RENDERED: MARCH 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0369-MR
MARCUS IVY APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 21-CI-00036
KENTUCKY PAROLE BOARD APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.
EASTON, JUDGE: Appellant Marcus Ivy (“Ivy”) filed for declaratory judgment
in the Franklin Circuit Court after his parole was revoked by the Kentucky Parole
Board (“Parole Board”). Ivy appeals from the circuit court’s order granting the
Parole Board’s motion for summary judgment. Ivy contends the revocation of his
parole was constitutionally deficient and not supported by the facts. Upon review
of the record and applicable legal authority, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Ivy was serving a ten-year sentence for second-degree burglary until
released on parole on June 21, 2018. On April 3, 2019, Ivy’s parole officer
conducted a home visit at Ivy’s listed address. When the parole officer arrived, a
female resident opened the door and indicated Ivy did not live there and that she
did not know him. That same day, Ivy failed to meet with his reentry coordinator
for a scheduled meeting. The parole officer then called Ivy, who said he would be
at the parole office in ten minutes. Ivy never appeared.
On April 8, 2019, Ivy’s parole officer tried and failed to reach Ivy by
telephone. The parole officer left a voicemail for Ivy instructing him to report by 4
p.m. Ivy still did not meet with his parole officer. That same day, the parole
officer received multiple photographs of Ivy attending a sports hall of fame
banquet in Evansville, Indiana. Ivy did not have permission to attend this banquet,
which is outside his designated county of residence and required him to leave the
state.
On April 11, 2019, the parole officer once again tried to call Ivy. An
individual who identified himself as Ivy’s friend answered the telephone. The
parole officer left a message with the friend for Ivy to report. Ivy did not return his
parole officer’s call. A parole violation warrant was issued on April 19, 2019.
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Ivy absconded for nearly six months until he was arrested in Indiana
in October of 2019 on charges of breaking and entering and providing false
information. Ivy was found guilty of providing false information. Once he was
released from an Indiana jail, Ivy was brought back to Kentucky for the parole
revocation proceedings.
Ivy was given notice of the initial probable cause hearing. Ivy waived
the probable cause hearing. A final revocation hearing was held on January 28,
2020, before Administrative Law Judge Kimberly A. Morris (“ALJ”). Ivy testified
on his behalf. Ivy admitted to leaving the state, gave mitigating testimony that he
needed to care for his adult daughter, and generally denied being non-compliant
with the terms of his parole. The ALJ determined by a preponderance of the
evidence that Ivy violated conditions of his parole. The ALJ then referred the
matter to the Parole Board for a final decision.
On April 9, 2020, the Parole Board rendered its final decision. The
Parole Board found Ivy violated the conditions of his parole by absconding. The
Parole Board additionally found Ivy’s failure to comply constituted a significant
risk to prior victims or the community at large and Ivy could not be appropriately
managed in the community. Ivy’s parole was revoked, with re-eligibility for
parole in twelve months. The Parole Board based its decision upon the ALJ’s
findings of fact, which were incorporated in its decision by reference.
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Ivy then filed this declaratory judgment action seeking relief directing
the Parole Board to vacate its prior decision to revoke and to reinstate Ivy’s parole.
Ivy and the Parole Board filed competing motions for summary judgment. The
circuit court granted the Parole Board’s motion for summary judgment. The circuit
court held Ivy was given due process during the revocation proceedings and that
the Parole Board did not abuse its discretion in revoking Ivy’s parole. This appeal
followed.
STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment is only proper when “it would be impossible for the
respondent to produce evidence at the trial warranting a judgment in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
In ruling on a motion for summary judgment, the Court is required to construe the
record “in a light most favorable to the party opposing the motion . . . and all
doubts are to be resolved in his favor.” Id.
Summary judgment consideration is to some extent qualified in the
context of a declaration of rights in cases like this because the decision is usually
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based upon an existing record to which additional evidence is not added. Smith v.
O’Dea, 939 S.W.2d 353 (Ky. App. 1997). Upon judicial review, courts defer to
agency fact-finding. Roach v. Kentucky Parole Board, 553 S.W.3d 791, 793 (Ky.
2018). A reviewing court may reverse and remand the Parole Board’s order as to
determinations of fact if it finds that the Parole Board’s final order is arbitrary,
capricious, or characterized by abuse of discretion. Id. Agency determinations of
law are reviewed de novo. Id.
ANALYSIS
Ivy raises two issues on appeal: (1) the circuit court erred by
concluding it was constitutionally permissible for the Parole Board to base its
revocation decision upon a final hearing conducted by an ALJ; and (2) the
evidence presented at the final hearing conducted by the ALJ did not the support
the findings that Ivy was a significant risk to previous victims or the community at
large and could not be appropriately managed in the community.
Ivy challenges the constitutionality of the Parole Board’s procedure
used to revoke his parole. As previously mentioned, the Parole Board based its
decision to revoke upon the ALJ’s findings of fact, which were incorporated in the
decision by reference. Ivy argues that constitutional and statutory authority
requires that the Parole Board, and not an ALJ, conduct final revocation hearings.
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For parole revocations, due process first requires a preliminary
hearing to determine probable cause that a violation occurred. Morrissey v.
Brewer, 408 U.S. 471, 485, 92 S. Ct. 2593, 2602, 33 L. Ed. 2d 484 (1972). If
probable cause is shown, a final revocation hearing takes place. Id. at 487-88, 92
S. Ct. at 2603-04. The court in Morrissey summarized the following minimum
requirements for a final hearing to satisfy due process.
(a) [W]ritten notice of the claimed violations of parole
[or probation];
(b) disclosure to the parolee [or probationer] of evidence
against him;
(c) opportunity to be heard in person and to present
witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation);
(e) a “neutral and detached” hearing body such as a
traditional parole board, members of which need not
be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole [or
probation].
Id. at 489, 92 S. Ct. at 2604. “[The final revocation] hearing must be the basis for
more than determining probable cause; it must lead to a final evaluation of any
contested relevant facts and consideration of whether the facts as determined
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warrant revocation.” Id. at 488, 92 S. Ct. at 2604. As Ivy waived his probable
cause hearing, he only challenges the constitutionality of his final hearing.
In Jones v. Bailey, 576 S.W.3d 128 (Ky. 2019), an offender’s parole
was revoked by the Parole Board for failure to complete a sex offender treatment
program. In Jones, an ALJ conducted the preliminary hearing and found probable
cause to believe the offender violated the conditions of his parole. Id. at 134. The
Parole Board then conducted the final hearing. Id. The offender was not allowed
to present new evidence or witnesses at the final hearing. Id. After the hearing,
the Parole Board revoked the offender’s parole. Id. However, the Parole Board
did not find by a preponderance of the evidence that the offender violated his
parole; instead, the Parole Board revoked his parole based solely upon its review of
the ALJ’s probable cause finding. Id.
The court in Jones found the offender did not receive the minimal due
process required by Morrissey when his parole was revoked solely upon a probable
cause finding. Jones, 576 S.W.3d at 143. Jones held the Parole Board is the body
charged with ultimately determining the findings of fact. Id. at 144. Jones ruled
any revocation of post-incarceration supervision requires the Parole Board to find
by a preponderance of the evidence that the offender is guilty of the alleged
violation. Id. at 145.
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Ivy argues that the standard set by Morrissey and Jones requires the
final hearing be conducted personally by the Parole Board. Neither case supports
this argument. Neither case prohibits the Parole Board from delegating fact
finding to an ALJ and then incorporating those findings of facts in its ultimate
decision. Morrissey foresaw the necessity of using hearing officers during the
revocation process. “The granting and revocation of parole are matters
traditionally handled by administrative officers.” See Morrissey, supra, at 486, 92
S. Ct. at 2603.
Jones implied that hearing officers could be used to conduct final
hearings: “Unless the Board has received new evidence or information submitted
in writing in advance of the final revocation hearing or a special hearing is held at
the Board’s discretion, and unless an exception is met, the Parole Board considers
only the evidence in the administrative record made before the ALJ to determine
what action should be taken[.]” Jones, supra, at 141. In other words, the Parole
Board is permitted to conduct its final hearing by relying on the record made by an
ALJ so long as the hearing before the ALJ is understood to be the final hearing.
The problem in Jones was the record was only related to a preliminary hearing to
determine probable cause. That problem is not presented when the ALJ conducts
the final hearing process before submission to the Parole Board.
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Further, there is also statutory authority for an ALJ to conduct final
hearings. Kentucky Revised Statute (“KRS”) 439.341 authorizes hearing officers
to conduct probable cause hearings, as well as any other duty assigned by the
board. Ivy argues KRS 439.440 mandates the Parole Board personally conduct
final hearings: “Any prisoner returned to state custody for violation of his or her
rerelease shall be heard by the board within sixty (60) days on the propriety of his
or her release.” This is not persuasive as the intent of KRS 439.440 is to set the
time in which a decision must be made and not who must conduct the final
hearing.
In the current case, Ivy received a final hearing that complied with the
requirements set forth in Morrissey and Jones. Ivy received written notice of the
claimed violations of parole. The evidence against Ivy was disclosed. Ivy
received the opportunity to be heard in person and to present witnesses and
evidence. Ivy had the right to confront and cross-examine adverse witnesses.
A “neutral and detached” hearing officer, the ALJ, conducted the
gathering of the evidence at the final hearing. The ALJ provided a written
statement (which the Parole Board incorporated in its final decision for reference)
as to the evidence relied on and reasons for revoking parole. In its final decision,
the Parole Board found, by a preponderance of the evidence, that Ivy violated a
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condition of his parole. There was nothing constitutionally deficient regarding
Ivy’s revocation proceedings.
Next, Ivy argues the evidence presented at the final hearing conducted
by the ALJ did not the support the findings that Ivy was a significant risk to his
previous victims or the community at large and could not be appropriately
managed in the community. Pursuant to KRS 439.3106, individuals under
supervision are subject to “[v]iolation revocation proceedings and possible
incarceration for failure to comply with the conditions of supervision when such
failure constitutes a significant risk to prior victims of the supervised individual or
the community at large, and cannot be appropriately managed in the community[.]”
KRS 439.3106 applies to Parole Board decisions. Murrell v. Kentucky Parole
Board, 531 S.W.3d 503 (Ky. App. 2017).
“The rule in Kentucky is that if there is substantial evidence in the
record to support an agency’s findings, the findings will be upheld, even though
there may be conflicting evidence in the record.” Kentucky Comm’n on Human
Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). The Parole Board noted its
consideration of KRS 439.3106 and made the statutorily required findings. In
addition, the Parole Board specifically referred to the findings made about Ivy’s
violations to support these findings. Murrell requires only “specific findings as it
relates to the facts in light of KRS 439.3106.” 531 S.W.3d at 507. The Parole
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Board referred to the numerous findings of the nature and number of Ivy’s
violations to support the findings required by KRS 439.3106.
At the final hearing, Ivy admitted to leaving his designated county and
the state without permission. Ivy committed a crime in another state. Ivy provided
an incorrect or outdated home address to his parole officer. The parole officer tried
and failed to reach Ivy several times. Ivy absconded for almost six months. There
was substantial evidence presented at the final hearing for the Parole Board to
reasonably find Ivy was a significant risk to his previous victims or the community
at large and could not be appropriately managed in the community. The circuit
court correctly determined the Parole Board did not abuse its discretion in revoking
Ivy’s parole.
CONCLUSION
The procedures used to revoke Ivy’s parole met minimum due process
standards. The Parole Board’s revocation of Ivy’s parole was supported by
substantial evidence. We affirm the Franklin Circuit Court’s Order granting the
Parole Board’s motion for summary judgment.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Katelyn E. Price Edward A. Baylous, II
Frankfort, Kentucky Frankfort, Kentucky
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