FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 15-CI-00477
FOR APPELLANT: David Bailey, pro se Burgin, Kentucky
FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky
BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES.
OPINION REVERSING AND REMANDING
Wayne Bailey (Bailey) brings this pro se appeal of
an order of the Franklin Circuit Court dismissing his appeal
from a post-incarceration supervision revocation hearing. He
argues that he was entitled to counsel at his final hearing.
Because we determine that Bailey was indeed entitled to
counsel under KRS 31.110(2)(a), we
reverse and remand.
was convicted of sexual abuse in the first degree and
sentenced to five years' imprisonment. He was released
from custody but remained subject to post-incarceration
supervision,  in connection
with the Sex Offender Treatment Program (SOTP). He enrolled
in SOTP but became "sarcastic and combative"
during a group session. Two employees of SOTP determined that
Bailey was not sufficiently taking responsibility for his
actions, and they dismissed him from the program. Bailey, by
contrast, argues that he was terminated because one employee
of SOTP disagreed with his views on abortion, which he had
provided during the group session.
Parole Board then revoked Bailey's post-incarceration
supervision due to his failure to complete SOTP. Though
Bailey admits that he had counsel during his preliminary
revocation hearing, he stated that he was not provided with
counsel during his final revocation hearing. His administrative request for
reconsideration was denied. He then filed this action in the
Franklin Circuit Court. The circuit court dismissed
Bailey's action, finding that Bailey's due process
rights had not been violated. This appeal follows.
made five arguments before the circuit court: 1) he was
denied counsel at his final revocation hearing; 2) he was not
permitted to provide mitigating factors at his revocation
hearing; 3) the parole board abused its discretion when it
denied his release; 4) testimony concerning his state of mind
presented at the hearing was not authenticated; and 5) he was denied his right to call
witnesses at his final revocation hearing. To the extent that
Bailey has made any other arguments to this Court that were
not raised below, we decline to address them. "It is an
unvarying rule that a question not raised or adjudicated in
the court below cannot be considered when raised for the
first time in this court." Fischer v. Fischer,
348 S.W.3d 582, 588 (Ky. 2011) (internal citation omitted).
"[E]rrors to be considered for appellate review must be
precisely preserved and identified in the lower court."
Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986).
Furthermore, it appears that Bailey failed to make any
argument to the circuit court regarding a First Amendment
retaliation claim, and we decline to address those arguments
now. "Proceeding pro se
does not provide one with 'a license not to comply with
relevant rules of procedural and substantive law.'"
Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App.
2013) (quoting Faretta v. California, 422 U.S. 806,
835 n. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)).
concedes that he was provided counsel during his preliminary
post-incarceration supervision revocation hearing. He argues,
however, that he should also have been provided counsel
during his final revocation hearing. Preliminarily, we deem
it necessary to engage in some discussion of regulations
concerning preliminary and final revocation hearings for
post-incarceration supervision for sex offenders.
United States Supreme Court has held in G agnon v. Scarpelli,
411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656
(1973), that a parolee accused of having violated his parole
agreement is entitled
to two hearings, one a preliminary hearing at the time of his
arrest and detention to determine whether there is probable
cause to believe that he has committed a violation of his
parole, and the other a somewhat more comprehensive hearing
prior to the making of the final revocation decision.
according to the United States Supreme Court in Morrissey v.
Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d
484 (1972), the final hearing must include:
(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, . . . and (f) a
written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.
addition, Gagnon makes clear that the parolee has
the right to be represented by counsel if the case involves
significant issues of either guilt or mitigation.
Id., 411 U.S. at 790, 93 S.Ct. at 1764.
to the guidelines in Gagnon, Kentucky Administrative
Regulations (KAR) regarding post-incarceration supervision
revocation hearings for sexual offenders require a two-step
process. The preliminary post-incarceration supervision
revocation hearings for sexual offenders are conducted before
an administrative law judge (ALJ). 501 KAR 1:070 § 1(5).
At the preliminary hearing, "the offender shall present
all evidence the offender desires to make part of the
administrative record." 501 KAR 1:070 § 1(4)(c).
Witnesses at that hearing also may give testimony, but must
do so under oath and should be available for
cross-examination, unless there is good cause to prevent it.
501 KAR 1:070 § 1(5)(b). "The probation and parole
officer shall present evidence first and the offender shall
be given the opportunity to present evidence in defense or
mitigation." 501 KAR 1:070 § 1(5)(e). After the
preliminary hearing, the ALJ must make a determination as to
whether probable cause exists to believe the offender
committed a violation of his post-incarceration supervision.
501 KAR 1:070 § 1(6).
ALJ determines that probable cause exists, the Parole Board
issues a warrant to bring the offender before the board for a
final hearing. 501 KAR 1:070 § 2(1)(a). At the final
revocation hearing, "[t]he Parole Board shall determine
what action should be taken concerning the revocation of sex
offender postincarceration supervision and return of the
offender as a sex offender postincarceration supervision
violator." 501 KAR 1:070 § 3(1). The board may
consider new evidence submitted by the defendant if it is
given in writing and in advance of the final revocation
hearing, or at a special hearing if the defendant so
requests. 501 KAR 1:070 § 3(3).
501 KAR 1:070 § 1(11), offenders are currently required
to be provided with counsel during ...