Elizabeth Turpin v. Janet Conover Warden, Kentucky Correctional Institution for Women

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2019 CA 001038
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1038-MR

ELIZABETH TURPIN APPELLANT

APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE CHARLES R. HICKMAN, JUDGE ACTION NO. 18-CI-00613

JANET CONOVER, WARDEN, KENTUCKY CORRECTIONAL INSTITUTION FOR WOMEN APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.

KRAMER, JUDGE: Elizabeth Turpin appeals an order of the Shelby Circuit Court

dismissing her petition for declaration of rights regarding a prison disciplinary

proceeding. Upon careful review, we affirm.

Turpin is an inmate at the Kentucky Correctional Institution for

Women (“KCIW”) for her part in a hire-for-murder plot against her husband. She received a sentence of life without the possibility of parole for twenty-five years,

which she began serving in 1987. In November 2017, Captain Rebecca Denham

concluded an investigation into an alleged incident that occurred in May 2017 at

KCIW. The investigation revealed that Turpin arranged for her present husband to

deposit funds into the account of Cierra Rucker, another inmate at KCIW, for the

purpose of paying Rucker to assault two other inmates. As part of the

investigation, Captain Denham confidentially interviewed between three and ten

inmates who gave consistent statements regarding the incident. Turpin was

charged under Kentucky Corrections Policies and Procedures (“CPP”) 15.2 with

the offense of “Inchoate1 B 5-11, physical action against another inmate if three (3)

or more inmates are involved.” This charge is categorized as a major violation.

A confidential hearing was conducted. Turpin represented herself,

called no witnesses, and pleaded not guilty to the charges. The hearing officer

found that the confidential statements made by inmates during the investigation

were both reliable and consistent with Captain Denham’s report. Turpin was found

guilty of the charges against her and her punishment consisted of thirty (30) days

in the restricted housing unit and loss of ninety (90) days good time. The hearing

1 CPP 15.2(II)(E)(1) defines an inchoate violation as one in which an inmate “a) [a]ttempts to commit the violation; b) [s]olicits another or others to commit the violation; c) [c]onspires with another or others to commit the violation; [or] d) [a]ids the action of another or others in committing the violation.”

-2- officer did not specify whether the loss of good time was statutory or meritorious.

Turpin appealed to the prison warden, Janet Conover, who denied the appeal. In

her decision, Conover stated only that

I have reviewed your appeal. CPP 15.3 states Meritorious Good Time awarded under this procedure may be forfeited if the inmate is convicted of a major violation. Therefore, the 90 days GTL [good time loss] that you received is reflected on your inmate time card as 90 days loss of Meritorious Good [T]ime. The due process requirements appear to be in order. The evidence is sufficient in order to establish a finding of guilt. The Adjustment Committee’s decision will stand. Your appeal has been denied.

Turpin thereafter petitioned the Shelby Circuit Court for a declaration

of rights against Conover. Conover filed a motion to dismiss pursuant to CR2

12.02. After briefing, the circuit court granted Conover’s motion. This appeal

followed.

Turpin makes three arguments to this Court. She argues that she was

denied due process when the circuit court erroneously held that (1) KCIW’s

findings were supported by some reliable evidence; (2) her punishment of

forfeiture of good time was legal and applicable; and (3) KCIW’s finding that

Turpin was guilty was within the adjustment officer’s discretion when Rucker

received a less harsh penalty.

2 Kentucky Rule of Civil Procedure.

-3- Turning to Turpin’s first argument, we agree with Conover that it is

largely unpreserved. However, Turpin requests palpable error review in her reply

brief to this Court. Generally, we will not address an issue raised for the first time

in a reply brief. See Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979).

However, the Kentucky Supreme Court has ruled that

CR 76.12(1) and 76.12(4)(e) permit the appellant to file a reply brief “confined to points raised in the briefs to which they are addressed.” Generally, an appellant is not obliged to anticipate that the [appellee] will challenge preservation, and once it does he is free under the rule to reply to the [appellee’s] point by arguing that, even if unpreserved, the error is one that may be noticed as palpable. The [appellee], of course, may argue in its appellee’s brief not only that the alleged error is unpreserved but also that it does not warrant palpable error relief. It is neither unfair to the [appellee] nor unduly burdensome to expect it to use that opportunity to address as fully as it deems necessary an issue it has raised.

Commonwealth v. Jones, 283 S.W.3d 665, 670 (Ky. 2009).

When conducting palpable error review, this Court will reverse

only when a “manifest injustice has resulted from the error.” RCr[3] 10.26. “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). When we engage in palpable error review, our “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens

3 Kentucky Rule of Criminal Procedure.

-4- the integrity of the judicial process.”

Tackett v. Commonwealth, 445 S.W.3d 20, 26 (Ky. 2014) (citation omitted).

Upon review, we discern no palpable error. The question before us is

whether there was “some evidence” to support Turpin’s punishment by the

disciplinary authority at KCIW. To wit,

the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S. Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S. Ct. 260, 260-261, 68 L. Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974).

Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S.

445, 455-56, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985).

The confidential statements given by inmates to Captain Denham

were considered at the disciplinary hearing; they were found to be reliable and

credible. Hence, they constitute “some evidence” necessary to satisfy the very low

necessary standard of proof in a prison disciplinary action. Turpin unconvincingly

argues the statements were unreliable, but she did not offer any witnesses or

-5- evidence to refute the statements made by various inmates. Under palpable error

review, we discern no manifest injustice.

We now turn to Turpin’s second argument. As Conover points out, an

inmate stands to gain two types of good time credit: statutory or meritorious.

Regarding statutory good time credit, KRS4 197.045(1)(b) states that an inmate

may receive credit on her sentence if she satisfies any of the following:

1. Good behavior in an amount not exceeding ten (10) days for each month served, to be determined by the department from the conduct of the prisoner;

2. Performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operations and programs, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month; and

3. Acts of exceptional service during times of emergency, awarded at the discretion of the commissioner in an amount not to exceed seven (7) days per month.

CPP 15.3(II)(D), however, indicates that a violent offender such as

Turpin “may receive meritorious good time to the extent authorized by KRS

439.3401(4).” (Emphasis added.) In turn, KRS 439.3401(4) states that

[a] violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1. In 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 eighty-five percent (85%) of the sentence.

4 Kentucky Revised Statute.

-6- Thus, Turpin may only be awarded meritorious good time credit under KRS

197.045(1)(b)(2) and (3).

Turpin’s arguments in this regard are perplexing and circular in

nature. She acknowledges that she is ineligible to receive statutory good time, only

to then argue that statutory good time should have been forfeited before

meritorious credit when she lost ninety (90) days credit as part of her punishment.5

We note that Turpin’s inmate card does appear to show that statutory good time

may have been awarded to her in 1989 and again in 1996. Whether these awards

were correct or incorrect is not before this Court. Regardless of what appears on

her inmate card, Turpin is clearly not eligible to receive statutory good time credit.

Turpin also argues that she is ineligible for meritorious good time

because she is serving a life sentence. Turpin contends that the loss of meritorious

good time is “illegal” in her instance. She points to the KCIW Inmate Handbook

in support of this contention and has attached relevant pages to her reply brief to

this Court. We note that this argument is also unpreserved. The inmate handbook

does not appear in the record before us, nor did Turpin cite to it in her appeal to

Conover or the circuit court. Accordingly, we review only for palpable error and

discern none.

5 See CPP 15.3(V)(B).

-7- Indeed, it is well-established law that an inmate has no liberty interest

in the receipt of meritorious good time because it is awarded entirely at the

discretion of the DOC. Hill v. Thompson, 297 S.W.3d 892, 897 (Ky. App. 2009).

Because the award of meritorious good time under CPP 15.3 is left entirely to the

discretion of prison administrators, inmates have no protected liberty interest at

stake in its denial. Anderson v. Parker, 964 S.W.2d 809, 810 (Ky. App. 1997); see

also Marksberry v. Chandler, 126 S.W.3d 747, 752 (Ky. App. 2003), as modified

on reh’g (Jan. 30, 2004). We agree with Conover’s reasoning that even if Turpin

was incorrectly awarded meritorious good time, forfeiture of it amounts to no more

than harmless error because her substantial rights were not affected. Cohron v.

Commonwealth, 306 S.W.3d 489, 496 (Ky. 2010). Stated plainly, the loss of

meritorious good time in no way affects the length of Turpin’s life sentence.6

Further, even if Turpin lost meritorious good time to which she was never entitled

to begin with, she cannot now argue that she was denied due process in the loss of

6 Turpin argues that KCIW issues meritorious good time to ineligible inmates as a “disciplinary marker.” However, she does not expand upon that argument, and it is unclear what is meant by a “disciplinary marker.” In Turpin’s case, we can only speculate that perhaps it refers to the possibility that the parole board will consider Turpin’s loss of meritorious good time in its decision to grant or deny parole (Turpin is serving a life sentence with parole eligibility after twenty-five years. She began serving her sentence in 1987.). Regardless, we cannot address an argument that Turpin fails to make. We do note, however, that there is no protected liberty interest in parole to which inmates have a legitimate claim of entitlement. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 587 (Ky. App. 1996).

-8- that time.7 Given that this portion of her “punishment” was not something she was

ever constitutionally or statutorily actually entitled to, we fail to see how she has

suffered any type of loss, protected or otherwise. Hence, this circular argument

lacks all merit.

We are also unpersuaded by Turpin’s argument that she was denied

due process because Conover imposed “a different penalty” on appeal. The

adjustment officer did not specify what type of good time Turpin was required to

forfeit, and Conover merely clarified that it was meritorious. Again, we discern no

error.

Turpin’s third argument relies exclusively on comparison between the

punishment she received and the punishment Rucker received. Turpin argues that

she received a more severe punishment that Rucker and that this decision was

arbitrary.

To show her punishment was arbitrary, Turpin must show that the

administrative action of KCIW (1) exceeded the scope of its granted powers; (2)

did not provide her procedural due process; and (3) was not supported by “some

evidence.” See American Beauty Homes Corp. v. Louisville and Jefferson County

7 “In order to prevail on a Fourteenth Amendment procedural due process claim, a party must establish (1) that he enjoyed a protected ‘liberty’ or ‘property’ interest within the meaning of the Due Process Clause, and (2) that he was denied the process due him under the circumstances.” Marksberry v. Chandler, 126 S.W.3d 747, 749 (Ky. App. 2003) (footnote omitted).

-9- Planning and Zoning Commission, 379 S.W.2d 450 (Ky. 1964). Turpin fails to

demonstrate that Conover exceeded the scope of her power or that Turpin was

denied procedural due process.8 We previously addressed the “some evidence”

standard herein. It is worth noting that despite Turpin’s numerous references to

Rucker’s punishment as compared to her own, Rucker’s record is not before this

Court, nor is her punishment, or anything at all specifically related to Rucker and

the alleged incident that occurred in May 2017, at KCIW.

Turpin’s argument that she was treated differently is actually more

akin to an equal protection argument, which she does not make before us.

Nonetheless, she cannot “make out a violation of [her] equal protection rights

simply by showing that other inmates were treated differently.” Newell v. Brown,

981 F.2d 880, 887 (6th Cir. 1992).9 Rather, Turpin would have to show that she

“was victimized because of some suspect classification, which is an essential

8 Inmates are entitled to the following procedural due process protections when they stand to lose good time: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Hill, 472 U.S. 445 at 454, 105 S. Ct. at 2773. Turpin does not contest that she received these protections. 9 Several Kentucky Court of Appeals cases cite Newell, 981 F.2d at 887, for this point of law; however, they were depublished by the Kentucky Supreme Court or not published by our Court. See, e.g., Meacham v. Department of Corrections, No. 2016-CA-001395-MR, 2017 WL 4847694, at *2 (Ky. App. Oct. 27, 2017), opinion not to be published (Mar. 14, 2018); Yokely v. Morgan, No. 2006-CA-000408-MR, 2007 WL 1194194, at *2 (Ky. App. Mar. 30, 2007) (unpublished).

-10- element of an equal protection claim.” Id. (quoting Booher v. United States Postal

Service, 843 F.2d 943, 944 (6th Cir. 1988)). This, she has not done.

Based on the foregoing, we discern no error and AFFIRM the Shelby

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

J. Vincent Aprile II Allison R. Brown Louisville, Kentucky Frankfort, Kentucky

-11-