RENDERED: APRIL 22 , 2022; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2020

- CA

- 1495

- MR

LANCE CONN; MARK DEWITT; KELVIN ROBERSON; AND RALPH SHOLLER APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHIL L IP J. SHEPHERD , JUDGE ACTION NO. 13

- CI

- 01118

KENTUCKY PAROLE BOARD APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, DIXON , AND LAMBERT , JUDGES

. CETRULO , JUDGE: Four current Kentucky state inmates appeal the Franklin
Circuit Court’s order denying their motion for summary judgment that challenged the Kentucky Parole Board’s authority to issue a serve

- out on a life sentence. After careful review of the record, we affirm the Franklin C ircuit C ourt.- 2

- PRELIMINARY MATTER S First, the Commonwealth filed a Motion for Leave to File an Amicus Brief. In a separate order, this motion is granted.

Second, the Appellants filed a Motion to S trike the Amicus Brief of the Commonwealth of Kentucky for failure to comply with CR 1 76.12. In a separate order, this motion is denied.

FACTS AND PROCEDURAL BACKGROUND Kentucky state inmates Lance Conn, Mark Dewitt, Kelvin Roberson , and Ralph Sholler ( the “Appellants”) were given a life sentence , but were not found guilty of a charge that would qualify them for a sentence of life without parole (“LWOP”) . A ll four Appellants were given a serve

- out 2 on their life

sentence s by the Kentucky Parole Board (the “Board”)

.

The Appellants ’ brief describes the Appellants 3 as such : “Mr. Conn was an accomplice to a murder and robbery, who was served [

- ] out after the Board mistakenly believed he had a prior felony when he did not. Mr. Sholler and Mr.

1 Kentucky Rule of Civil Procedure

.
2 501 Kentucky Administrative Regulation (KAR) 1:030 , Section 1 (10) defines a “serve

- out” as

“ a decision of the b oard that an inmate shall serve until the completion of his sentence. ”

3 Appellants’ brief states that in lieu of certifying a class action, the parties agreed to an order, which state s in relevant part, “the parties agree that any relief granted will be afforded to all offenders who have been served [

- ] out on a life sentence.”- 3

-

Roberson were served [

- ] out on life sentences imposed for non

- homicide offenses. Mr. Dewitt was convicted of a single count of murder in 1980 and a low

- risk inmate who had been successfully classified down to a community custody level
when he was served [

- ] out on his life sentence.” T he record 4 provides further conviction and parole information

.

Ralph Sholler #124166 is an inmate at the Kentucky State Reform atory. In 1996 he was convicted of Robbery in the First Degree, Burglary in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and being a Persistent Felony Offender, and sentenced to life imprisonment. He was originally considered b y the Parole Board on October 8, 2007 and given a serve out.

. . . . Kelvin Roberson #080523 is an inmate at the Kentucky State Penitentiary who has been serving a life sentence for Rape and other offenses since 1984. He was first seen by the Board fo r this offense in 1992, and given a 12 year deferment. [ 5 ] He was again seen in 2004, and given a 10 year deferment. Then, on June 23, 2014, Mr. Roberson was again seen by the Board and given a serve out on his life sentence. His request for reconsideration was denied on August 13, 2014.
Lance Conn #122297 i s an inmate at Little Sandy Correctional Complex, who has been serving a life sentence for murder and robbery since 1996. He has never been paroled, and was given a 96 month deferment

4 New First Amended Complaint Seeking Declaratory and Injunctive Relief at 9

- 11 , No. 13

- CI

01118, Franklin Circuit Court, filed January 20, 2015.

5 501 KAR 1:030 , Section 1 (2) defines a deferment as “a decision by the [B]oard that an inmate shall serve a specific number of months before further parole consideration.”- 4

- in 2006. On June 23, 2014 he was again considered for parole. Despite being considered “Low Risk” . . . he was given a serve out on his life sentence. Mark DeWitt #084100 is an inmate at the Kentucky State Reformatory, who has been serving a life sentence for murder and wanton endangerment since 1980. He has never been paroled, and instead been given deferments of 48, 48, 144 and 96 months. At a time when such programs were authorized, he successfully completed furloughs and time in a hal f way house, but was never released from custody. He has completed numerous program s at the institution, and has one write [

- ] up

– for smoking

– in the last 10 years. He was considered for parole on June 23, 2014. Despite scoring “Low Risk” . . . and otherwise being an evidently strong candidate for parole, he was given a serve out on h is life sentence. This action originally began in 2013 in Franklin Circuit Court when
19 inmate P laintiffs alleg ed that the Board was not complying with the Public Safety and Offender Accountability Act, 6 commonly referred to as House Bill 463 (“HB 463”)

. The matter and the parties have evolved over the years, but a s related to this appeal, in June 2019 the Appellants filed a motion for summary judgment challenging the Board’s authority to order a serve

- o ut for those serving a life

sentence. Appellants request ed reinstatement of their parole eligibility

. In October 2020, the circuit court denied the motion . The circuit court stated that the Board
does have authority to grant a serve

- out on a life sentence. This appeal resulted.

6 2011 Ky. Laws ch. 2 (HB 463) (eff. Mar. 3, 2011)

.- 5

- STANDARD OF REVIEW Summary judgment is only appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of
la w. CR 56.03. In general, denial of a motion for summary judgment is not appealable because of its interlocutory nature, but the case sub judice falls under an established exception. A bbott v. Chesley , 413 S.W.3d 589, 602 (Ky. 2013) (citation omitted). “ [ A ] ppellate review [of a denial of a summary judgment
motion ] is proper if (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom.” Id . ( i nternal quotation marks and
citations omitted). Our review of the record establishes that these elements have been met, and the only matter on appeal is whether the circuit court correctly found
that the Board did not exceed its authority by authorizing serve
- out s on the Appellants. As this issue is purely a matter of law, we review de novo

. 3D Enterprises Contracting Corp. v. Louisville & Jefferson C ount y Metro. S ewer
Dist

. , 174 S.W.3d 440, 445 (Ky. 2005) (citation omitted)

. As such , we afford no deference to the trial court’s application of the law. Brady v. Com monwealth , 396 S.W.3d 315, 317 (Ky. App. 2013) (citation omitted).- 6

- ANALYSIS Appellants aptly point out that the Legislature sets the state’s sentencing guidelines. “ Determining what should be a crime and setting punishments for such crimes is a legislative function.” Phon v. Com monwealth , 545 S.W.3d 284, 303 (Ky. 2018 ). After the L egislat ure set those parameters, then

t he J udiciary determines guilt and selects or implements a sentence within that
l egislative range. Id

. ( citing Jones v. Com monwealth , 319 S.W.3d 295, 299 (Ky. 2010) )

. Any “ sentence imposed beyond the limitations of the [L] egislature as statutorily imposed is unlawful and void. ” Id. at 304. W e agree with the Appellants that the E xecutive B ranch (here, the Board) has no independent authority to determine sentencing guidelines . The Board can only “set[] the conditions of release, as well as the terms of supervision, after a prisoner has been sentenced by the court and has begun serving his o r her sentence.” Jones , 319
S.W.3d at 298. See also KRS 7 439.340. A ppellants argue that by giving a serve

out, the Board is essentially changing a life sentence to a LWOP sentence, which (1) exceeds the power given to them by statute and (2) violates the separation of powers doctrine.

7 Kentucky Revised Statute.- 7

- A. Statutory Authority Appellants argue that the L egislature never authorized LWOP for offenses lacking an aggravating factor. KRS 532.025 (3) provides that the jury must designate in writing the aggravating circumstance or circumstances for sentences recommending death, LWOP , and life without probation o r parole for 25
years
. Here, t he Appellants’ sentences include no such aggravating factor. B ut , the Legislature did grant the Board broad discretion in its duties. KRS 439.340.
Included in that discretion is the authorization to grant a deferment, or conversely,

a serve
- out. (14) If the parole board does not grant parole to a

prisoner, the maximum deferment for a prisoner convicted of a non
- violent, non

- sexual Class C or Class D felony shall be twenty

- four (24) months. For all other prisoners who are eligible for parole: (a) No parole deferment greater than five (5) years shall be ordered unless approved by a majority vote of the full bo ard; and (b) No deferment shall exceed ten (10) years, except for life sentences

. KRS 439.340(14) ( e mphasis added).

The Kentucky Supreme Court has long held that the “fundamental rule of statutory construction is to determine the intent of the [L] egislature [

. ] ”
Beach v. Com monwealth , 927 S.W.2d 826, 828 (Ky. 1996).- 8

- In interpreting a statute , we have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion. As such, we must look first to the plain language of a statute and, if the language is clear, our inquiry ends. We hold fast to the rule of construction that the plain meaning of the statutory language is presumed to be what the [L] egislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source. In other words, we assum e that the Legislature meant exactly what it said, and said exactly what it meant.
Jones v. Com monwealth , 636 S.W.3d 503 , 505

- 06 (Ky. 2021) (citation omitted)

.

Looking at the language of the statute, we are bound by its plain meaning : “ No deferment shall exceed ten (10) years, except for life sentences .” KRS 439.340(14) (b) (emphasis added). Thus, for life sentences, the statute does allow for deferments longer than 10 years

. We cannot infer language not present
in the statute ; the statu t e does not require a deferment be granted for life sentences

. As is often repeated in these matters, parole is not a right but a privilege. Stewart
v. Com monwealth , 153 S.W.3d 789, 793 (Ky. 2005) ( citing Com monwealth v. Polsgro ve , 231 Ky. 750, 754, 22 S.W.2d 126, 128 (1929) )

. Consequently, the
L egislature has not prohibited the Board from authorizing a serve
- out for life

sentences.
B. Separation of Powers

Appellants argue that Kentucky is a strict adherent to the separation of powers doctrine. Diemer v. Com monwealth , 786 S.W.2d 861, 864 (Ky. 1990). To- 9

-

this, we agree. Appellants also contend that by granting a serve

- out, the Board is imposing on those powers granted to the Judiciary. To this, we do not agree.

Appellants point to a U nited S tates Supreme Court case that clarifies that a sentence of life is constitutionally and legally distinct from LWOP , citing
Graham v. Florida , 560 U.S. 48, 69

- 70 , 130 S. Ct. 2011, 2027

- 28, 176 L. Ed. 2d
825 (2010). Appellants discuss McClanahan v. Com monwealth , 308 S.W.3d 694 (Ky. 2010), to support th eir proposition that by granting a serve

- out the Board is encroaching on legislative powers

. (In McClanahan , the Appellant inmate entered into a plea agreement that delivered a sentence beyond the maximum legal punishment allowable under the circumstances of the case. The Kentucky Supreme Court found that “ [a] sentence that lies outside the statutory limits is an illegal sentence, and the imposition of an illegal sentence is inherently an abuse of
discretion. ” Id. at 701. Accordingly, the Court reversed and remanded finding that the plea agreement should have been rejected. Id . at 70 4

. ) Appellants argue that
the McClanahan Court limited the power of the Board and “made it clear that where a court attempts to impose a se ntence outside the statutory range, that sentence is void, regardless of circumstance [,] ” citing to McClanahan , 308 S.W.3d
at 701

. But, McClanahan is distinguishable from the case sub judice because it
dealt with a sentence at the judicial level ( i.e. , sentence imposed by a jury, judge , or plea deal) that exceeded the clear guidelines established by the statute. Here,- 10

-

there is no violation of statute and we are not willing to take the leap to imply one exists from the current language of KRS 439.340.

Our conclusion is supported by Simmons v. Com monwealth , 232 S.W.3d 531 (Ky. App

. 2007) , current Kentucky precedent. This Court in Simmons
stated “[i]t is well

- recognized in Kentucky that the power to grant parole is purely

an executive function.” Id. at 535 (citation omitted) . Further, the Court held that ordering a serve

- out was within the Board’s discretionary powers and by doing so the Board does not “invade[] the functions reserved for the judicial or legislative
branches of government.” Id.

However, we are cognizant of the evolution of this conversation since

our opinion in Simmons in 2007

. In 2011, with the adoption of HB 463, the Kentucky General Assembly adopted several new statutes with the goal of “[ f ] ocusing on rehabilitation rather than incarceration [

. ]” Helms v.
Co m monwealth , 475 S.W.3d 637, 641 (Ky. App. 2015). HB 463 established that

t he primary objective of sentencing is to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving
outcomes for those offenders who a re sentenced. KRS 532.007. A dditionally, the
Board itself has muddied the waters by shifting policy 8 more than once since

8 In May 2021, the Board issued a policy change , stating that serve
- outs will not be authorized on an inmate’s first appearance before the Board. V ICTOR P UENTE , Policy Change C ould A llow S ome C onvicted M

urder er s I n Ky. T o G et N ew Chance A t P arole , WKYT (May 18, 2021) ,- 11

-

Simmons ( and changing when a serve

- out may or may not be authorized )

. Also , Appellants cite to post

- Simmons cases that challenge the “continued validity of
Simmons .” Appellants argue McClanahan , Graham , and Phon , supra , imply that
the Board “does not have unfettered authority to grant or deny parole.” We agree that these cases do not give the Board unrestricted authority, but neither do these

cases overturn Simmons n or create a deferment mandate for life sentences.

W e find Simmons to still be the law of the Commonwealth. We agree
with the circuit court that “the Simmons case has not been distinguished in any meaningful way, and thus the Board still retains the power to serve [

- ] out a parole

eligible life sentence. Unless Simmons is overruled, this Court is bound by its holding.”
CONCLUSION

For the foregoing reasons, w e AFFIRM the Franklin Circuit Court.

ALL CONCUR

.

https:// www.wkyt.com/ 2021/05/18/policy

- change

- could

- allow

- some
- convicted

- murderers

- in

ky

- to

- get

- new
- chance

- at

- parole

. Just a few months later, after a leadership change, the Board rescinded that directive. T OM K ENNY , Kentucky Parole Board Re scinds P olicy G ranting N ew H earing s T o I nmates S entenced T

o L ife , WTVQ (Jul

. 1, 2021) , https://www.wtvq.com/kentucky

parole

- board

- rescinds

- policy

- granting

- new
- hearings

- to

- inmates

- sentenced

- to

- life

.- 12

-

BRIEF S FOR APPELLANT S : Timothy G. Arnold Andrea Reed Frankfort, K entucky BRIEF FOR APPELLEE: Angela T. Dunham Amy V. Barker Frankfort, K entucky

BRIEF FOR AMICUS CURIAE COMMONWEALTH OF KENTUCKY : Daniel Cameron Attorney General of Kentucky Barry L. Dunn Deputy Attorney General
Matthew F. Kuhn Solicitor General
Brett R. Nolan Principal Deputy Solicitor General Jeffrey A. Cross Deputy Solicitor General Frankfort, K entucky