RENDERED: JANUARY 27, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1512-MR

DOUGLAS HODGE APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 21-CI-00814

KENTUCKY PAROLE BOARD APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: Douglas Hodge (hereinafter “Hodge”) appeals the Kenton 

Circuit Court’s affirmance of the Kentucky Parole Board’s revocation of his parole 

after finding he violated his parole by absconding. Having reviewed the record, 

the briefs of the parties, and the applicable law, we affirm the circuit court.
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FACTS

Hodge was convicted in 2012 of various non-violent offenses and was 

sentenced to serve a total term of twenty (20) years’ imprisonment.1 He was 

recommended for parole by the Kentucky Parole Board (hereinafter “the Board”) 

in February of 2020. 

In August of 2020, Hodge began having issues which affected his 

ability to remain compliant with the requirements of his release. Hodge had been

paroled to his father’s home upon his release from prison; his father was the victim 

in his underlying crimes of theft, which caused concern for his parole officer when 

he started having a difficult time living with his father. The parole officer

recommended that it would be best if Hodge found another place to reside, and he 

later reported to her that he had moved into his cousin’s apartment. 

On August 27, 2020, the parole officer attempted a home visit at this 

new address, but no one answered the door. The officer left a door tag directing 

Hodge to report to her office but later that day received a call from the resident of 

1 Hodge was convicted of two counts of Criminal Possession of a Forged Instrument in the 

Second degree; Theft by Deception over $500 but less than $10,000; Tampering with Physical 

Evidence; Theft by Unlawful Taking or Disposition over $500 but less than $10,000 by 

complicity; Operating a Motor Vehicle while under the Influence of Alcohol or Drugs, fourth or 

greater offense; and Possession of a Controlled Substance in the First degree, first offense.
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the apartment who told her that he did not know Hodge and he didn’t live at the 

address.

2

 

When Hodge called his parole officer later that day, he would not tell 

her where he was staying. The officer told him he must come to her office to 

report in person the next morning, but he said he would instead come to her office 

several days later. The parole officer obtained a parole violation warrant on 

August 31, 2020, due to Hodge’s refusal to inform her of his present residence, as 

is required. He thereafter failed to appear at her office several days later on the day 

when he had told her he would report. 

The warrant charged that Hodge had violated his parole by:

1. Absconding;

2. Failing to report change in home address to parole officer;

3. Leaving the state without permission of parole officer.

3

Following a preliminary hearing, the Administrative Law Judge 

determined that probable cause had been established that Hodge was in violation 

for absconding and failing to report the change in home address. A final 

2 Apparently, the tag was left on the door of apartment #1 and the cousin and Hodge lived in 

apartment #3. 

3 This allegation was based upon a conversation Hodge had with an employee of Recovery 

Works, an intensive outpatient addiction treatment provider. He indicated to the employee that 

he was in Ohio. The Recovery Works employee reported this to his parole officer. Additionally, 

the parole officer discovered through investigation that Hodge had used his father’s credit card, 

without his father’s permission, to buy a Greyhound bus ticket. 
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revocation hearing was held before a different Administrative Law Judge who 

determined a preponderance of the evidence supported the conclusion that Hodge 

had violated his parole only by absconding. The Board upheld this finding and 

concluded, based upon Hodge’s failure to inform his parole officer of his 

whereabouts, that he had absconded. The Board determined that Hodge was 

therefore not able to be managed on supervision and posed a significant risk to the 

community and deferred reconsideration of parole for twenty-four months. 

Hodge filed a petition for declaration of rights in Kenton Circuit 

Court. The Parole Board moved to dismiss the petition while Hodge moved for 

summary judgment. The Kenton Circuit Court granted the motion to dismiss, 

which Hodge hereby appeals. We affirm.

STANDARD OF REVIEW

When we are reviewing the dismissal or entry of summary judgment 

by a lower court on appeal from an administrative action, appellate review consists 

of a determination of whether the petition before the lower court raised specific, 

genuine issues of material fact sufficient to overcome the presumption of the 

propriety of the agency’s action. See Smith v. O’Dea, 939 S.W.2d 353, 356 (Ky. 

App. 1997).
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ANALYSIS

Hodge alleges that the procedures employed by the Parole Board in 

determining whether his parole should be revoked did not meet minimal due 

process standards. The circuit court held that the two-hearing process, followed by 

review of the decisions of the Administrative Law Judges by the full Board,

complied with the dictates of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 

33 L. Ed. 2d 484 (1972). We agree with the circuit court. 

Hodge complains that because the full Board relied upon the record 

developed by the Administrative Law Judges at the two hearings, and did not itself 

receive evidence or argument concerning the allegations, the procedure failed to 

provide him adequate due process. He complains he was not provided an 

opportunity to argue that revocation was not the appropriate result and was forced 

to argue against both the underlying allegations and the proper determination at 

once. He claims this is deficient to satisfy the dictates of procedural due process. 

We disagree. 

The first administrative hearing held in the matter met the dictates of 

Jones v. Bailey, 576 S.W.3d 128 (Ky. 2019). The first hearing is held only to 

determine if probable cause exists to proceed with the revocation. “This minimal 

inquiry is to determine if probable cause or reasonable grounds exist to believe that 

the offender did in fact commit the acts that constitute a violation, with the 
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probable cause determination being sufficient to hold the parolee for the Parole 

Board’s final revocation decision.” Id. at 137 (citing Morrissey, 408 U.S. at 485, 

487, 92 S. Ct. at 2602).

After a determination that probable cause has been established, a 

second, fuller hearing is held before the decision to revoke can be made. 

Tasked with deciding the minimum due process 

requirements and noting that writing a procedure code is 

the responsibility of each state, the Morrissey Court held 

that the final, fact-finding hearing must be held within a 

reasonable time after the offender is taken into custody, 

and then summarized the final hearing minimum 

requirements as including:

(a) written notice of the claimed violations of 

parole . . . ;

(b) disclosure to the parolee . . . 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[.]
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408 U.S. at 489, 92 S.Ct. 2593. 

Id. at 138.

Neither Morrissey nor Jones require that this second, final hearing be conducted 

before the Board; only that it be conducted with proper notice and procedures.4 

Hodge was notified in writing of the alleged violations found after the 

first hearing was held. The notification included a recitation of the proof against 

him, which was the testimony of the parole officer and the employee of Recovery 

Works. Hodge was provided an opportunity to provide evidence and did so. He

was also able to cross-examine the witnesses against him. The Administrative Law 

Judge was a neutral and detached hearing officer who provided written findings 

supporting his conclusion. This second hearing complied with the requirements of 

due process.

He argues that compliance with the dictates of Morrissey would 

require that the Board inform the parolee concerning their determination of 

4

“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, 576 S.W.3d at 141. 

“We have no thought to create an inflexible structure for parole revocation procedures. The few 

basic requirements set out above, which are applicable to future revocations of parole, should not 

impose a great burden on any State’s parole system. Control over the required proceedings by 

the hearing officers can assure that delaying tactics and other abuses sometimes present in the 

traditional adversary trial situation do not occur.” Morrissey, 408 U.S. at 490, 92 S. Ct. at 2604-

05.
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whether the allegations against him or her had been established in the record 

below, to support a finding of a violation before a hearing is held on the proper 

disposition given the violation. We disagree and find that so long as the 

procedures employed give the parolee adequate notice of the allegations against 

him, and an opportunity to respond thereto, adequate due process is provided. That 

hearing does not have to be before the full Board. And it is not improper for the 

Board to consider both the adequacy of proof of violation and proper disposition at 

the same hearing.

Hodge next alleges that there was insufficient evidence that he 

absconded from parole. As the circuit court observed, it is not the place of that 

court or this Court to substitute our judgment for the judgment of the Board. 

“This Court will not normally reverse the decisions of the Board absent a clear 

mistake in the law.” Murrell v. Kentucky Parole Board, 531 S.W.3d 503, 506 (Ky. 

App. 2017). The record established by substantial evidence that when directly 

asked by his parole officer where he was during the phone call, Hodge refused to 

provide his location. When ordered to report to the parole office, he refused and 

did not appear. We cannot say that the Board wrongfully held such amounted to 

absconding. 

Likewise, it is the Board’s place to determine the appropriate 

disposition once a finding of violation has been made. The Board determined that 
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due to his intractability Hodge could not be successfully managed in the 

community. We will not upset that determination.

CONCLUSION

The procedures utilized in revoking Hodge’s parole met minimal 

procedural due process standards and the Board’s determination was supported by 

substantial evidence. We affirm the Kenton Circuit Court’s order dismissing his 

petition for declaration of rights.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Phillip West

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Edward A. Baylous II

Frankfort, Kentucky