McComb v. State, 91,397.

• Decision Date: 23 July 2004
• Docket Number: No. 91,397.,91,397.
• Citation: 94 P.3d 715,32 Kan.App.2d 1037
• Parties: VIRGIL BRUCE McCOMB, Appellee, v. STATE OF KANSAS, WYANDOTTE COUNTY SHERIFF, and KANSAS DEPARTMENT OF CORRECTIONS, Appellants.
• Court: Kansas Court of Appeals

32 Kan.App.2d 1037

94 P.3d 715

VIRGIL BRUCE McCOMB, Appellee, v. STATE OF KANSAS, WYANDOTTE COUNTY SHERIFF, and KANSAS DEPARTMENT OF CORRECTIONS, Appellants.

No. 91,397.

Court of Appeals of Kansas.

Opinion filed July 23, 2004.

Timothy G. Madden, of Kansas Department of Corrections, for appellant.

Carl E. Cornwell, of Olathe, for appellee.

Before MARQUARDT, P.J., MALONE, J., and ERIC S. ROSEN, District Judge, assigned.

MALONE, J.

The State of Kansas, the Wyandotte County Sheriff, and the Kansas Department of Corrections (KDOC) appeal the district court's order granting Virgil Bruce McComb's K.S.A. 2003 Supp. 60-1501 petition. McComb was convicted of aggravated indecent liberties with a child, served time in prison, and was ultimately placed on postrelease supervision. He has always maintained his innocence. The sole issue is whether McComb's postrelease supervision can be revoked for his failure to participate in a sexual abuse treatment program (SATP) which requires McComb to accept responsibility for his crime. This is an issue of first impression. Facts and procedural background

On August 28, 1996, McComb was convicted by a jury of four counts of aggravated indecent liberties with a child. The victim was his 10-year-old granddaughter. McComb received a sentence of 73 months' incarceration, followed by 24 months' postrelease supervision. At trial, McComb maintained he was not guilty.

McComb continued to claim his innocence throughout his incarceration. McComb was enrolled in the prison SATP, but he refused to sign an "admission of guilt." As a result, McComb lost privileges and benefits, including good time credits. McComb was first released from prison in April 2002. One of the conditions of his release was participation in a recommended SATP. The SATP is recognized by the parties as a therapeutic treatment program. The program requires the participant to admit guilt for the underlying offense on the theory that the participant cannot be treated for a problem until responsibility is accepted.

McComb reported to his therapy sessions but refused to sign an admission of guilt. In August 2002, following a preliminary hearing before the KDOC and a final hearing before the Kansas Parole Board (Board), McComb was found to have violated the conditions of his release. He was returned to prison and served 133 days in custody.

McComb was again released from prison on the condition that he successfully complete the same treatment program. Again, McComb reported to his therapy sessions but refused to sign the admission of guilt. Following a preliminary and final hearing, McComb was found to be in violation of the terms of his release and was again returned to prison. McComb served another 120 days.

After McComb was released for the third time, he told the therapist that he was guilty of the crime. Two weeks later, McComb again denied his guilt and was expelled from the program. A third revocation process was initiated against McComb. This time McComb waived his preliminary hearing before the KDOC and also waived his final hearing before the Board. Instead, on July 22, 2003, McComb filed a K.S.A. 2003 Supp. 60-1501 petition, claiming that the SATP condition of his release violated his Fifth Amendment privilege against self-incrimination and his Fourth Amendment right to be free from unreasonable seizure.

The KDOC's answer asserted that McComb's waiver of his hearing before the Board constituted a failure to exhaust administrative remedies. The KDOC also argued that the SATP condition was constitutional as applied to McComb.

Following an evidentiary hearing, the district court granted McComb's petition. On the waiver argument, the district court found that the parties had "stipulated" that if McComb had asserted his right to preliminary and final hearings, probable cause would have been found to revoke his release. On the merits of McComb's claim, the district court found that the Board's action in revoking McComb's postrelease supervision was "arbitrary and capricious and constitutes an abuse of discretion and a denial of due process of law." The district court ordered that McComb be released from prison and that he be allowed to serve the balance of his postrelease supervision term without the SATP condition.

This timely appeal follows.

Standard of review

"In reviewing a district court's decision reviewing an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency's action as does the district court. [Citations omitted.]" Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).

"While habeas corpus is the appropriate procedure for reviewing decisions of the Kansas Parole Board (Board), appellate review is limited to determining if the Board complied with the applicable statutes and whether its action was arbitrary or capricious." Brown v. Kansas Parole Board, 262 Kan. 903, Syl. ¶ 2, 943 P.2d 1240 (1997); see Swisher v. Hamilton, 12 Kan. App. 2d 183, 185, 740 P.2d 95, rev. denied 242 Kan. 905 (1987).

"An inmate's claim brought pursuant to K.S.A. 60-1501 et seq. must be based upon deprivation of a constitutional right or be subject to summary dismissal." Ramirez v. State, 23 Kan. App. 2d 445, Syl. ¶ 3, 931 P.2d 1265, rev. denied262 Kan. 962 (1987). Allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Swisher, 12 Kan. App. 2d at 184-85.

The question of whether an individual's constitutional rights have been violated is a question of law. Hearst v. State, 30 Kan. App. 2d 1052, 1055-56, 54 P.3d 518 (2002). An appellate court's review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

Exhaustion of administrative remedies

The KDOC asserts that McComb failed to exhaust his administrative remedies when he waived his hearing before the Board on the third attempt to revoke McComb's postrelease supervision. The KDOC correctly points out that if a party withholds an issue from determination by an agency, the issue is not properly preserved for judicial review. Shields v. J.E. Dunn Constr. Co., 24 Kan. App. 2d 382, 387, 946 P.2d 94 (1997). The KDOC contends that, had McComb requested a third hearing, the Board had the option to continue McComb's conditional release pursuant to K.S.A. 2003 Supp. 75-5217(b). The KDOC argues that the Board's action could not be considered "arbitrary and capricious," when the Board never actually made any findings or orders relating to McComb's third expulsion from the SATP.

McComb counters by arguing that the parties stipulated to the likely result of the Board hearing. McComb further argues that he was not required to seek an administrative remedy when the remedy is known to be inadequate. Specifically, McComb asserts that there "is no reason to believe that a third set of hearings [before the KDOC and the Board] would have yielded a different result."

An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and appellate court review is unlimited. NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, Syl. ¶ 3, 996 P.2d 821 (2002).

The district court found that the parties had "stipulated" that McComb's release would have been revoked had he requested a third hearing before the Board. No such written stipulation was ever filed in this case. However, the parties conducted a lengthy "stipulations hearing" where McComb offered to stipulate to that result. The KDOC never disagreed with the proposed stipulation and said nothing to prevent the court from believing that it agreed with McComb's analysis. Upon reviewing the entire transcript of the "stipulations hearing," we conclude that the district court reasonably believed that the parties were stipulating to the eventual outcome of the hearings.

More importantly, a party is not required to seek an administrative remedy when the remedy is known to be inadequate. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 24 P.3d 128 (2001). In Pierpoint, an inmate made two requests for the assistance of counsel at a disciplinary hearing, which were both denied. The inmate subsequently filed a 60-1501 petition without requesting an agency hearing, and the KDOC responded by claiming that the inmate had failed to exhaust his administrative remedies. The court found that, under these circumstances, there was no reason to believe that another request for the presence of counsel would have yielded a different result. The court held the inmate was not required to exhaust his administrative remedies and noted that "[e]xhaustion of administrative remedies is not required when administrative remedies are inadequate or would serve no purpose." 271 Kan. 620, Syl. ¶ 2; see State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 549, 693 P.2d 1163 (1985).

McComb's situation is similar to the facts of Pierpoint. McComb had already exhausted his administrative remedies for the same violation on two prior occasions within the previous 12 months. Although the Board technically had the power to continue McComb's conditional release, from a practical standpoint, there is absolutely no evidence that the Board would have departed from its previous position. Under the specific facts of this case, the administrative remedies presented to McComb were inadequate, and the district court did not err in retaining jurisdiction after McComb waived his third round of administrative hearings.

McComb's sentence

Before turning to the merits of McComb's constitutional claims, we must understand the provisions of his sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Every criminal sentence under the KSGA consists of two components: a determinative prison sentence and a...