Mark Cranmer v. Justice and Public Safety Cabinet ( 2022 )


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  •                     RENDERED: JANUARY 28, 2022; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2021-CA-0789-MR
    MARK CRANMER                                                         APPELLANT
    APPEAL FROM FRANKLIN CIRCUIT COURT
    v.              HONORABLE THOMAS D. WINGATE, JUDGE
    ACTION NO. 20-CI-00891
    JUSTICE AND PUBLIC SAFETY CABINET                                      APPELLEE
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
    THOMPSON, L., JUDGE: Mark Cranmer, pro se, appeals from an order of the
    Franklin Circuit Court dismissing his petition for a reconsideration of his parole
    eligibility. Appellant argues that the Kentucky Parole Board violated statutory law
    and the Kentucky Constitution when it denied his parole application. We find no
    error and affirm.
    FACTS AND PROCEDURAL HISTORY
    Appellant is currently an inmate at the Northpoint Training Center in
    Burgin, Kentucky. He is currently serving a ten-year sentence for various offenses.
    On September 1, 2020, Appellant went before the Kentucky Parole Board. The
    Board denied his application for parole and indicated he could seek parole again in
    twenty-four months. The Board indicated that it denied his parole for the
    following reasons: (1) seriousness of the crime; (2) prior felony convictions; (3)
    drugs or alcohol involvement; (4) assaultive behavior; (5) history of violating
    conditions of probation or parole; and (6) prior misdemeanor convictions.
    Appellant then filed for reconsideration of his parole. He claimed that
    the Board made an error by indicating he had a history of “assaultive behavior.”
    He argued that he was a nonviolent offender and had never been convicted of a
    violent offense. Appellant’s reconsideration was denied. A Board member stated
    the following in denying the reconsideration: “Mr. Cranmer contends the board
    erred in citing ‘History of Assaultive Behavior’ on his Parole Denied Order, thus
    requests reconsideration due to ‘procedural error.’ Mr. Cranmer was convicted of
    Sexual Abuse in 2001 which qualifies as assaultive behavior. No reconsideration.
    Decision Stands.”1
    1
    We note that Appellant pleaded guilty to second-degree sexual abuse in 2003, not 2001.
    -2-
    Appellant then sought judicial review of this decision. Appellant
    argued that the Board violated Kentucky Revised Statutes (KRS) 439.331 and KRS
    439.335. He also argued that by ignoring these two statutes, the Board violated the
    Kentucky Constitution. The trial court found no error, dismissed his petition, and
    this appeal followed.
    ANALYSIS
    “The parole-release decision . . . depends on an amalgam of elements,
    some of which are factual but many of which are purely subjective appraisals by
    the Board members based upon their experience with the difficult and sensitive
    task of evaluating the advisability of parole release.” Greenholtz v. Inmates of
    Nebraska Penal and Correctional Complex, 
    442 U.S. 1
    , 9-10, 
    99 S. Ct. 2100
    ,
    2105, 
    60 L. Ed. 2d 668
     (1979).
    Belcher v. Kentucky Parole Board, 
    917 S.W.2d 584
     (Ky.
    App. 1996), determined that all that was required in
    the parole review process when parole is denied is that
    the prisoner have the opportunity to be heard and that he
    be advised in general terms of the reason for the decision
    of the Board. The judicial standard of review of
    decisions of the Parole Board is limited to an
    examination of compliance with the terms of KRS
    439.250 to 439.560.
    Stewart v. Commonwealth, 
    153 S.W.3d 789
    , 791 (Ky. 2005).
    With the above standard of review in mind, we will now proceed to
    Appellant’s argument on appeal. Like he did at the trial court, Appellant argues
    -3-
    that the Board did not follow KRS 439.331 and KRS 439.335; therefore, he should
    get a new parole hearing. KRS 439.331 states:
    The department shall:
    (1) Administer a validated risk and needs assessment to
    assess the criminal risk factors of all inmates who are
    eligible for parole, or a reassessment of a previously
    administered risk and needs assessment, before the
    case is considered by the board;
    (2) Provide the results of the most recent risk and needs
    assessment to the board before an inmate appears
    before the board; and
    (3) Incorporate information from an inmate’s criminal
    risk and needs assessment into the development of his
    or her case plan.
    KRS 439.335 states in relevant part that “[i]n considering the granting of parole
    and the terms of parole, the parole board shall use the results from an inmate’s
    validated risk and needs assessment and any other scientific means for personality
    analysis that may hereafter be developed.”
    The trial court held that KRS 439.331 related to the Kentucky
    Department of Corrections and not the Board. We agree. The statute specifically
    relates to “the department.” In any event, there is no allegation that the Board did
    not have a validated risk assessment on Appellant.
    As for KRS 439.335, Appellant argues that the Board relied solely on
    a 2003 misdemeanor for denying his parole; therefore, the Board violated KRS
    -4-
    439.335 by not utilizing the risk assessment when determining parole eligibility.
    Appellant also argues that he has never been convicted of a violent offense as
    defined in KRS 439.3401; therefore, the claim that he has “assaultive behavior”
    was in error. We find no error here.
    KRS 439.3401 lists a number of violent offenses that limit parole
    eligibility under certain circumstances. Appellant is correct that second-degree
    sexual abuse is not among that list; however, the Board’s stating that Appellant has
    a history of assaultive behavior does not mean the Board was indicating he was a
    violent offender under KRS 439.3401. At the time of his conviction, second-
    degree sexual abuse was defined as:
    (1) A person is guilty of sexual abuse in the second
    degree when:
    (a) He subjects another person to sexual contact who is
    incapable of consent because he is mentally retarded;
    (b) He subjects another person who is less than fourteen
    (14) years old to sexual contact;
    (c) Being an employee, contractor, vendor, or volunteer
    of the Department of Corrections, or a detention
    facility as defined in KRS 520.010, or of an entity
    under contract with either the department or a
    detention facility for the custody, supervision,
    evaluation, or treatment of offenders, he subjects an
    offender who is incarcerated, supervised, evaluated, or
    treated by the Department of Corrections, the
    detention facility, or the contracting entity, to sexual
    contact. In any prosecution under this paragraph, the
    defendant may prove in exculpation that, at the time
    -5-
    he engaged in the conduct constituting the offense, he
    and the offender were married to each other; or
    (d) Being twenty-one (21) years old or more, he subjects
    another person to sexual contact who is less than
    eighteen (18) years old and for whom he provides a
    foster family home as defined in KRS 600.020.
    (2) Sexual abuse in the second degree is a Class A
    misdemeanor.
    KRS 510.120. It is unclear from the record before us which subsection Appellant
    was convicted under; however, any subsection could be deemed as “assaultive
    behavior” by the parole board.
    In addition, the Board did not violate KRS 439.335 by relying solely
    on the sexual abuse conviction when denying Appellant’s parole. The Board listed
    six factors it considered when denying his parole. Clearly the Board considered
    the risk assessment. The only reason the reconsideration of parole order focused
    on the “assaultive behavior” factor was because that was the only factor Appellant
    sought to be reconsidered. It is clear that the Board examined the risk assessment
    in this case.
    Furthermore, we note that KRS 439.330(1) states that the Board shall
    “(a) [s]tudy the case histories of persons eligible for parole, and deliberate on that
    record [and] (b) [c]onduct reviews and hearings on the desirability of granting
    parole[.]” The Board does not simply rely on the risk assessment in making its
    determination, but may consider other relevant evidence.
    -6-
    CONCLUSION
    Based on the foregoing, we affirm the trial court’s judgment in this
    case. The Board followed the applicable statutory requirements and we find no
    error. There was no violation of KRS 439.331, KRS 439.335, or the Kentucky
    Constitution.
    ALL CONCUR.
    BRIEF FOR APPELLANT:                     NO BRIEF FOR APPELLEE.
    Mark Cranmer, pro se
    Burgin, Kentucky
    -7-
    

Document Info

Docket Number: 2021 CA 000789

Filed Date: 1/27/2022

Precedential Status: Precedential

Modified Date: 2/4/2022