Peck v. Conder

PALMORE, Justice. This is an appeal from an order of the Nelson Circuit Court entered in a habeas corpus proceeding denying the appellant’s application for a release from the Nelson County jail. It appears from the record before us that on January 16,1976, Roger Peck, the appellant, was convicted by the Nelson Circuit Court of stealing cattle (KRS 514.030) and was sentenced to six months in jail. On May 12, 1976, the county judge of Nelson County entered an order granting parole to — 11 — Peck for the remainder of his sentence, “on the following terms and conditions: “a. Shall report at least once a month to James Graham, the Probation and Parole officer, until July 16, 1976. “b. Shall not be convicted of any crime or engage in any criminal activity during that period of time.” Several days following his release from jail pursuant to the order of the county judge the Nelson Circuit Court entered an order directing the rearrest of Peck and declaring the order of the county judge null and void. On the same day the Nelson Circuit Court issued a writ of prohibition against the county judge declaring KRS 439.177 invalid because it “fails to set out any standard for determining whether a defendant should be paroled,” etc. This habeas corpus proceeding followed. KRS 439.177 and 439.179, which pertain to the release of persons confined in jail, were enacted after this court had held invalid a previous statute authorizing parole of such prisoners for the reason that it provided no means of implementation. See Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), in which it was observed that an unconditional grant of parole amounts to a pardon, thus violating Const. § 77. The current statute, KRS 439.177, remedies this particular deficiency and places all such parolees under supervision of the state correctional authorities and subjects them to its rules and regulations. This status continues until the parolee is recommitted to jail as a parole violator or until he is finally discharged from parole. Subsection (2) of KRS 439.177 provides that upon the petition of a misdemeanant serving a sentence of 30 days or more the county judge of the county in which he is being held “shall study the record” of the petitioner “and, in his discretion, may: “(a) Cause additional background or character information to be collected or reduced to writing by the bureau of corrections; “(b) Conduct hearings on the desirability of granting parole; “(c) Impose on the parolee such conditions as he sees fit; “(d) Order the granting of parole;” etc. While it is true that the statute does not prescribe criteria to which the county judge is restricted in determining whether a person should or should not be placed on parole, our attention has not been drawn to any constitutional inhibition against its being an entirely discretionary matter. The law involved in Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), was not declared void on the ground that there were no specified “terms and conditions” precedent to the granting of parole, but was declared so because there were no terms and conditions applicable after the granting of parole. We find in the arguments in this record no authority for the proposition that a legislative grant of the power to parole must premise it upon specific findings or criteria. Nor is there any requirement, statutory or otherwise, that the county judge must recite in his order granting parole whether he has studied the petitioner’s record or has done any of the other things the statute authorizes him to do. It is elementary that a formal order issued by an officer whose authority includes the issuance of such orders is presumed to be valid, and therefore supported by whatever the law requires, until it is shown otherwise. So, though it is true as recited in the writ of prohibition issued by the Nelson Circuit Court that the order of the county judge “contains no findings which indicate that the County Judge studied the record of the above named defendant,” the omission is irrelevant for the simple reason that there was no requirement that the order contain such findings. Cf. Commonwealth v. Pineur, Ky., 533 S.W.2d 527, 528 (1976). Moreover, though we need not pass on the question of whether a study of the applicant’s record is mandatory, in that its absence would be fatal to an order granting parole, during the evidentiary hearing conducted by the circuit court in this case there was no showing that the county judge had not studied Peck’s record. — 12 — The position of the circuit court as disclosed in colloquy with counsel during the course of the heading was that if KRS 439.177 is valid a county judge may “countermand” the action of a circuit court. This overlooks the fundamental fact 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. In granting parole the county judge acts in an executive capacity, not a judicial capacity. Murphy v. Cranfill, Ky., 416 S.W.2d 363, 365 (1967). It is the opinion of this court that to the extent that KRS 439.177 provides a procedure under which a county judge, in his capacity as an officer of the executive branch of government, may grant parole privileges to a misdemeanant, it satisfies the objections raised in Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), and that the order entered by the county judge of Nelson County granting such privileges to the appellant sufficiently complied with the statute. We express no opinion with respect to the possible invalidity or partial invalidity of the statute on grounds not raised in this case. The judgment is reversed with directions that the appellant be granted relief pursuant to his petition for habeas corpus. All concur except JONES, J., who dissents.