Charlie Dorris v. Kentucky Department of Corrections ( 2021 )

RENDERED: MARCH 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1223-MR
CHARLIE DORRIS APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00295
KENTUCKY DEPARTMENT OF
CORRECTIONS AND WENDY
WALROD APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JONES, JUDGE: Charlie Dorris, pro se, appeals from the Franklin Circuit Court’s
order dismissing his petition for a writ of mandamus, entered July 8, 2019. We
affirm the circuit court’s order.
BACKGROUND
Dorris is an inmate currently serving five consecutive five-year
sentences, totaling twenty-five years, with the Kentucky Department of
Corrections (the DOC). In June 2005, Dorris was convicted on a charge of flagrant
non-support and sentenced to five-years’ probation (Butler Circuit Case No. 03-
CR-00144). In January 2006, Dorris was convicted on a charge of receiving stolen
property and sentenced to another five-years’ probation (Butler Circuit Case No.
04-CR-00115).
While on probation for the Butler Circuit Court cases, Dorris was
charged and convicted in 2007 for three separate and additional felony offenses in
Ohio Circuit Court (Case Nos. 07-CR-00058, 07-CR-00112, and 07-CR-00113).
Dorris was sentenced to a prison term of five years for each of the Ohio Circuit
Court cases, and the court ordered these to be served consecutively with each
other, for a total of fifteen-years’ imprisonment. Finally, on October 18, 2007, the
Butler Circuit Court revoked Dorris’s probation in Case Nos. 03-CR-00144 and
04-CR-00115. Based on KRS1 533.060(2), those probated five-year terms were
ordered to run consecutively as well, resulting in a total sentence of twenty-five
years.
At some point prior to September 8, 2017, Dorris apparently sent a
letter to the central office of the DOC at the Justice and Public Safety Cabinet.
Dorris’s letter is not included in the record. However, the record contains the
response to Dorris’s letter from appellee Wendy Walrod, an Offender Information
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Kentucky Revised Statutes.
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Administrator employed by the DOC’s central office. She addressed Dorris’s
question about whether his sentences should have been run concurrently or
consecutively. In the context of Walrod’s letter, Dorris’s apparent concern was
that the DOC had “made the decision to alter the final judgments of [his] cases
when each case was reviewed to be run concurrently or consecutively with the
previous cases.” (Record (R.) at 16.) Walrod stated that, by operation of KRS
533.060, all of Dorris’s sentences would run consecutively. After addressing
several other matters, Walrod concluded, “You have exhausted all administrative
remedies available to you.” (R. at 17.)
On April 13, 2018, Dorris filed a petition for writ of mandamus with
the Franklin Circuit Court. Dorris asserted the DOC should be compelled to
calculate his sentence at fifteen years rather than twenty-five, arguing the DOC
failed to timely revoke his probation under KRS 533.040(3). That statute requires
revocation “within ninety (90) days after the grounds for revocation come to the
attention of the Department of Corrections[.]” Dorris claimed the Commonwealth
and the DOC knew he had committed his last series of offenses on May 10, 2007,
the date of his arrest, or at the latest on July 2, 2007, the date of his indictment.
Viewed either way, Dorris argued his October 2007 revocation fell outside the
ninety-day time limit. As a result, Dorris claimed the revocation time for violating
his probation should be run concurrently with his fifteen-year Ohio Circuit Court
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charges. Although Dorris asserted he exhausted all administrative remedies
available to him, and he attached the Walrod letter as proof, he failed to attach his
own letter to the DOC documenting his administrative exhaustion efforts.
On May 23, 2018, the DOC filed its answer and moved to dismiss
Dorris’s petition. In its memorandum supporting dismissal, the DOC argued that
Dorris’s letter to Walrod, an employee of the central office’s Offender Information
Services branch, did not comply with CPP2 17.4, which requires the inmate to first
“direct his request to the Offender Information Services office at the institution
where he is presently confined.” (R. at 71 (emphasis omitted).) Furthermore, the
DOC argued there is no evidence Dorris’s letter raised the same issues in his letter
as those stated in his petition to the court. The DOC pointed out how the petition
addressed KRS 533.040(3), but the Walrod letter only considered the impact of
KRS 533.060 on consecutive sentencing. Finally, the DOC asserted that Dorris’s
petition failed on the merits, citing Brewer v. Commonwealth, 922 S.W.2d 380(Ky. 1996). On July 8, 2019, the Franklin Circuit Court granted the DOC’s motion
to dismiss. This appeal followed.
ANALYSIS
In his appeal, Dorris argues consecutive sentencing under KRS
533.060 should not apply to him because the DOC failed to timely revoke his
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Kentucky Department of Corrections Policies and Procedures.
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probation under KRS 533.040(3). The Franklin Circuit Court dismissed Dorris’s
petition on two grounds, first stating that Dorris had failed to demonstrate
exhaustion of his administrative remedies, and second that Dorris’s claim fails on
the merits as a result of the Kentucky Supreme Court’s ruling in Brewer v.
Commonwealth, 922 S.W.2d 380 (Ky. 1996). We agree with both reasons and
affirm the circuit court’s dismissal.
First, the circuit court correctly found that Dorris’s case required
dismissal because he failed to prove exhaustion of administrative remedies. In
KRS 454.415(1), the General Assembly provided the following:
No action shall be brought by or on behalf of an inmate,
with respect to . . . [a] conditions-of-confinement issue[]
until administrative remedies as set forth in the policies
and procedures of the Department of Corrections, county
jail, or other local or regional correctional facility are
exhausted.
The statute also uses mandatory language requiring an inmate to attach documents
showing exhaustion of administrative remedies and requiring the court to dismiss a
complaint if an inmate fails to exhaust administrative remedies. KRS 454.415(3)-
(4).
Dorris apparently believed the Walrod letter, which stated he had
exhausted administrative remedies, was sufficient to satisfy his obligations under
the statute. However, even if the Walrod letter showed that Dorris had achieved
administrative exhaustion as far as the DOC was concerned, for purposes of KRS
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454.415(1), it did not relieve Dorris of his obligation to fully document and verify
his efforts for the circuit court under KRS 454.415(3). Proper documentation of
administrative exhaustion shows an inmate has raised arguments to the circuit
court which are identical to those raised before the warden and the DOC; see
Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky. App. 2006). An inmate’s failure to
document administrative exhaustion prevents meaningful judicial review. Id.Here, the circuit court correctly found the Walrod letter discusses KRS 533.060
and makes no mention whatsoever of KRS 533.040. As a result, the circuit court
found Dorris did not raise issues in his petition identical to those made before the
DOC. The circuit court did not err in dismissing this case under KRS 454.415.
Second, even if one were to consider Dorris’s case on the merits, the
circuit court correctly found it could not succeed:
[T]he Kentucky Supreme Court addressed the apparent
inconsistencies between KRS 533.040(3) and KRS
533.060 in Brewer v. Commonwealth and established that
sentences from probation revocation must run
consecutive to all sentences regardless of whether the
revocation occurred after the ninety (90) day period set
forth in KRS 533.040. Brewer v. Commonwealth, 922
S.W.2d [380], 382 (Ky. 1996).
(R. at 103.) We agree with the circuit court and conclude Dorris’s argument
regarding the effect of KRS 533.040(3) on his felony sentences is not consistent
with Brewer. When an individual on probation or parole commits a felony offense,
KRS 533.060’s imposition of “stiff penalties in the form of consecutive sentences”
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supersedes KRS 533.040(3). Brewer, 922 S.W.2d at 382. However, “the
provisions of KRS 533.040(3) would still apply in cases where the parolee or
probationer commits a misdemeanor or violates a condition of parole or probation
which does not constitute a felony.” Id.
CONCLUSION
For the foregoing reasons, we affirm the Franklin Circuit Court’s
order dismissing Dorris’s petition.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Charlie Dorris, pro se Allison R. Brown
Sandy Hook, Kentucky Department of Corrections
Frankfort, Kentucky
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