RENDERED: JULY 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1352-MR
KEITH M. OWENS APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 20-CI-00447
KENTUCKY DEPARTMENT OF
CORRECTIONS APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
COMBS, JUDGE: Keith Owens, Appellant, is a prisoner challenging an opinion
and order of the Franklin Circuit Court that dismissed his petition for declaration of
rights. Owens believes that he is entitled to certain custody time credits pursuant
to KRS1 532.120(3). Therefore, he contends that the trial court abused its
1
Kentucky Revised Statutes.
discretion in dismissing his petition. Because Owens has failed to demonstrate that
he exhausted his administrative remedies, we affirm the order of dismissal.
Owens is serving a 120-year aggregate sentence for multiple counts of
first- and second-degree robbery and two counts of second-degree persistent felony
offender continued in four indictments. He was paroled from March 13, 2013 –
September 29, 2014.
On September 28, 2014, while on parole, Owens was charged with
eight additional counts of robbery.2 His parole was revoked on September 29,
2014. On June 26, 2017, Owens appeared for final sentencing before Honorable
Mitch Perry, Jefferson Circuit Court, Division Three, who entered judgment and
conviction of sentence as follows in relevant part:
14CR2597
• Robbery in the First Degree (1 Count) – Ten (10)
Years
• Robbery in the Second Degree (7 Counts)
(Amended) – Ten (10) Years enhanced to Twenty
(20) Years
17-CR-1088
• Persistent Felony Offender in the Second Degree
(Amended) – Indeterminate
2. The sentences shall run concurrent [sic] for a total of
twenty (20) years to serve.
3. The Defendant shall be entitled to credit for any time
served pursuant to KRS 532.120, and in accordance with
the custody time report prepared by the Division of
Probation and Parole.
2
Subsequently docketed as Case No. 14-CR-2597.
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(Emphases in original.)
This appeal arises out of the dismissal of Owens’s petition for
declaration of rights in which he alleged that Appellees improperly denied custody
time credit served toward his current felony conviction in Case No. 14-CR-2597.
In his supporting memorandum, Owens argued that he was “in custody” in Case
No. 14-CR-2597 from October 7, 2014, the date of the indictment, to June 27,
2017, the date of final sentencing; that the sentencing court had granted him
custody time credit toward his new felony conviction and that the credit had been
calculated to be 32 months and 28 days by “Mr. Bob Bohlen, then Probation &
Parole calculation guru[.]” Approximately two years later, in April 2019, Owens
became eligible to be placed at a minimum custody facility. According to Owens,
when his custody change request was submitted for final review, an offender
information specialist -- a Mr. Lamb -- rescinded his custody credit pursuant to
Kentucky Corrections Policy and Procedure (C.P.P.) 28-01-08(II)(A)(4), which
provides as follows:
If an offender is serving an imposed felony sentence
simultaneously while also held on the felony offense for
which the custody time credit is being calculated,
probation and parole staff shall not count any custody
time credit until the felony sentence has expired, since
credit for the time served is calculated as institutional
credit.
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Owens explained that once “informed of the matter, he appealed by
filing [a] C.P.P. 17.4, Administrative Review Form to address recalculation of
custody time credits . . . with the Northpoin[t] T[ ]raining Center’s, Offender
Information Office first.” The Appendices to Owens’s Memorandum reflect the
procedural chronology as summarized below.
By Form C.P.P. 17.4 dated May 2, 2019,3 Owens requested review of
“Sentence Calculations: Sentence Length and Jail Credit.” As noted above,
Owens filed that request with the Northpoint Training Center Offender Information
Office.
By letter dated May 6, 2019, addressed to a Mr. Herald, 4 Owens
explained that his “hopes are to have my 32 months and 28 days credited back
towards my sentence and then my parole date be calculated from 10-2014.”
Although there is no address on the letter, the record reflects that Mr. Herald is the
District 4 Supervisor of the Office of Probation and Parole in Louisville.
By document dated May 8, 2019, “INSTITUTIONAL OFFENDER
INFORMATION SERVICES RESPONSE” (emphasis original), Lisa Douglas
responded to Owen’s May 2, 2019 Form C.P.P. 17.4, as follows:
3
Memorandum in Support of Petition for Declaration of Rights, Appendix “A,” Record on
Appeal (ROA), pp. 37-39.
4
Id., Appendix “E,” ROA, pp. 44-46.
-4-
This is an administrative remedy in compliance with CPP
17.4 in response to your request for administrative
review. In your request, you are inquiring about your
sentence length, ultimate date, PE date, and jail credit.
Your sentence length is 120 years. Your PE date and
Ultimate date is 12/25/2025. These dates must match
due to you [sic] serving on a Class B felony. You must
serve at least 85% of the sentence imposed. See KRS
439.3401.
If you feel there is an error regarding the amount of
jail credit you received you will need to write to
Probation & Parole in your sentencing county to get
that amended. We cannot change jail credit without a
custody time credit provided by P & P.
If you wish to appeal this response you have 10 working
days to submit this form and explain why you are
appealing the response to the address shown below. [The
address is listed as Department of Corrections, Offender
Information Services Branch, in Frankfort.]
(Emphasis added.) On May 9, 2019, Owens appealed Douglas’s response to the
Department of Corrections Offender Information Services Branch in Frankfort,
contesting the refusal to credit him with time served.5
By letter dated May 16, 2019, Jerry Sudduth, Offender Information
Administrator, at Offender Information Services, Frankfort, Kentucky,6 advised
Owens that:
This letter is in response to your 17.4
correspondence of May 9, 2019 regarding Jail Credit.
I reviewed your request and I concur with the
answer you received from Northpoint Training Center.
5
Id., Appendices “B” & “C,” ROA, pp. 40-42.
6
Id., Appendix “D,” ROA, p. 43.
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You must contact Probation and Parole to review
your Jail Credit. State law requires Probation and
Parole to calculate the total time an offender spends in
custody prior to sentencing; this is not a function of
Offender Information Services. Offender Information
Services applies the credit based on Probation and
Parole’s review. Please send your request for Jail Credit
to the following address:
Department of Corrections
Probation and Parole District 4
410 W. Chestnut St.
Louisville, KY 40202
I regret I could not give you a more positive
answer regarding your request.
(Emphasis added.)
On June 5, 2019, William Herald, District 4 Supervisor at the Office
of Probation and Parole, 410 West Chestnut Street, Louisville, Kentucky,
responded to Owens by written memorandum “RE: Request for Review of
Sentence Calculation and Jail Credit – Keith Owens[,]”7 as follows:
Regarding your time spent in custody from 9-28-14 thru
6-26-17 you are not eligible for this time as you were a
state inmate serving on a prior felony conviction for
case(s) 87-CR-466 and 93-CR-277. I refer you to
Corrections Policy and Procedure 28-01-08 II A (4).
...
As the sentence for 87-CR-466 and 93-CR-277 did not
expire prior to your being sentenced in case 14-CR-2597
and 17-CR-1088 no additional jail credit is authorized.
7
Id., Appendix “F,” ROA, pp. 47-48.
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Finally, regarding your Parole Eligibility determination,
this is not a function of Probation and Parole and would
fall within the purview of Offender Records. You will
need to seek answers from them as to why your Parole
Eligibility date changed after your April 8, 2019 Custody
Classification.
If you feel that this explanation is in error, you will need
to resubmit a request for reconsideration, which needs to
include the specific days you feel have not been credited.
A copy of this correspondence will be forwarded to
Offender Records to be included in your record.
It does not appear that Owens requested reconsideration or appealed
from Herald’s June 5, 2019, written response.
On August 10, 2020, Appellees filed a motion to dismiss Owens’s
petition for declaration of rights in the Franklin Circuit Court pursuant to CR8
12.02 for failure to state a claim upon which relief can be granted. Relying upon
C.P.P. 28-01-08(II)(A)(4), Appellees argued as follows:
[O]nce [Owens’s] parole was revoked, he began serving
time on the sentences he had been paroled from.
Ostensibly, Owens is laboring under the mistaken belief
that he is entitled to “jail credit” for time he was
incarcerated toward satisfaction of indictment 14-CR-
2597. But an offender cannot be housed in a prison as a
state inmate and be simultaneously earning jail credit
toward satisfaction of pending charges.
8
Kentucky Rules of Civil Procedure.
-7-
The Franklin Circuit Court agreed with Appellees and granted their
motion to dismiss by order entered on September 17, 2020. It is that order from
which Owens now appeals.
In Sanders v. Commonwealth, 600 S.W.3d 266 (Ky. App. 2020), this
Court explained that:
The current language of KRS 532.120(3), . . . effective
June 8, 2011, no longer authorizes trial courts to credit
felony sentences for time spent in custody before
sentencing. The General Assembly granted that authority
instead to the Department of Corrections. While a
defendant may challenge a decision of the Department of
Corrections to award pretrial jail-time credit by filing a
motion in the sentencing court, he must first exhaust his
administrative remedies with the appropriate authority.
KRS 532.120(9).
KRS 532.120(3) provides that:
Time spent in custody prior to the commencement of a
sentence as a result of the charge that culminated in the
sentence shall be credited by the Department of
Corrections toward service of the maximum term of
imprisonment in cases involving a felony sentence and
by the sentencing court in all other cases. If the sentence
is to an indeterminate term of imprisonment, the time
spent in custody prior to the commencement of the
sentence shall be considered for all purposes as time
served in prison.
KRS 532.120(9) provides that:
An inmate may challenge a failure of the Department of
Corrections to award a sentencing credit under this
section or the amount of credit awarded by motion made
in the sentencing court no later than thirty (30) days after
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the inmate has exhausted his or her administrative
remedies.
Owens did not file a motion in the sentencing court. Nor did he
exhaust his administrative remedies. KRS 454.415 provides that:
(1) No action shall be brought by or on behalf of an inmate, with
respect to:
...
(b) Challenges to a sentence calculation; [or]
(c) Challenges to custody credit
...
until administrative remedies as set forth in the policies and
procedures of the Department of Corrections, . . . are exhausted.
(2) Administrative remedies shall be exhausted even if the remedy the
inmate seeks is unavailable.
(3) The inmate shall attach to any complaint filed documents verifying
that administrative remedies have been exhausted.
In Woods v. Commonwealth, 599 S.W.3d 894, 897 (Ky. App. 2020),
this Court explained as follows:
The penalty for failing to comply with administrative
remedies is dismissal of the action. KRS 454.415(4).
Although Owens submitted a written request for “Review of Sentence
Calculation and Jail Credit” to Mr. Herald, District 4 Supervisor at the Office of
Probation and Parole in Louisville (where Owens was sentenced), he failed to
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appeal Probation and Parole’s June 5, 2019, written response concerning custody
time credit to the Offender Information Services Branch as required both by C.P.P.
17.4 (I)(D)(3)(a) and by C.P.P. 28-01-08 (II)(D)(3)(a). Owens failed to exhaust his
administrative remedies as mandated in order to be eligible to file a petition in a
court.
Therefore, we AFFIRM the order of the Franklin Circuit Court
dismissing his petition.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Keith M. Owens, pro se Allison R. Brown
Burgin, Kentucky Frankfort, Kentucky
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