RENDERED: DECEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1354-MR
KEVIN HENDERSON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 19-CI-00411
BRAD ADAMS APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Kevin Henderson appeals from the Franklin Circuit
Court’s order dismissing his petition for a writ of mandamus. Having reviewed the
pleadings and the trial court’s order, we affirm the Franklin Circuit Court.
FACTS
Kevin Henderson (Henderson) was sentenced to life imprisonment
after being convicted of murder and robbery in Jefferson Circuit Court in 1998.
After filing multiple unsuccessful actions challenging his conviction and sentence
over the years, in 2019, he filed a “Petition for a Writ of Prohibition and
Mandamus.”
Henderson requested the Franklin Circuit Court to compel the
Kentucky Department of Corrections to amend his classification, arguing that
applying current statutes and regulations in arriving at his classification was an ex
post facto violation. He also alleged that the pre-parole progress report prepared
and presented to the Kentucky Parole Board for its consideration contained falsities
and asked the Franklin Circuit Court to order the Department to “remove” the
alleged incorrect facts. The Department of Corrections, representing the
respondent warden, filed a motion to dismiss.1
According to the pleadings he filed in the trial court, Henderson’s
institutional classification had been adjusted due to changes in the classification
system implemented since his initial classification when he was first classified by
the Department of Corrections in 1998. He also complains that there are
inaccurate facts included in his pre-parole progress report. This is a document
created for presentation to the Kentucky Parole Board to aid the Board in
determining whether parole is appropriate for a particular inmate upon that inmate
1
Warden Brad Adams is the warden at Northpoint Training Center, where Henderson was
apparently housed at the time the pre-parole progress report was authored. Henderson is no
longer incarcerated at Northpoint.
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completing the commensurate portion of their sentence of imprisonment such as to
become eligible for parole. The Department responded that an inmate is not
entitled to a particular classification score and thus has no right to seek a writ to
enforce the entry of such. Further, the pre-parole progress report was accurate as
to the facts adduced at Henderson’s trial, and his claim would be time-barred in
any event, as the pre-parole progress report was prepared in 2009, some ten years
prior to the filing of the petition for a writ.
For the following reasons, we affirm the Franklin Circuit Court’s
order dismissing the petition for a writ of mandamus.
STANDARD OF REVIEW
An appellate court reviews the decisions of a trial court in granting or
dismissing a petition for a writ for an abuse of discretion. “It bears repeating that
the issuance of a writ is inherently discretionary. Even if the requirements are met
and error found, the grant of a writ remains within the sole discretion of the Court.”
Caldwell v. Chauvin, 464 S.W.3d 139, 145-46 (Ky. 2015) (citing Edwards v.
Hickman, 237 S.W.3d 183, 189 (Ky. 2007)).
ANALYSIS
First, it must be understood that a writ is “extraordinary relief” which
should be jealously provided and the granting of such is discouraged. Buckley v.
Wilson, 177 S.W.3d 778 (Ky. 2005).
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Because their implementation is a rarified remedy, the courts have
made clear that special circumstances must exist for the proper issuance of a writ.
A plaintiff must show that 1) he or she has a clear right to the relief sought; 2) the
defendant has a clear duty to so act; and 3) no other adequate remedy is available.
See County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607,
613 (Ky. 2002). Thus, Henderson had to show that he had a right to the relief he
was requesting, that the Department of Corrections had a duty to provide that
relief, and that he had no other adequate remedy to obtain such relief. He fails on
all three points as to both issues he raises.
Henderson petitioned the Franklin Circuit Court to order the
Department of Corrections to cease the application of an updated classification
scheme to him, arguing that doing so amounted to ex post facto application of a
law passed after his conviction and was therefore unlawful. However, as the trial
court pointed out, in order to fall under the ex post facto prohibition, the
consequence of the application of a novel statute must be to change the definition
of criminal conduct or to increase the penalty for such, neither of which occurred
here.
Both the United States Constitution and the
Kentucky Constitution prohibit ex post facto laws. U.S.
Const. art. I, § 10; Ky. Const. § 19(1). An ex post facto
law is any law, which criminalizes an act that was
innocent when done, aggravates or increases the
punishment for a crime as compared to the punishment
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when the crime was committed, or alters the rules of
evidence to require less or different proof in order to
convict than what was necessary when the crime was
committed. Purvis v. Commonwealth, 14 S.W.3d 21, 23
(Ky. 2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386,
390, 1 L.Ed. 648 (1798)). The key inquiry is whether a
retrospective law is punitive. Martin v. Chandler, 122
S.W.3d 540, 547 (Ky. 2003) (citing California Dept. of
Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597,
131 L.Ed.2d 588 (1995)).
Buck v. Commonwealth, 308 S.W.3d 661, 664-65 (Ky. 2010).
We agree with the trial court. The change in the classification system
did not criminalize previously innocent behavior, nor did it increase the
punishment by lengthening the maximum available sentence for the crimes for
which Henderson was convicted. Not every change in law or regulation which
might be perceived by the inmate to be a negative will be of constitutional
dimension, and this is not.
In addition, Henderson had no right to a particular classification and
the Department had no duty to change his classification. Further, he could have
sought a declaratory judgment; thus, he had other adequate remedies available to
him. See KRS2 418.040; Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App. 1997)
(“A petition for declaratory judgment pursuant to KRS 418.040 has become the
vehicle, whenever Habeas Corpus proceedings are inappropriate, whereby inmates
2
Kentucky Revised Statutes.
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may seek review of their disputes with the Corrections Department.”). Therefore,
the trial court properly denied relief as to the classification score.
Henderson also sought to have the Department of Corrections made to
“correct” his pre-parole progress report compiled in 2009. Henderson was simply
out of time to seek redress of any perceived wrong as to a document prepared in
2009. He had one year to lodge such complaint and waited more than ten years.
As the trial court also recognized, Henderson will again have an opportunity to
contest any information presented to the Parole Board when he comes before them
again for a hearing in 2021.
Further, Henderson had no right to the remedy he sought. The
Department had no duty to “correct” information in the report to reflect
information not adduced at trial—Henderson’s claim that his co-defendant had,
years later, allegedly stated in a letter, not sworn testimony, that Henderson was
not the one who fired the shot in the crime. Last, Henderson had an adequate
remedy at law, as he could have filed a declaratory judgment action pertaining to
this matter, and therefore was not entitled to the extraordinary remedy of a writ.
CONCLUSION
For all of the foregoing reasons, we affirm the Franklin Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kevin Henderson, pro se Allison R. Brown
LaGrange, Kentucky Frankfort, Kentucky
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