrative appeal was likewise denied.

On September 10, 2021, Rushin filed the underlying motion for

declaration of rights and injunctive relief, reiterating his claim of entitlement to

sentence credit.2 DOC responded arguing the court could not consider the merits

of Rushin’s claim under separation of powers considerations, and alternatively,

Rushin was incorrect. Agreeing with the former, the court denied relief, and this

appeal followed.

1 Kentucky Revised Statutes. 2 Ordinarily, this type of relief is sought via an original action in order to effectuate proper service on DOC, an indispensable party. See Mason v. Commonwealth, 331 S.W.3d 610, 629 (Ky. 2011). However, we proceed with our review as the issue has not been raised, and DOC has actively participated both in the lower court and in these proceedings.

-2- LEGAL ANALYSIS

On appeal, Rushin renews his argument that he is eligible for sentence

credit and asserts the court erred in concluding it was unable to consider the merits

of his claim.

In its order dismissing, the court found “the above case involves an

issue within the jurisdiction of [DOC] as a unit of the Executive Branch of

Government and the Court is thereby bound by the Separation of Powers Doctrine

of Section 283 of the Kentucky Constitution.” While not specified in the order on

appeal, the court’s decision is akin to a dismissal for failure to state a claim upon

which relief can be granted pursuant to CR4 12.02(f). Dismissal under this rule is

proper only if “it appears the pleading party would not be entitled to relief under

any set of facts which could be proved.” Gray v. Dep’t of Corr., 606 S.W.3d 645,

651 (Ky. App. 2020) (citations omitted). As a question of law, our review is de

novo. Id.

Arguing the court correctly determined judicial review was not

permissible, DOC asserts that by statute it alone – not the courts – is authorized to

determine the release dates of prisoners and, through its Division of Probation and

3 Provides that “[n]o person or collection of persons, being of [the legislative, executive, or judicial departments of the government of the Commonwealth of Kentucky], shall exercise any power properly belonging to either of the others[.]” 4 Kentucky Rules of Civil Procedure.

-3- Parole, to supervise persons subject to post-incarceration supervision. KRS

196.070(1)(d); KRS 532.043(4); KRS 196.026(4)(a); see also Winstead v.

Commonwealth, 327 S.W.3d 479, 483 (Ky. 2010). Additionally, DOC contends

that the Kentucky Supreme Court’s acknowledgment in Bowling v. White, 480

S.W.3d 911 (Ky. 2015), of the sole jurisdiction of DOC over matters pertaining to

an inmate’s confinement precludes judicial interference. We, however, disagree.

KRS 418.040 provides that when “an actual controversy exists, the

plaintiff may ask for a declaration of rights, either alone or with other relief; and

the court may make a binding declaration of rights[.]” It has long been recognized

that declaration of rights actions have “become the vehicle, whenever Habeas

Corpus proceedings are inappropriate, whereby inmates may seek review of their

disputes with [DOC].” Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App. 1997)

(citing Polsgrove v. Kentucky Bureau of Corr., 559 S.W.2d 736 (Ky. 1977);

Graham v. O’Dea, 876 S.W.2d 621 (Ky. App. 1994)). Additionally, since 2002,

the plain language of KRS 454.415(1) clearly contemplates that an inmate may

challenge sentence calculation and custody credits by a civil action in court so long

as they have previously exhausted their administrative remedies with DOC. The

role of the court in such actions is limited to reviewing DOC’s judgment, “with due

deference, to ensure that [it] comports with the legal restrictions applicable to it.”

-4- Smith, 939 S.W.2d at 355. DOC’s insistence that this historically and statutorily

sanctioned method of review was barred in Bowling is not persuasive.

Bowling dealt with the discrete issue of whether DOC was authorized

to correct a sentencing court’s erroneous denial of an inmate’s custody credits

given an amendment to KRS 532.120(3), which transferred the power to award this

credit from the purview of the sentencing court to DOC. In that context, the

Bowling Court outlined generally that the trial court has exclusive power to render

a sentence and the executive branch the exclusive “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.” 480 S.W.3d at 916. However, the Court neither explicitly nor

implicitly foreclosed proper judicial review of the decisions made by either branch.

Indeed, Bowling arose from a civil action, albeit a Habeas Corpus proceeding, and

our appellate courts have continued to review DOC’s sentencing determinations

since Bowling was rendered.5

Further, the Supreme Court of Kentucky rejected a similar separation

of powers argument somewhat recently in Harilson v. Shepherd, 585 S.W.3d 748,

5 See Kentucky Dep’t of Corr. v. Dixon, 572 S.W.3d 46 (Ky. 2019) (upholding DOC’s determination that the inmate was ineligible for sentencing credits on his consecutive sentences for both violent and non-violent offenses) and Goben v. Keeney, 626 S.W.3d 692 (Ky. App. 2021) (reversing DOC’s determination that an inmate was ineligible for parole).

-5- 758-59 (Ky. 2019). At issue therein was whether the court was empowered to

review the Legislative Research Commission’s denial of an open records request

pursuant to KRS 7.119(3). Id. at 750. Rejecting the claim this violated separation

of powers, the court stated:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule . . . . This is of the very essence of judicial duty.” Marbury v. Madison, 5 U.S. 137, 177-78, 1 Cranch 137, 2 L. Ed. 60 (1803). “It was long ago settled that the interpretation of statutes is a proper judicial function . . . .” Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815, 822 (1948). The writ action before us involves that fundamental judicial function, interpretation of a controlling statute. Interpretation of a statute detailing review of a legislative records request is in no way an encroachment on the legislative function, it is a quintessentially judicial function.

Id. at 758-59.

As Rushin’s claim also turns on the interpretation of statute, we

conceive no basis to distinguish the case at bar; accordingly, we agree the court

erred in determining it could not review DOC’s judgment. However, we may

nevertheless affirm the order on appeal if we conclude Rushin’s claim is without

merit. See Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky. 2011), abrogated on

other grounds by Nami Res. Co., L.L.C. v. Asher Land & Mineral, Ltd., 554

S.W.3d 323 (Ky. 2018). As a question of statutory interpretation, our review is de

-6- novo. Davis v. Davis, 563 S.W.3d 105, 108-09 (Ky. App. 2018) (citing

Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,

647 (Ky. 2007)).

The issue before us is whether DOC’s determination that KRS

532.060(3) requires Rushin to serve the entire remaining period of post-

incarceration supervision without reduction via time credit is erroneous as a matter

of law. Rushin argues that DOC’s interpretation is contrary to the plain language

since the statute affords DOC discretion, and alternatively, the statute is in direct

conflict with KRS 197.045 which – as the most recent and more specific statute –

controls. In support of his claims, Rushin asserts the Supreme Court of Kentucky

in McDaniel v. Commonwealth held that conditional discharge6 − the prior iteration

of post-incarceration supervision – along with the underlying sentence to a term of

years constitute a single sentence and, thus, since he benefitted from sentence

credit prior to his release on post-incarceration supervision, he remains eligible to

receive time credit to reduce his present incarceration. 495 S.W.3d 115 (Ky.

2016). Though a matter of first impression, we agree with DOC that a plain

reading of the applicable statutes refutes Rushin’s claim of entitlement.

KRS 532.060(1) establishes that the conviction of a felony carries an

indeterminate sentence for which the permissible range of years varies by the class

6 The terminology was changed pursuant to 2011 Ky. Acts ch. 2, § 91 (eff. Mar. 3, 2011).

-7- of felony at issue. “In addition to the penalties authorized by law, any person

convicted of, [a KRS Chapter 510 felony offense] shall be subject to a period of

post-incarceration supervision following release from . . . [i]ncarceration upon

expiration of sentence[.]” KRS 532.043(1)(a) (emphasis added); see also KRS

532.060(3). “[I]f a defendant violates the provisions of post-incarceration

supervision, the defendant may be reincarcerated for: (a) The remaining period of

his initial sentence, if any is remaining; and (b) The entire period of post-

incarceration supervision, or if the initial sentence has been served, for the

remaining period of post-incarceration supervision.” KRS 532.060(3) (emphasis

added). Finally, KRS 197.045 provides for mandatory and discretionary “credit on

[an inmate’s] sentence[;]” with the caveat that eligible sex offenders must complete

DOC’s treatment program to receive the benefit thereof. (Emphasis added.)

As an initial point, we reject Rushin’s contention that DOC is afforded

any discretion regarding the duration of reincarceration for post-incarceration

supervision. It is true that KRS 532.060(3) provides “the defendant may be

reincarcerated” and the term may ordinarily denote a permissive action. See KRS

446.010(26). However, the referenced discretion merely extends to whether DOC

elects to revoke a defendant’s post-incarceration supervision after finding that a

violation has occurred, and if so, whether to reinstate supervision or reincarcerate

-8- the individual. See KRS 439.440; 501 KAR7 1:080; KYPB8 30-02(C)(4). But if

reincarcerated, KRS 532.060(3)(a)-(b) provides conclusive instructions pertaining

to the duration of imprisonment. Consequently, Rushin’s claim fails.

Turning to Rushin’s second argument, we are likewise unpersuaded

that KRS 197.045 applies to his present incarceration. Contrary to Rushin’s

assertion that the statute’s grant of credit on a sentence encompasses both the term

of years under KRS 532.060(1)-(2) and the five-year period of post-incarceration

supervision set out in KRS 532.060(3), the relevant statutory provisions

consistently differentiate between the two punishments, and nothing indicates a

legislative intent to provide credit on the latter. Indeed, the legislature has

demonstrated the opposite intent by expressly requiring reincarceration for the

entire or remaining period of post-incarceration supervision and, in the same

statute, excluding post-incarceration supervision in its acknowledgment that the

actual service on the term-of-years sentence may be reduced. KRS 532.060(5).9

Rushin’s contention that McDaniel necessitates a different conclusion is

unavailing.

7 Kentucky Administrative Regulations. 8 Kentucky Parole Board Policies and Procedures. 9 “The actual time of release within the maximum established [for the indeterminate sentence] by subsection (1) . . . shall be determined under procedures established elsewhere by law.”

-9- In its facts, the McDaniel Court recounted that the appellants had

argued in circuit court that conditional discharge, as a second sentence, violated

double jeopardy. 495 S.W.3d at 119. Then, in a footnote, the Court stated that,

“although an addition to the term-of-years sentence[, conditional discharge] is not

a ‘second’ punishment imposed in the course of a ‘second’ jeopardy, as disallowed

by the Double Jeopardy Clause, but is merely a portion of a single sentence

imposed in the course of the original jeopardy.” Id. at 119 n.3. Plainly, the case is

not directly on point. Additionally, because the double jeopardy claim was

abandoned both on direct appeal and on discretionary review, the language relied

upon is merely dicta and not authoritative. See Cawood v. Hensley, 247 S.W.2d

27, 29 (Ky. 1952) (citations omitted). And, finally, though dicta may be

persuasive, we afford the Court’s statement no weight in this matter since a double

jeopardy analysis rests upon wholly separate concerns. Accordingly, Rushin’s

assertion of entitlement is without merit.

CONCLUSION

Therefore, and for the foregoing reasons, the judgment of the

Jefferson Circuit Court is affirmed.

ALL CONCUR.

-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Darrie Rushin, pro se Robert Chaney La Grange, Kentucky Frankfort, Kentucky

-11-