RENDERED: SEPTEMBER 18, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1463-MR
DONALD STARKS APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 22-CI-00778
KENTUCKY PAROLE BOARD APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, A. JONES, AND TAYLOR, JUDGES. CALDWELL, JUDGE: Appellant Donald Starks appeals from the Pike Circuit Court’s grant of summary judgment to the Kentucky Parole Board.1 Starks had
1 Prior to 2021, judicial review of decisions of the Kentucky Parole Board would find venue in Franklin Circuit Court, where the offices of the Board are located. However, in 2021, the General Assembly passed HB 3, and overrode a veto of the legislation. This new legislation was described by the Kentucky Supreme Court as follows:
Among other things, this new section provided that the venue for any civil suit challenging the constitutionality of a Kentucky
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sought the circuit court’s review of the Kentucky Parole Board’s revocation of his supervised release. We reverse the circuit court and remand this matter back to the circuit court.
FACTS
Starks entered a guilty plea to two counts of sexual abuse in the first degree in Campbell Circuit Court in 2016. He was sentenced, in accordance with the plea agreement, to seven years’ imprisonment.2 Starks was released from incarceration in November of 2020,3 and was placed on Sex Offender Post-Incarceration Supervision (SOPS) in accordance with the law.4 At some point following his release from confinement, Starks was
statute, executive order, administrative regulation, or order of any cabinet that includes a claim for declaratory or injunctive relief and is brought against a state official in his or her official capacity is in any county where a plaintiff in the suit resides. This marked a significant change, as prior to the passage of H.B. 3, suits of this type were typically required to be brought in Franklin Circuit Court.
Beshear v. Goodwood Brewing Company, LLC, 635 S.W.3d 788, 794 (Ky. 2021), reh’g denied (Dec. 16, 2021).
2 Starks appealed as a matter of right from his conviction and sentence which we affirmed. Starks v. Commonwealth, No. 2016-CA-001535-MR, 2018 WL 671325 (Ky. App. Feb. 2, 2018). 3 In pleadings before this Court and the circuit court, Starks indicates his date of release on SOPS was November 4, 2020. The Administrative Law Judge (ALJ) who presided over his revocation probable cause hearing found he was released on November 14, 2020.
4 (1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an [North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)], plea to a felony offense under KRS Chapter 510, 529.100 involving
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enrolled at WestCare, a facility run by a non-profit corporation with various locations throughout the Central and Eastern Kentucky regions.5 He was
commercial sexual activity, 530.020, 530.064(1)(a), 531.310, or 531.320 shall be subject to a period of postincarceration supervision following release from:
(a) Incarceration upon expiration of sentence; or (b) Completion of parole.
(2) The period of postincarceration supervision shall be five (5)
years.
(3) During the period of postincarceration supervision, the defendant shall:
(a) Be subject to all orders specified by the Department of Corrections; and
(b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
(4) Persons under postincarceration supervision pursuant to this section shall be subject to the supervision of the Division of Probation and Parole and under the authority of the Parole Board.
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant’s postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.
(6) The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.
KRS 532.043 (declared unconstitutional on ex post facto application in Roach v. Commonwealth, 553 S.W.3d 791 (Ky. 2018)).
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apparently discharged at some point and was living independently, it appears from the scant record before us.
In November of 2021, Starks made a request to his parole officer6 that he be allowed to return to WestCare for further treatment. This request was completely voluntary on Starks’ part and was not made as a stipulation of his continued supervision. Starks’ parole officer agreed to the request and Starks returned to WestCare.
In February of 2022, Starks was discharged from WestCare following an altercation. Starks alleges he became concerned due to lax COVID-19 protocols and the failure of the facility to ensure that patients were receiving necessary medications. Starks complained that he had not received a prescribed mood stabilizer for over a month. Starks also raised a concern that a fellow patient had not received blood pressure medications and was possibly at risk of suffering a stroke. Starks admitted that he cursed at the staff and threatened legal action over the treatment patients were receiving and was discharged.
5 According to the non-profit organization’s website: “In October 2004, WestCare incorporated as a nonprofit in the Commonwealth of Kentucky. WestCare provides substance abuse treatment services in eastern and central Kentucky.” 6 Even though SOPS is not “parole” in the traditional sense, the Department of Corrections supervises sex offenders using parole officers. “The Parole Board states that sex offender conditional discharge (now referred to as post-incarceration supervision) is treated as parole under the statute, so the parole revocation procedures apply here.” Jones v. Bailey, 576 S.W.3d 128, 139 (Ky. 2019).
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Starks’ parole officer charged him with violating the terms of supervision. Starks received written notice of the following alleged violations:
1. Failure to abide by rules of Halfway House Mr. Starks has been discharged from Westcare (sic) for violating house rules according to discharge summary. Mr.
Starks is displaying violent and threatening communication towards staff and other residents.
2. Failure to cooperate with Probation/Parole Officer Mr. Starks has failed to cooperate with Probation and Parole as he has been discharged from halfway house. Dismas Owensboro has denied his placement, and he has no where (sic) to reside at this time.
A probable cause hearing was held on March 1, 2022, in front of a hearing officer who found probable cause for Starks’ supervision to be revoked. The final hearing, again conducted before an administrative hearing officer, was held on March 15, 2022. The Parole Board issued its Final Decision on March 31, 2022, relying upon the findings of the hearing officer. The Board determined that Starks’ parole should be revoked, and he should serve the remainder of his SOPS within a Department of Corrections institution.
Starks, through counsel, filed a complaint seeking declaratory and injunctive relief and/or a writ of mandamus.7 Specifically, Starks demanded an order declaring
7 We note that Starks provided notice by serving the Attorney General, as required by KRS 452.005(3) when alleging constitutional violations.
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1) the Parole Board had discriminated against him when it revoked his parole because he was houseless; 2) the Parole Board action was arbitrary as he did not violate any condition of his supervision; 3) the Parole Board’s practice of allowing hearing officers to conduct final revocation hearings is constitutionally insufficient; 4) the Board failed to consider mitigating evidence when in its final written decision it cited none of the evidence which was provided by Starks at the final hearing; 5) the revocation was improper because the requirements of KRS 439.3106 requiring express findings were not met when it employed a checkbox on a preprinted form; 6) the Board violated KRS 439.3107 by acting arbitrarily when it did not address the parole officer’s failure to impose graduated sanctions and; 7) that it grant injunctive relief and/or a writ of mandamus directing the Parole Board to reinstate
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Starks’ SOPS and only attempt revocation again with a constitutionally sufficient revocation proceeding including express findings which satisfy KRS 439.3106.
The Parole Board moved to dismiss the Complaint and moved for summary judgment. In the motion, the Board alleged Starks failed to exhaust administrative remedies and his action should be dismissed. The Board argued Starks was not entitled to a writ of mandamus but acknowledged he would be entitled to seek a petition for a declaration of rights. The Board argued Starks was simply seeking the court’s review of the decision to revoke and it was not appropriate for a circuit court to decide whether revocation was appropriate.
The Board denied discriminating against Starks because he was houseless. It also denied any procedural due process violation, arguing the revocation hearing was proper, the Board was entitled to rely upon the hearing held before the hearing officer, and was not required to preside over the final hearing. Lastly, the Board answered that all requirements in KRS 439.3106 had been met and that the Board has the discretion whether to consider the graduated sanctions in KRS 439.3107.8
8 (1) The department shall, by January 1, 2012, adopt a system of graduated sanctions for violations of conditions of community supervision. Notwithstanding KRS Chapter 533, the system shall
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In his response to the motion for summary judgment, Starks argued that summary judgment was premature and inappropriate as there were genuine issues of material fact to be determined. Starks denied failing to exhaust administrative remedies, arguing that the filing of a motion to reconsider to the Board was unnecessary as a final decision had been reached by the agency, making the matter ripe for judicial review. Starks also argued he was seeking a declaratory judgment concerning the constitutionality of the Board’s procedures. But, if the circuit court found that the Board abused its authority, the proper remedy would be
set forth a menu of presumptive sanctions for the most common types of supervision violations, including but not limited to: failure to report; failure to pay fines, fees, and victim restitution; failure to participate in a required program or service; failure to complete community service; violation of a protective or no contact order;
and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual’s previous criminal record, the number and severity of any previous supervision violations, the supervised individual’s assessed risk level, and the extent to which graduated sanctions were imposed for previous violations. The system also shall define positive reinforcements that supervised individuals may receive for compliance with conditions of supervision.
(2) The department shall establish by administrative regulation an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.
(3) The department shall establish by administrative regulation an administrative process to review graduated sanctions contested by supervised individuals under KRS 439.3108.
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a writ of mandamus.9 Further, Starks argued he was not seeking a re-decision of the Board’s determination, but simply seeking judicial review. To the Board’s argument there was no equal protection violation, he maintained if the Board is treating houseless supervisees differently than it is treating housed supervisees, such could implicate equal protection.
Starks reiterated the Board was required to hold its own hearing and receive evidence, particularly given the language in KRS 439.440 requiring “[a]ny prisoner returned to state custody for violation of his or her release shall be heard by the board within sixty (60) days on the propriety of his or her rerelease.” He then repeated an allegation first made in his complaint. He alleged the Chair of the Parole Board declared, in public at a conference, the Board does not review the entirety of video recordings of hearings conducted by hearing officers before making a final determination.10 Starks continued his allegation concerning failure of the Board to comply with KRS 439.3106 by not providing express findings and
9 Starks cited Shepherd v. Wingo, 471 S.W.2d 718, 719 (Ky. 1971) (citing Board of Prison Comm’rs v. Crumbaugh, 161 Ky. 540, 170 S.W. 1187 (1914)), in support of his argument. “If the . . . board should in any case abuse its authority in rearresting a convict, the remedy is by a proceeding in the circuit court of the proper county to obtain a writ of mandamus requiring the board to proceed properly . . . .” 10 In the complaint, Starks alleged that Board Chair LaDeidra N. Jones stated during a presentation at the Department of Public Advocacy Annual Conference on June 14, 2022, that “members of the Kentucky Parole Board do not review the entire final revocation hearing recorded by the ALJ. She stated that they base their decision entirely on the written findings produced by the ALJ, which often do not contain all of the mitigation presented by the parolees.” Complaint, paragraph 33.
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by simply reiterating the language of the hearing officer’s factual findings. Finally, Starks reiterated his allegation graduated sanctions should have been considered by the parole officer before recommending revocation.
The Pike Circuit Court held a hearing via videoconference on October 21, 2022. The court heard the arguments of counsel and asked no questions. The court issued an Order on November 10, 2022. In pertinent part, the court found: “it appears that Plaintiff has been provided with such due process in the Parole Board’s consideration and subsequent revocation of his parole. Further, the Parole Board’s findings appear to be supported by substantial evidence. For these reasons, the Defendant Kentucky Parole Board’s Motion for Summary Judgment is hereby GRANTED.”
Starks appeals from the entry of summary judgment in favor of the Parole Board. Having reviewed the record, the briefs of the parties and the pertinent law, we reverse and remand.
STANDARD OF REVIEW
The review of the entry or denial of summary judgment by a court from an administrative action requires suitable deference be given to the agency due to its expertise in the subject matter. Nevertheless, if there are genuine issues of material fact which call into question the presumption of propriety of the agency’s action, summary judgment should not be entered. See Smith v. O’Dea,
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939 S.W.2d 353, 356 (Ky. App. 1997). Summary judgment is only proper “to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991) (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Id. at 480.
ANALYSIS
Our review, as indicated above, is limited to whether the Pike Circuit Court appropriately granted summary judgment to the Kentucky Parole Board. To do so, we must find there were no genuine issues of material fact in dispute and the Parole Board was therefore entitled to judgment as a matter of law. We cannot so find.
Starks makes several allegations of fact, which we must assume are correct employing the standard of review. Each of these allegations bring into question whether the Board was entitled to judgment as a matter of law.
First, Starks alleges that the parole officer testified at the revocation hearing, held before the hearing officer, the reason he referred Starks for revocation was because he was houseless. The Board denies Starks’ housing status
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impacted their decision. Instead, the Board argues the reason for revocation was because Starks violated terms of his release, which constituted a substantial risk to the community, and a finding he could not be managed in the community.
The written final decision of the Board indicates Starks was found to have violated the conditions of supervision, in part, for having “failed to cooperate with Probation/Parole Officer, he was discharged from Westcare (sic) before a secured home placement could be established. He also cannot attend Dismas Owensboro as the facility does not wish to have him back at their facility.”
The Board argues Starks’ houselessness was not the reason for his revocation, but the final determination of the Board belies that claim. We need not determine whether the Board action of revoking a supervisee for losing housing would withstand constitutional scrutiny. The fact the Board disputed before the circuit court Starks’ lack of shelter was a reason for his revocation when the final determination indicates it was at least part of the reason for revocation constitutes a sufficient dispute of material fact which should have resulted in denial of the motion for summary judgment.
The final determination of the Board also cited the fact Starks was discharged from WestCare for violation of “Cardinal Rule #6.”11 It appears Starks
11 There is no indication in any of the Board’s filings in the circuit court or in their brief in this Court what Cardinal Rule #6 is.
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was terminated from WestCare for violation of the program rules. Starks alleges he was terminated for raising concerns as to the facility following proper COVID- 19 protocols and the failure of the facility to provide necessary medications. Notably, Starks alleges that the medication with which he was not provided was a mood stabilizer. While the Board incorrectly forwards to this Court Starks has never disputed the allegation he violated the terms of his supervision, he clearly did before the circuit court, again creating a dispute of material fact.
Starks argues his placement at WestCare was voluntary and it was not a requirement of his supervision that he remain there. Further, he was not charged with any crime following his fractious interactions with WestCare staff. His parole officer apparently acknowledged that Starks was not alleged to have physically threatened any staff at the facility but rather threatened to forward his legal rights to proper medical treatment while enrolled at the facility.12 The Board responds that violating the conditions of his stay at WestCare, which it characterizes as a halfway house, and engaging in threatening behavior including the use of profanity to the staff at WestCare, amounted to a violation of his release. We find it is a dispute of a material fact whether being
12 There is no recording of either hearing in the record before us. Whether the circuit court had an opportunity to review the hearing recordings is not known, but nothing in the order granting summary judgment indicates that the circuit court reviewed the recordings to determine whether there were disputed facts before it.
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dismissed from WestCare was a violation of Starks’ supervision and, if so, whether he did indeed violate WestCare’s terms.
In addition to disputes concerning the particular facts of the case, the parties also disputed whether Starks was accorded proper due process. First, he alleges that there is a dispute of fact as to whether the Board considered evidence in mitigation of revocation. The final determination does not incorporate any of the hearing officer’s findings concerning the mitigation evidence Starks presented at the hearing.
The Board is required to consider evidence presented by the supervisee in mitigation of revocation.
[The final revocation] hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The [offender] must have [a timely]
opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.
Jones, 576 S.W.3d at 137–38 (citing Morrissey, infra, 408 U.S. at 488).
The final decision of the Board does not mention any of the evidence offered in mitigation cited by the hearing officer in the decision she issued concerning the final revocation hearing. The word “mitigation” is not present in the Board’s final decision at all. We therefore agree with Starks that summary
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judgment was not appropriate on this claim as we must view the evidence in the light most favorable to Starks. The lack of any evidence that the Board considered mitigation evidence creates a dispute of fact as to whether he was accorded due process.
Starks alleged he was not granted the required process when the Board did not itself hold the final hearing, instead allowing it to be conducted by a hearing officer. Citing the requirement in Jones v. Bailey that the Board must have “full awareness of all the evidence presented[,]” Starks argues as the Board did not conduct his hearing, it is a matter of disputed fact as to whether the Board reviewed all the evidence adduced at the final hearing. 576 S.W.3d at 144. Supporting that argument is his allegation the Chair of the Board told a conference of criminal defense attorneys the Board often does not review the entire video of the hearings conducted by hearing officers. Such is necessarily a disputed material fact.
The Board answers the use of hearing officers is expressly provided for in KRS 439.341. Starks disagrees and argues that the statute provides hearing officers may be used to conduct “probable cause revocation hearings” and does not expressly provide for the use of hearing officers to conduct the final hearing. The Board argues the last sentence of the statute, which provides that hearing officers “shall perform the aforementioned duties and any others assigned by the board[,]”
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is sufficient to provide statutory authority for the Board to rely upon final hearings conducted by hearing officers.
In Morrissey v. Brewer, the United States Supreme Court held that due process requires a preliminary hearing before an uninterested party who determines whether probable cause has been established to proceed with the revocation. 408 U.S. 471, 485, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d 484 (1972). Following the establishment of probable cause, a final revocation hearing wherein the parolee is entitled to:
(a) written notice of the claimed violations of parole; (b)
disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Id. at 489.
Thus, Morrissey did not require that the Board itself hold the final revocation hearing. The circuit court found Starks was afforded due process without specifically determining whether KRS 439.341 requires the Board itself to preside over the final revocation hearing. However, even putting that question to the side, Starks raises a genuine dispute about whether the Board engaged in a
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sufficient review of the hearing conducted by a hearing officer to pass muster. Starks alleged there is evidence available to question whether the Board has “full awareness of all the evidence presented” as required in Jones, 576 S.W.3d at 144.
There is currently a disagreement between panels of this Court concerning whether KRS 439.341 and Jones v. Bailey requires the Board, or at least some portion of its members, to preside over the final revocation hearing.13 It
13 The Kentucky Supreme Court is reviewing motions for discretionary review of the decisions of this Court in Hodge v. Commonwealth, No. 2021-CA-1512-MR and Shane v. Commonwealth, 2022-CA-0135-MR. The opinion in Ivy v. Commonwealth, No. 2022-CA-0369-MR, 2023 WL 2439676 (Ky. App. Mar. 10, 2023), became final when no motion for discretionary review was filed as Mr. Ivy’s sentence had expired.
In Hodge, a panel of this Court determined that the use of hearing officers to conduct final revocation hearings provided due process under Morrissey and Jones.
Neither Morrissey nor Jones require that this second, final hearing be conducted before the Board; only that it be conducted with proper notice and procedures.
Hodge was notified in writing of the alleged violations found after the first hearing was held. The notification included a recitation of the proof against him, which was the testimony of the parole officer and the employee of Recovery Works. Hodge was provided an opportunity to provide evidence and did so. He was also able to cross-examine the witnesses against him. The Administrative Law Judge was a neutral and detached hearing officer who provided written findings supporting his conclusion. This second hearing complied with the requirements of due process.
No. 2021-CA-1512-MR, 2023 WL 453138, at *3 (Ky. App. Jan. 27, 2023) (citations omitted).
The panel in Shane reached a different conclusion.
Shane first argues that Jones and KRS 439.440 mandate the Board conduct his final revocation hearing. We agree. In Jones, the Kentucky Supreme Court determined the Board’s prevailing final revocation hearing procedure did not meet minimal due process. Defendant had received a
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is not necessary for us to determine this issue, however, as we are reversing the circuit court on other grounds.
We find that even if the use of hearing officers is determined to meet both statutory and constitutional muster, in the present case there remains an issue
preliminary hearing before an ALJ where he was allowed to present witnesses and evidence, including mitigating testimony. The ALJ found probable cause that defendant had violated the conditions of his supervision and referred the matter to the Board. At the final hearing, defendant was not represented by counsel and was denied the opportunity to present witnesses or other evidence on the alleged violations. Based upon the record created before the ALJ, the Board revoked defendant’s supervision.
On discretionary review, the Supreme Court held the Board’s final revocation hearing procedure which consisted of merely reviewing the administrative record was constitutionally inadequate. Because “the Board is the body charged with determining the ultimate findings of fact[,]” Jones, 576 S.W.3d at 144, a simple review of the administrative record is a “wholly unsatisfactory basis for [a revocation] decision.” Id.
(quoting Mathews v. Eldridge, 424 U.S. 319, 343–44, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976)). The Court concluded that defendant “had a constitutional right to a hearing pursuant to procedures that enabled him to make his case to the Board, who would then have full awareness of all the evidence presented and would be able to decide whether there were any mitigating factors in his favor.” Id. (emphasis added).
Thus, Jones held it was constitutionally insufficient for the Board to base its revocation decision on a simple review of the administrative record.
We read Jones as requiring the Board to conduct the final revocation hearing so it may make an informed decision as to revocation, having heard all the evidence. “Due process requires that the Parole Board . . .
conduct the constitutionally-required final evidentiary hearing prior to revocation[.]” Jones, 576 S.W.3d at 133. The Board’s delegation of Shane’s final revocation hearing to an ALJ denied him due process.
No. 2022-CA-0135-MR, 2023 WL 4535569, at *2–3 (Ky. App. Jul. 14, 2023) (citations omitted).
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of fact as to whether the Board engaged in fact finding and a determination as to revocation sufficient to ensure Starks received due process. It may well be held to be sufficient that a hearing officer conducts the final revocation hearing which the Board will then review. However, we must feel certain that the Board engaged in a sufficient analysis of the record compiled by the hearing officer, and they have not relinquished too fully their role. We are troubled by the lack of adequate findings concerning whether Starks constituted a significant risk to the community and whether he could not be appropriately managed in the community.14 The form used by the Board requires only a checkbox be selected to choose boilerplate language which is summary and general in nature.15 We believe due process requires the Board engage in a more reaching analysis and it not simply to rubber stamp the conclusion of a hearing officer. There is particularly a concern when a supervisee has raised the question of whether the Board regularly even reviews the entire administrative record prepared
14 “If the penal reforms brought about by HB 463 are to mean anything, perfunctorily reciting the statutory language in KRS 439.3106 is not enough. There must be proof in the record established by a preponderance of the evidence that a defendant violated the terms of his release and the statutory criteria for revocation has (sic) been met.” Helms v Commonwealth, 465 S.W.3d 637, 645 (Ky. App. 2015). 15 The language on the form is “Having found by a preponderance of the evidence that the offender violated the conditions of supervision by committing the violations listed above and having determined per KRS 439.3106(1) that the offender’s failure to comply with the conditions of supervision constitutes a significant risk to prior victims or the community at large and the offender cannot be appropriately managed in the community.”
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for its review. It may be the Board engaged in a proper and sufficient analysis, but evidence must be taken by the circuit court to ensure such happened and reliance upon a checkmark on a pre-printed form is simply not sufficient to ensure due process was accorded Starks. The circuit court should not have entered summary judgment on this issue.16
16 See Fair v. Commonwealth, No. 2016-CA-001105-MR, 2017 WL 3642967, at *3 (Ky. App. Aug. 25, 2017) (citations omitted):
Here, despite the revocation order being preprinted, the statutory language contained in the form indicates that . . . the circuit court was aware of the criteria contained in KRS 439.3106.
[T]he record here, both video and written, indicates that the circuit court actually evaluated the evidence in light of the statutory factors and made the appropriate findings before revoking Fair’s probation.
As part of the hearing, the circuit court noted that Fair could not be managed in the community if he absconded. It also determined that Fair had previously been afforded the opportunity to participate in drug treatment, but voluntarily left without finishing treatment. Likewise, the circuit court considered that Fair’s prior offense, manufacturing methamphetamine, coupled with his decision to leave drug treatment caused it concern.
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In the same way, we are troubled by the apparent lack of consideration of “graduated sanctions.”17 Per KRS 439.250(6)(b),18 a person released from prison on supervision, like Starks, is on “community supervision.” Those on supervision are entitled to consideration of graduated sanctions by whichever body has the authority to terminate their community supervision and reincarcerate them.
Enacted in 2011 as part of the Public Safety and Offender Accountability Act, commonly referred to as HB 463, KRS 439.3106 provides:
Supervised individuals shall be subject to:
(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; or
17 Graduated sanctions are defined in KRS 446.010(21) as follows:
[A]ny of a wide range of accountability measures and programs for supervised individuals, including but not limited to electronic monitoring; drug and alcohol testing or monitoring; day or evening reporting centers; restitution centers; disallowance of future earned compliance credits; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews;
secure or unsecure residential treatment facilities or halfway houses; and short-term or intermittent incarceration[.]
Helms, 475 S.W.3d at 642. 18 “The placement of an individual under supervision after release from prison or jail, with conditions imposed by the board for a specified period[.]”
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(2) Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
Helms, 475 S.W.3d at 638–39.
KRS 439.3107 expressly instructed the Department of Corrections to adopt a system of graduated sanctions for persons on community supervision.
Logically, if a court cannot revoke supervised release solely on a zero-tolerance provision, probation and parole officers cannot find graduated sanctions are not available based on that same provision. It would be incongruous to say the Court may not consider such provisions but, based on that same provision, permit a probation and parole officer to reject graduated sanctions. Such an application would render KRS 439.3107 and 501 [Kentucky Administrative Regulations] KAR 6:250 “meaningless or ineffectual.”
Id. at 644–45 (citations omitted).
The Board argues it does not have to impose graduated sanctions and we agree it does not. However, it must employ its discretion in determining whether graduated sanctions are appropriate in any case which comes before it.
Since KRS 439.3106 makes no distinction between probation or parole, this Court finds as a matter of law that the requirements of KRS 439.3106 must apply to the Board as well as to the courts. The Board’s failure to make express findings on the record, oral or otherwise, demonstrating that the Board considered the
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requirements of KRS 439.3106, before their final revocation of Murrell’s parole, is a fatal flaw.
Murrell v. Kentucky Parole Board, 531 S.W.3d 503, 507 (Ky. App. 2017).
The Board is subject to KRS 439.3106. Consequently, its determination must indicate that sanctions other than revocation were considered and determined inappropriate. Nothing in the final decision rendered by the Board in this matter indicates it considered graduated sanctions. So, there remains a question of fact whether the Board did so consider before determining revocation was appropriate. Summary judgment was inappropriate given the dispute of fact.
CONCLUSION
As the disputes of material fact between the parties are evident, the circuit court erred in granting summary judgment. If one views the disputed facts in a light most favorable to Starks, as the trial court was required, it cannot be concluded it would have been impossible for Starks to adduce facts requiring a judgment in his favor. This matter is remanded to the Pike Circuit Court for proceedings consistent with this Opinion and the pending opinion from the Kentucky Supreme Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Katelyn E. Price Seth E. Fawns Frankfort, Kentucky Frankfort, Kentucky