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Bailey v. Jones

Court of Appeals of Kentucky

March 31, 2017



          BRIEF FOR APPELLANT: David Bailey, pro se Burgin, Kentucky

          BRIEF FOR APPELLEE: Angela T. Dunham Frankfort, Kentucky



          DIXON, JUDGE:

          David 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[1] 31.110(2)(a), we reverse and remand.


         Bailey 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, [2] 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.

         The 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.[3] 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.


         Bailey 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;[4] 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.[5] "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)).

         Bailey 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.

         The 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.

         Moreover, 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.

         In 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.

         Pursuant 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).

         If the 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).

         Under 501 KAR 1:070 § 1(11), offenders are currently required to be provided with counsel during ...

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