Prater v. Com., 2000-SC-0279-DG.

• Decision Date: 22 August 2002
• Docket Number: No. 2000-SC-0279-DG.,2000-SC-0279-DG.
• Citation: 82 S.W.3d 898
• Parties: Roma Gene PRATER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

82 S.W.3d 898

Roma Gene PRATER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-SC-0279-DG.

Supreme Court of Kentucky.

August 22, 2002.

As Amended September 24, 2002.

Joseph Ray Myers, Karen Maurer, Assistant Public Advocates, Department of Public Advocacy, Frankfort, for Appellant.

Gail Robinson, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Kentucky Association of Criminal Defense Lawyers, Amicus Curiae.

A.B. Chandler, III, Attorney General, John E. Zak, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for Appellee.

KELLER, Justice.

I. INTRODUCTION

We granted discretionary review to consider whether KRS 439.575, which establishes a "prerelease probation program," violates the Kentucky Constitutional provisions mandating separation of powers among the branches of government. We conclude that KRS 439.575 impermissibly confers the executive power of parole upon the judiciary, and we therefore affirm the decision of the Court of Appeals declaring KRS 439.575 unconstitutional.

II. FACTUAL BACKGROUND

The 1998 Kentucky General Assembly enacted a statute authorizing Kentucky's circuit courts to grant "probation" to inmates incarcerated in Kentucky's prison system.¹ That statute, codified at KRS 439.575, provides:

(1) There is hereby created a program for prerelease probation of inmates confined in correctional facilities under the jurisdiction of or under contract to the Department of Corrections.

(2) Any inmate who is in a prerelease program or eligible for a prerelease program as specified by administrative regulations of the Department of Corrections may apply to the sentencing court for a prerelease probation.

(3) The court, upon favorable recommendation of the Department of Corrections, may place the inmate on probation under those terms and conditions as the court deems necessary, which may include but need not be limited to those specified in KRS 533.030.

(4) In particular, the court may require that an inmate placed on prerelease probation remain in a half-way house approved by the Department of Corrections and that the probationer pay the cost of his or her lodging in the half-way house and the costs of probation supervision in accordance with applicable statutes for probation supervision and persons granted work release from jail.

(5) An inmate placed on prerelease probation shall no longer be considered as an inmate of the Department of Corrections but shall be considered as a defendant placed on probation, subject to supervision by the Division of Probation and Parole, or other agency approved by the court, and the orders of the court.

(6) A person placed on prerelease probation by the court who violates the conditions of his or her probation may be dealt with by the court in the same manner as any other person who violates the conditions of probation.

(7) The period of probation under this section shall not exceed the maximum expiration date of the inmate applying for the probation.²

On October 14, 1998, Appellant, who was then serving a felony prison sentence, filed a motion in the Graves Circuit Court asking the court to consider him for prerelease probation under KRS 439.575. The trial court denied the motion in a written order entered on October 29, 1998:

On September 20, 1993, this Court sentenced the Defendant to a term of incarceration of two years on the charge of Escape, 2nd Degree, to run consecutive with a ten year sentence in Indictment No. 92-CR-086 for the offense of Kidnapping. This matter is now before the Court on pro se motion of the Defendant for Pre-Release Probation pursuant to [legislation] passed by the 1998 Legislature.

This Court finds that the motion does not contain any certification by the Department of Corrections that the Defendant is eligible for or participating in any pre-release program as specified by the administrative regulations of the Department of Corrections. The Court further finds that this Statute vests in the Trial Court the executive function of parole, which is a clear violation of separation [of powers] in violation of Sections 27, 28, 69, and 109 of the Kentucky Constitution and, as such, is unconstitutional. For the foregoing reasons, this Court DENIES the Defendant's Motion for Pre-Release Probation.

Appellant sought review of the trial court's ruling in the Court of Appeals. The Court of Appeals did not address the issue of whether Appellant had satisfied the statutory requirements of KRS 439.575, but affirmed the Graves Circuit Court's ruling on the grounds that KRS 439.575 is unconstitutional because it "plainly, simply, and impermissibly gives parole power to the trial courts."

This Court granted Appellant's motion for discretionary review in which Appellant asked us to determine whether the Court of Appeals erred when it held KRS 439.575 unconstitutional. The Commonwealth did not file a cross motion for discretionary review³ asking us to consider Appellant's compliance with KRS 439.575's procedures (the issue not addressed by the Court of Appeals), and thus the sole issue before the Court⁴ concerns the constitutionality of KRS 439.575. We agree with the Court of Appeals and the Graves Circuit Court that KRS 439.575 is unconstitutional because it violates the separation of powers doctrine.

III. ANALYSIS

Sections 27 and 28 of the Kentucky Constitution explicitly require separation of powers between the branches of government:

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them are to be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.⁵

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.⁶

Each of the Commonwealth's three (3) prior Constitutions began with provisions — virtually identical to Sections 27 and 28 — that were designed to separate the powers of government and prevent concentrations of power.⁷ Today, Section 27 and 28 immediately follow the Kentucky Bill of Rights. Appropriately, this Court has described Sections 27 and 28 as embodying the "cardinal principle of our republican form of government"⁸ and one that is among the most "emphatically cherished and guarded"⁹ principles in our Constitution.

Since the adoption of the current Constitution, Kentucky courts have found unconstitutional the judiciary's exercise of functions exclusive to the legislative¹⁰ or executive¹¹ branches of government. Accordingly the issue presented in this appeal is whether KRS 439.575 permits members of the Judicial branch to perform an executive function — specifically, the power to parole inmates. To further narrow the issue on appeal, we observe that neither party disputes the well-recognized conclusion that the power to grant parole is a purely executive function.¹² Instead, in a noteworthy alignment of advocacy, both Appellant and the Commonwealth emphasize the language of KRS 439.575 and urge this Court to find the statute constitutional because it grants sentencing courts the power to grant probation, not parole. While both parties stress the fact that KRS 439.575 refers to prerelease "probation," our predecessor court poetically rejected the suggestion that the General Assembly's characterization of a power resolves questions as to the nature of that power:

A classic writer stated a well-known truth when he said, "That which we call a rose by any other name would smell as sweet." Its application is that it is not so much the expressed name that determines the actual classification, but it is the substance of the thing that points to its true designation. Therefore, if the word "parole" was nowhere mentioned in the act under consideration ... it would be a mere play upon words to say that the act did not confer upon the circuit judge the power of parole....¹³

Thus, we examine the substance of the power that KRS 439.575 grants to sentencing courts to determine the nature of that authority, and, as we find it indistinguishable from the executive power to grant parole, we hold that KRS 439.575 violates Kentucky's constitutional separation of powers provisions.

On several occasions, the appellate courts of Kentucky have addressed issues relating to the constitutional authority of the judicial and executive branches to suspend a defendant's sentence through probation or parole. In most of these cases however, the courts distinguished between the concepts of "probation" and "parole" in the context of a sentencing process somewhat different in form, but not substance, from the one now employed under the Kentucky Penal Code. Prior to the effective date of the Penal Code, "there were two ways in which redetermination of the actual length of imprisonment could occur"¹⁴ after a jury established the maximum term for which a defendant could be imprisoned:

One of the two involved a trial judge's power of probation of a convicted offender. That power, as defined in KRS 439.260(1), allowed a judge to postpone imposition of sentence, to probate an offender, and to impose upon him reasonable conditions to be performed. If any of these conditions were violated, the court could revoke probation. Following such revocation, the court could reinstate the original sentence that was imposed by the jury or could do something different. The statute said that the court "[could] impose any sentence which might have been imposed at the time of the conviction." ....

The second way in which a redetermination of the initial imprisonment term could occur under prior law involved the power of parole. Under the former sentencing process, if the power of probation was not exercised, a convicted offender was turned over to...