Marvin T. Pennington v. Kentucky Parole Board

Court of Appeals of Kentucky

Marvin T. Pennington v. Kentucky Parole Board

Court of Appeals of Kentucky·Decided September 4, 2026·No. 2025-CA-1578·Unpublished

Opinion

RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-1578-MR

MARVIN T. PENNINGTON APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 25-CI-00036

KENTUCKY PAROLE BOARD AND LADEIDRA JONES APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES.

THOMPSON, CHIEF JUDGE: Marvin T. Pennington (Appellant), pro se, appeals from an Order of the Franklin Circuit Court granting the motion of Kentucky Parole Board (the Board) and Board Chair Ladeidra Jones (Jones) to dismiss Appellant’s Petition for Declaration of Rights and Injunctive Relief Pursuant to Kentucky Revised Statutes (KRS) 418.040. Appellant raises several claims of

error arising from the order on appeal. After careful review of the record and the law, we find no error and affirm the Franklin Circuit Court’s order dismissing the Petition.

FACTS AND PROCEDURAL HISTORY Petitioner is an inmate housed at the Little Sandy Correctional Complex (LSCC). In 1995, he was convicted of rape in the first degree1 and related offenses, and sentenced to 105 years in prison. In 2008, the Board issued a “serve-out order” requiring Appellant to serve his full sentence.

In 2023, the Fayette Circuit Court reduced Appellant’s sentence to a maximum of 70 years in prison. Then, on February 7, 2024, Appellant asked the Board about his parole eligibility, and requested a review of the 2008 serve-out order. On February 13, 2024, the LSCC Records Department denied Appellant’s request. Appellant appealed to the Kentucky Department of Corrections Offender Information Services Branch, which denied his review.

Thereafter, in April of 2024, Appellant, continuing pro se, appealed to the Board, asserting his entitlement to a review of the 2008 serve-out order. On November 8, 2024, the Board denied Appellant’s appeal, noting that his sentence reduction to 70 years did not alter the terms of the serve-out.

1 KRS 510.040.

Appellant then filed a Petition in Franklin Circuit Court per KRS 418.040, seeking a declaratory judgment holding that he was entitled to parole eligibility. In support of the Petition, Appellant raised Due Process and other constitutional arguments. Thereafter, various motions were filed by both parties, including Appellees’ motion to dismiss; Appellant’s motion to suspend compliance with Kentucky Rules of Civil Procedure (CR) 7.02 (requirement that pleadings be typewritten); Appellant’s motion to strike as non-timely Appellees’ Response and Motion to Dismiss; and, Appellant’s motion to advance his earlier motion to strike.

On December 15, 2025, the Franklin Circuit Court entered an order disposing of each of the pending motions. It granted Appellant’s motion to suspend the requirement that pleadings be typed; denied Appellant’s motion to strike upon determining that Appellant did not submit an affidavit showing that he did not receive Appellees’ motion to dismiss; and lastly, the court granted Appellees’ motion to dismiss the Petition. In support of the last ruling, the circuit court determined that parole is a privilege which the executive branch may grant or deny at its discretion. Having found no abuse of discretion in the Board’s denial of Appellant’s request that it reconsider the serve-out order, it dismissed Appellant’s Petition. This appeal followed.

ARGUMENTS AND ANALYSIS

Appellant first argues that the Franklin Circuit Court erred in failing to grant his motion to strike Appellees’ motion to dismiss. Appellant argues that Appellees’ motion to dismiss was not served on him in a timely manner, thus requiring the circuit court to strike Appellees’ pleading.

In addressing this issue, the circuit court found that Appellees’ motion to dismiss contained a certification pursuant to CR 5.03 that a copy was mailed to Appellant on March 13, 2025. Finding no verified, contradicting evidence to Appellees’ certification of service, the circuit court found no basis to strike Appellee’s motion to dismiss. Having examined the record, we agree with the circuit court that Appellees certified service per CR 5.03, and that Appellant tendered no evidence sufficient to rebut Appellees’ certification. “Service is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served.” CR 5.02(1). Appellant has not demonstrated that Appellees learned nor had reason to know that their motion to dismiss allegedly failed to reach Appellant. We find no error.

Further, we find no error in Appellant’s related second argument that the circuit court erred in holding Appellant to the same legal standard required of practicing attorneys. This argument appears to be based on Appellant’s failure to

rebut Appellees’ certification of service, rather than his motion to waive the requirement that pleadings must be typewritten which the court granted.

Though a degree of lenity is afforded pro se litigants and they are not strictly held to the same standard as legal counsel, Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983), the judiciary’s conciliatory attitude is not boundless. Cardwell v.

Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011).

The right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the litigant exercising the right, King v. Commonwealth, 374 S.W.3d 281, 290 (Ky. 2012)

(citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.

Ct. 944, 79 L. Ed. 2d 122 (1984)), and one who undertakes self-representation assumes “the dangers and disadvantages” thereof. Id. at 292 (citations omitted).

Proceeding pro se does not provide one with “a license not to comply with relevant rules of procedural and substantive law.” Faretta v. California, 422 U.S. 806, 835 n.46, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975).

Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App. 2013). Here, though Appellant is proceeding pro se, he is nonetheless subject to the service rules set out in CR 5.02 and CR 5.03. The Franklin Circuit Court did not err in so ruling.

Appellant’s remaining arguments center on his claim that the circuit court erred in dismissing his Petition seeking a declaratory judgment. He argues that the circuit court improperly characterized parole as a privilege, and erred in ruling that the Board acted within its discretion in declining to modify its prior ruling that Appellant must serve out his sentence. As such, he requests that the

order dismissing be reversed and remanded with instructions for the Board to conduct a new “initial hearing” on parole.

Conn v. Kentucky Parole Board, 701 S.W.3d 76 (Ky. 2024), reh’g denied (Aug. 22, 2024), upon which the Franklin Circuit Court relied, is dispositive. In Conn, parole-eligible inmates serving life sentences received serve- out orders denying them any further opportunity for parole for the remainder of their sentences. The inmates challenged the Board’s action. The Franklin Circuit Court denied the inmates’ motion for summary judgment, and the inmates appealed. A panel of this Court affirmed the circuit court, and the Kentucky Supreme Court affirmed this Court on discretionary review.

Free access — add to your briefcase to read the full text and ask questions with AI

RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2025-CA-1578-MR

MARVIN T. PENNINGTON APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 25-CI-00036

KENTUCKY PAROLE BOARD AND LADEIDRA JONES APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND CETRULO, JUDGES.

THOMPSON, CHIEF JUDGE: Marvin T. Pennington (Appellant), pro se, appeals from an Order of the Franklin Circuit Court granting the motion of Kentucky Parole Board (the Board) and Board Chair Ladeidra Jones (Jones) to dismiss Appellant’s Petition for Declaration of Rights and Injunctive Relief Pursuant to Kentucky Revised Statutes (KRS) 418.040. Appellant raises several claims of

error arising from the order on appeal. After careful review of the record and the law, we find no error and affirm the Franklin Circuit Court’s order dismissing the Petition.

FACTS AND PROCEDURAL HISTORY Petitioner is an inmate housed at the Little Sandy Correctional Complex (LSCC). In 1995, he was convicted of rape in the first degree1 and related offenses, and sentenced to 105 years in prison. In 2008, the Board issued a “serve-out order” requiring Appellant to serve his full sentence.

In 2023, the Fayette Circuit Court reduced Appellant’s sentence to a maximum of 70 years in prison. Then, on February 7, 2024, Appellant asked the Board about his parole eligibility, and requested a review of the 2008 serve-out order. On February 13, 2024, the LSCC Records Department denied Appellant’s request. Appellant appealed to the Kentucky Department of Corrections Offender Information Services Branch, which denied his review.

Thereafter, in April of 2024, Appellant, continuing pro se, appealed to the Board, asserting his entitlement to a review of the 2008 serve-out order. On November 8, 2024, the Board denied Appellant’s appeal, noting that his sentence reduction to 70 years did not alter the terms of the serve-out.

1 KRS 510.040.

Appellant then filed a Petition in Franklin Circuit Court per KRS 418.040, seeking a declaratory judgment holding that he was entitled to parole eligibility. In support of the Petition, Appellant raised Due Process and other constitutional arguments. Thereafter, various motions were filed by both parties, including Appellees’ motion to dismiss; Appellant’s motion to suspend compliance with Kentucky Rules of Civil Procedure (CR) 7.02 (requirement that pleadings be typewritten); Appellant’s motion to strike as non-timely Appellees’ Response and Motion to Dismiss; and, Appellant’s motion to advance his earlier motion to strike.

On December 15, 2025, the Franklin Circuit Court entered an order disposing of each of the pending motions. It granted Appellant’s motion to suspend the requirement that pleadings be typed; denied Appellant’s motion to strike upon determining that Appellant did not submit an affidavit showing that he did not receive Appellees’ motion to dismiss; and lastly, the court granted Appellees’ motion to dismiss the Petition. In support of the last ruling, the circuit court determined that parole is a privilege which the executive branch may grant or deny at its discretion. Having found no abuse of discretion in the Board’s denial of Appellant’s request that it reconsider the serve-out order, it dismissed Appellant’s Petition. This appeal followed.

ARGUMENTS AND ANALYSIS

Appellant first argues that the Franklin Circuit Court erred in failing to grant his motion to strike Appellees’ motion to dismiss. Appellant argues that Appellees’ motion to dismiss was not served on him in a timely manner, thus requiring the circuit court to strike Appellees’ pleading.

In addressing this issue, the circuit court found that Appellees’ motion to dismiss contained a certification pursuant to CR 5.03 that a copy was mailed to Appellant on March 13, 2025. Finding no verified, contradicting evidence to Appellees’ certification of service, the circuit court found no basis to strike Appellee’s motion to dismiss. Having examined the record, we agree with the circuit court that Appellees certified service per CR 5.03, and that Appellant tendered no evidence sufficient to rebut Appellees’ certification. “Service is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served.” CR 5.02(1). Appellant has not demonstrated that Appellees learned nor had reason to know that their motion to dismiss allegedly failed to reach Appellant. We find no error.

Further, we find no error in Appellant’s related second argument that the circuit court erred in holding Appellant to the same legal standard required of practicing attorneys. This argument appears to be based on Appellant’s failure to

rebut Appellees’ certification of service, rather than his motion to waive the requirement that pleadings must be typewritten which the court granted.

Though a degree of lenity is afforded pro se litigants and they are not strictly held to the same standard as legal counsel, Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983), the judiciary’s conciliatory attitude is not boundless. Cardwell v.

Commonwealth, 354 S.W.3d 582, 585 (Ky. App. 2011).

The right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the litigant exercising the right, King v. Commonwealth, 374 S.W.3d 281, 290 (Ky. 2012)

(citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.

Ct. 944, 79 L. Ed. 2d 122 (1984)), and one who undertakes self-representation assumes “the dangers and disadvantages” thereof. Id. at 292 (citations omitted).

Proceeding pro se does not provide one with “a license not to comply with relevant rules of procedural and substantive law.” Faretta v. California, 422 U.S. 806, 835 n.46, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975).

Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App. 2013). Here, though Appellant is proceeding pro se, he is nonetheless subject to the service rules set out in CR 5.02 and CR 5.03. The Franklin Circuit Court did not err in so ruling.

Appellant’s remaining arguments center on his claim that the circuit court erred in dismissing his Petition seeking a declaratory judgment. He argues that the circuit court improperly characterized parole as a privilege, and erred in ruling that the Board acted within its discretion in declining to modify its prior ruling that Appellant must serve out his sentence. As such, he requests that the

order dismissing be reversed and remanded with instructions for the Board to conduct a new “initial hearing” on parole.

Conn v. Kentucky Parole Board, 701 S.W.3d 76 (Ky. 2024), reh’g denied (Aug. 22, 2024), upon which the Franklin Circuit Court relied, is dispositive. In Conn, parole-eligible inmates serving life sentences received serve- out orders denying them any further opportunity for parole for the remainder of their sentences. The inmates challenged the Board’s action. The Franklin Circuit Court denied the inmates’ motion for summary judgment, and the inmates appealed. A panel of this Court affirmed the circuit court, and the Kentucky Supreme Court affirmed this Court on discretionary review.

The high court held in relevant part that parole is a privilege and not a right, and that the Board may exercise discretion in granting or denying parole, as well as the application of serve-outs. Conn, 701 S.W.3d at 85-86. The Franklin Circuit Court correctly articulated and applied Conn’s holding herein, in concluding that Appellant was not entitled to parole, and that the Board did not abuse its discretion in declining to revisit the prior serve-out order. Further, and also based on Conn, the Franklin Circuit Court correctly determined that the Board has the sole responsibility for Appellant’s parole eligibility and is vested with authority to order him to serve out his sentence in its entirety. Id. at 84-85. We find no basis for concluding that the Board was required to reconsider the serve-out

order based on the reduction of Appellant’s maximum sentence to 70 years in prison.

CONCLUSION

The Franklin Circuit Court correctly denied Appellant’s motion to strike Appellees’ motion to dismiss. In addition, it did not err in holding Appellant to the same legal standard required of practicing attorneys. Finally, the circuit court properly applied Conn in concluding that the Board did not abuse its discretion in declining to revisit the prior serve-out order. For these reasons, we find no error and affirm the December 15, 2025, order of the Franklin Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.

Marvin T. Pennington, pro se Sandy Hook, Kentucky

Marvin T. Pennington v. Kentucky Parole Board, (Ky. Ct. App. 2026).

Pincite

Marvin T. Pennington v. Kentucky Parole Board (Marvin T. Pennington v. Kentucky Parole Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related