Request By:
Mr. Joe Nagle
Commonwealth's Attorney
P.O. Box 398
Middlesboro, Kentucky 40965
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether or not [Illegible Word] judge may grant parole to a misdemeanant sentenced to a jail term in his court?
When OAG 78-150 was written, KRS 439.177 vested the parole function solely in the district judge of the sentencing court. However, in the 1978 regular session (Ch. 200, § 9), the statute was changed to simply vest the parole function in the "sentencing court." The 1982 amendment made no change in connection with "any misdemeanant" petitioning the "sentencing court" for parole privileges.
We pointed out in OAG 78-150 that Peck v. Conder, Ky., 540 S.W.2d 10 (1976) 12, is dispositive of your question. There the court wrote that "When a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished. What then happens to the prisoner is entirely in the bailiwick of the executive branch of government, and is no business of the courts, including the trial court." The court, in approving of the then county judge's role in granting parole, held that the county judge in granting parole acts in an executive capacity, not a judicial capacity.
It is still our opinion that the executive power of parole cannot be conferred upon judges of the court of justice. The statute, KRS 439.177, as last amended in 1982, provides that the sentencing court may parole a misdemeanant. Thus the statute is unconstitutional. The earlier case of Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928) 1105, held that an Act attempting to confer upon circuit judges the authority to parole convicted prisoners violated §§ 27 and 28 of the Kentucky Constitution. Also, Com. v. Cornelius, Ky., App., 606 S.W.2d 172 (1980), held specifically that the power to grant parole is vested exclusively in the executive branch of our government, and that KRS 439.177, which authorizes judges of the court of justice to exercise such power, violates §§ 27 and 28, and 77 of our constitution and is void.
At this point, it is helpful to consider precisely just what "parole" is. A parole is simply a conditional suspension of the sentence. "A parole does not vacate the sentence imposed, but merely suspends the execution of the penalty, and temporarily releases the convict from imprisonment on conditions which he is at liberty to accept or reject. Although the prisoner is conditionally released, the sentence is not set aside, nor is the offense expiated." Wooden v. Goheen, Ky., 255 S.W.2d 1000 (1953). Thus a parole relates to a defendant convicted, sentenced and detained in a prison or jail. See Peck v. Conder, Ky., 540 S.W.2d 10 (1976). A parole is not a modification of the sentence. The only provision known to our law for modification of a sentence is the power conferred on the governor by § 77 of the Kentucky Constitution to commute, reprieve, or pardon.
KRS 439.267 provides that any district or circuit court, with respect to a defendant convicted in circuit court of a misdemeanor, may, upon motion of the defendant made not earlier than thirty (30) days after the defendant has been delivered to the keeper of the institution to which he is sentenced, suspend the further execution of the sentence and place the defendant on probation upon such terms as the court determines. This is called shock probation.
However, a similar statute of shock probation, KRS 439.265, was upheld in Commonwealth v. Williamson, Ky., 492 S.W.2d 874 (1973), as being constitutional. The court said that the statute reasonably established a period, not unreasonably long, during which the court retains a limited control over its judgments in criminal cases. The statute says in effect, the court said, that until the expiration of the period allowed for probating the sentence, it is not final as regards commitment. Thus the court approved the concept of a 30 to 60 day observation period to be served before the sentencing court is required to reach a final decision on probation.
The key distinction between parole and shock probation is that in the parole situation, the court has lost statutory control over its judgment imposing a criminal sentence. But in the shock probation situation, the legislature, with sanction of the appellate courts, through the above decisions, has given the sentencing court a definite time limit within which the court may probate. In that way the court's statutory power of control over its judgment is delayed for the statutory period laid out. In dramatic contrast, KRS 439.177 (parole) contains no such extension of court control over its judgments. Any misdemeanant may petition the court for parole at any time.
CONCLUSION
Under KRS 439.177, as amended in 1982, the circuit judge may grant parole to a misdemeanant if the circuit judge sentenced the prisoner. However, under the appellate holdings above referred to, we conclude that the statute which permits the sentencing court to grant parole, is unconstitutional, inoperative, and void.