Muhammad v. Ky. Parole Bd.

• Decision Date: 20 August 2015
• Parties: Mikail Sajjaad Muhammad, Appellant v. Kentucky Parole Board, Appellee
• Court: United States State Supreme Court — District of Kentucky

468 S.W.3d 331

Mikail Sajjaad Muhammad, Appellant
v.
Kentucky Parole Board, Appellee

Supreme Court of Kentucky.

2013–SC–000420–DG
RENDERED: AUGUST 20, 2015

[468 S.W.3d 334]

ON REVIEW FROM COURT OF APPEALS, CASE NO. 2013–CA–000018–MR, OLDHAM CIRCUIT COURT NO. 12–CI–00807.
Counsel for Appellant: Aaron Reed Baker, Assistant Public Advocate, Department of Public Advocacy.

Counsel for Appellee: John C. Cummings, Justice and Public Safety Cabinet, Office of Legal Services.

OPINION OF THE COURT BY JUSTICE ABRAMSON

Guilty pleas have become the means by which the vast majority of criminal prosecutions are resolved.¹ The guilty plea process and the validity of the judgments resulting from that process are therefore matters of substantial public importance. This case, in which Mikail Sajjaad Muhammad contends that a plea bargain gone awry entitled him to habeas corpus relief, raises questions of sufficient moment concerning the avenues available for pursuing plea-bargain breach claims to justify our attention—notwithstanding the fact that the expiration of Muhammad's sentence has rendered his own case moot. The Oldham Circuit Court initially granted Muhammad's petition for habeas corpus relief, but upon intervention and appeal by the Kentucky Parole Board, as a real party in interest, the Court of Appeals reversed. That Court, while not ruling out the possibility that Muhammad might be, or might have been, entitled to some other form of relief, held that habeas corpus was not an appropriate remedy in the circumstances. That ruling prompted Muhammad's motion for discretionary review. Our reasoning differs somewhat from that of the Court of Appeals, but we agree with that Court's bottom line: Muhammad failed to establish the inadequacy of more usual forms of relief, and thus his resort to habeas corpus should have been denied. This conclusion has no practical effect for Muhammad, due to the mootness of his claim, but our Opinion will provide needed guidance as to the proper mode[s] of challenging an unfulfilled plea bargain.

RELEVANT FACTS

The controversy arose from Muhammad's October 2011 guilty plea in Fayette Circuit Court to one felony count of receiving stolen property (RSP), as delineated by Kentucky Revised Statute (KRS) 514.110(3)(a) (value of property between $500.00 and $10,000.00, making the offense a Class–D felony). In exchange for Muhammad's Alford² plea waiving his trial rights and conceding evidence suggestive of his guilt, the Commonwealth agreed to dismiss a first-degree persistent felony offender (PFO) count, to recommend a sentence of three years, and not to seek revocation of the five-year conditional discharge Muhammad was then serving for a 2008 sex-offense conviction. The prosecutor's last promise, that the guilty plea and resulting RSP conviction would not result in the revocation of Muhammad's conditional discharge, proved to be problematic. To see why requires an understanding of KRS 532.043, formerly the “conditional discharge” statute and

[468 S.W.3d 335]

now the “post-incarceration supervision” statute.

In pertinent part, KRS 532.043 currently provides that persons convicted of or pleading guilty to a felony offense under KRS Chapter 510 (Sexual Offenses) shall be subject, upon completion of their regular sentences, to an additional period of parole-board supervision. In November 2007, when Muhammad pled guilty to one count of first-degree sexual abuse—a KRS Chapter 510 felony (KRS 510.110)—the statute referred to the additional period of supervision as “conditional discharge” and provided that the “period of conditional discharge shall be five (5) years.” KRS 532.043(2) (2007). ³ At that time the statute also provided that

(3) During the period of conditional discharge, the defendant shall: (a) Be subject to all orders specified by the Department of Corrections ...

(4) Persons under conditional discharge ... shall be subject to the supervision of the Division of Probation and Parole[,] [and]

(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth's attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant's conditional discharge and reincarcerate the defendant as set forth in KRS 532.060.

KRS 532.043 (2007).

According to records of the Division of Probation and Parole, Muhammad completed his two-year sentence for first-degree sex abuse and began serving his five-year period of sex-offender conditional discharge on May 17, 2009. He was still serving that part of his sentence in October 2011 when he pled guilty to RSP. As just noted, under the 2007 version of KRS 532.043, whether to seek revocation of Muhammad's conditional discharge as a result of his new conviction was a matter of prosecutorial discretion, and thus, under that version of the statute, there is not much question that the prosecutor could have legitimately offered non-revocation as part of the consideration for Muhammad's guilty plea.

As it happened, however, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky.2010), a case rendered in April 2010, this Court held that KRS 532.043 ran afoul of the separation of powers doctrine to the extent that it made the judicial branch responsible for conditional discharge revocation proceedings, proceedings properly the responsibility of the executive branch. “Once a prisoner is turned over to the Department of Corrections for execution of the sentence,” the Court explained, “the power to determine the period of incarceration passes to the executive branch.” 319 S.W.3d at 300. Consistent with the separation of powers doctrine, then, the General Assembly can “create a form of conditional release [such as KRS 532.043's “conditional discharge”] with terms and supervision by the executive branch,” 319 S.W.3d at 299, but it cannot derogate from that executive authority by involving the judicial branch directly in the exercise of administrative action. “Only on appeal of an administrative action,” the Court observed, “should the judicial branch become involved.” 319 S.W.3d at 300.

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The General Assembly was quick to respond. At its next session it enacted House Bill 463 (effective March 3, 2011) which, among many other things, amended KRS 532.043 by changing the phrase “conditional discharge” to “postincarceration supervision;” by making clear that persons on postincarceration supervision are under the authority of the Parole Board; and by assigning responsibility for revocation proceedings to parole authorities:

(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant's postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060.

KRS 532.043(5) (2011). At the time of Muhammad's October 2011 guilty plea, therefore, revocation of a sex offender's “postincarceration supervision” was no longer a matter of prosecutorial discretion, but, like the revocation of other forms of parole, a matter entrusted to parole authorities and ultimately to the Parole Board.

Nevertheless, in exchange for Muhammad's guilty plea, the prosecutor promised not to pursue revocation of Muhammad's “conditional discharge.” Both the trial court and defense counsel signed off on that agreement, with everyone, including particularly Muhammad, apparently understanding that despite the new RSP conviction, Muhammad's conditional discharge from his 2008 sex offense would not be revoked.⁴

To Muhammad's surprise, however, on the day (October 18, 2011) the trial court's Judgment convicting Muhammad of RSP and sentencing him to three years in prison was entered, a parole officer commenced revocation proceedings by filing a Notice of Preliminary Hearing. Following the preliminary hearing on November 14, 2011, an administrative law judge ruled that, notwithstanding Muhammad's plea bargain, his new conviction provided probable cause for the revocation of his discharge. The ALJ therefore referred the matter to the Parole Board for a final

[468 S.W.3d 337]

hearing. At that point (December 1, 2011), Muhammad was returned to custody with respect to the sex offense. (He was already in custody, it appears, with respect to the RSP offense.) He was interviewed by the Parole Board on March 22, 2012. The Board agreed with the administrative law judge that Muhammad's new felony conviction provided grounds for the revocation of his sex-offender conditional discharge/postincarceration supervision, and it ordered Muhammad to serve out the discharge period, which was due to expire on May 17, 2014.

There the matter stood, apparently, until August 7, 2012, when Muhammad filed in the trial court a pro se motion under Kentucky Rule of Criminal Procedure (RCr) 11.42 for relief from the October 2011 Judgment. He alleged that defense counsel had rendered ineffective assistance when she advised him to plead guilty in reliance on a promise—the promise that Muhammad's conditional discharge would not be revoked—that the prosecutor was not authorized to make. He attached to his motion a letter from defense counsel to the effect that she had indeed misadvised him in that regard. Muhammad's motion also alleged, and the Parole Board does not dispute this claim, that in May 2012 Muhammad served out his three-year sentence for receiving stolen property.⁵ That left the revoked sex-offender conditional discharge as the only basis for Muhammad's continued incarceration.

Counsel was appointed to assist Muhammad with his RCr 11.42 motion, and when counsel saw that RCr 11.42 arguably did not apply,⁶ and that Muhammad's incarceration was arguably illegal—the result of a broken plea bargain—counsel abandoned the RCr 11.42 proceeding in the trial court (Fayette Circuit...