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NOT TO BE PUBLISHED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.”
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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.
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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.
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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
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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.
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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).
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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).
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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).
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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).
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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
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