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Murrell v. Kentucky Parole Board

Court of Appeals of Kentucky

October 13, 2017

DURAND MURRELL APPELLANT
v.
KENTUCKY PAROLE BOARD; KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES

         APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP SHEPHERD, JUDGE ACTION NO. 14-CI-00840

          Timothy G. Arnold Frankfort, Kentucky

          Oran S. McFarlan, III, Brenn O. Combs Department of Corrections Frankfort, Kentucky

          BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JOHNSON, JUDGES.

          OPINION REVERSING

          JOHNSON, JUDGE:

          Durand Murrell appeals from a December 21, 2015 Opinion and Order of the Franklin Circuit Court denying his motions for Declaratory and Injunctive Relief and Summary Judgment and granting Appellee's Motion for Summary Judgment. After reviewing the record in conjunction with the applicable legal authorities, we REVERSE the order of the Franklin Circuit Court.

          BACKGROUND

         Murrell was incarcerated at the Northpoint Training Center in Burgin, Kentucky, with an anticipated release date of October 1, 2016. In 1993, Murrell pleaded guilty in Jefferson Circuit Court for a series of 16 armed robberies. In 1993, Murrell also pleaded guilty to an additional count of robbery first degree, [1]one count of assault third degree, [2] one count of escape first degree[3] and six counts of wanton endangerment second degree[4] arising out of his June 29, 1992 escape from the Jefferson County Corrections Facility.

         Murrell was sentenced to a total of 42 years for these crimes. In 1994, while serving his Kentucky prison sentence, Murrell was charged with and pleaded guilty to federal criminal charges of Bank Robbery, Aiding and Abetting, Use of a Firearm in a Crime of Violence, and Carjacking, receiving a federal prison sentence totaling 152 months. On September 14, 1994, the Department of Corrections received a detainer from the U.S. Marshall Service to secure custody of Murrell for lodging under his federal indictments upon his release from prison in Kentucky. On December 13, 2000, Murrell came before a panel of the Kentucky State Parole Board ("Board") for a parole hearing, after which the Board recommended Murrell's parole to the federal detainer hold. In addition, the Board also ordered that Murrell attend treatment programs for substance abuse and anger management.

         On March 31, 2011, the Department of Corrections was notified of Murrell's pending release from federal prison on or about June 7, 2011, to a halfway house, with March 6, 2012, as the projected date of release from federal custody. Murrell, however, remained in federal custody until approximately September 12, 2012, at which point upon his release from federal custody he began active supervision with the Kentucky Department of Corrections.

         On August 29, 2013, Murrell was again arrested and on August 30, 2013, he was charged with possession and trafficking in marijuana. Murrell, however, did not make any attempt to contact his parole officer until September 3, 2013, leaving a phone message stating that he "needed to talk about a situation that had occurred." On September 5, 2013, Murrell reported to his parole officer, Angelique McNary, and at that time notified her that he had been arrested for possession and trafficking in marijuana in August. On that date, after a discussion by Officer McNary with her supervisor, Murrell was taken into custody and served with a Notice of Preliminary Hearing charging him with violating the conditions of his parole by "(1) being in possession of marijuana on August 29, 2013, and (2) by failing to report his arrest of August 29, 2013, within the 72 hour requirement dictated by the terms of his parole."

         On September 19, 2013, a preliminary parole revocation hearing was held by an administrative law judge of the Board. At the hearing the law judge found that there was probable cause to believe that Murrell had violated the conditions of his parole as alleged and the matter was referred to the Board for a Final Parole Revocation Hearing.

         The Board scheduled Murrell's Final Parole Revocation Hearing on October 24, 2013. At that hearing Murrell admitted the alleged parole violations. The Board then found Murrell guilty of violating the conditions of his parole as charged and revoked his parole. In addition, the Board set a new eligibility date in his case for eighteen months, stating that Murrell needed to deal with the pending charges and get his anger issues taken care of so that he would be "in a much better place, different place, and a better candidate for parole . . . ." On July 7, 2014, Murrell filed a Writ of Mandamus in the Franklin Circuit Court ("court") appealing the Board's revocation of his parole. On July 24, 2014, Murrell filed a Motion to Convert the Writ of Mandamus to a Declaration of Rights, and on October 21, 2014, he filed his first Amended Complaint Seeking Declaratory and Injunctive Relief. On December 21, 2015, the court issued its Opinion and Order Denying his Motion for Declaratory and Injunctive Relief and Summary Judgment, and Granting the Board's Motion for Summary Judgment from which this appeal arises.

         STANDARD ...


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