Request By:
Mr. Barnett Napier
Executive Director
Department of Justice
Parole Board
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Eileen Walsh, Assistant Attorney General
Your question concerns the situation where a parolee is convicted of a new felony charge and is committed to a state penal institution on the new charge. Under KRS 439.352 recommitment of a parolee to prison on a new felony conviction automatically terminates the individual's parole status. Your question specifically concerns the situation where the parolee's recommitment offense is subsequently reversed by an appellate court. You ask what action, if any, should the Parole Board take subsequent to the new conviction being reversed.
It is our opinion that the Parole Board should take immediate action once the Board has received notice of the appellate court's reversal of the recommitment offense. It would seem that the Parole Board should meet with the prisoner as soon as possible for review of his case. If the sole basis for the prisoner's parole revocation was the recommitment offense which was subsequently reversed, it would appear, then, that the prisoner should be reparoled without delay.
A prisoner's parole may not be revoked without the minimum requirements of due process. Reasonable grounds must exist for revocation of parole. See Morrissey v. Brewer, 408 U.S. 471 (1972). Where the sole ground for the parole revocation was a recommitment offense that is subsequently reversed, reasonable grounds for the revocation cease to exist. The prisoner should be reparoled to avoid potential due process problems.
You have also asked a question pertaining to the situation where a person is recommitted on new felony charges and is then granted bond pending his appeal. The paroling of prisoners and the revocation of that parole is a matter within the discretion of the Division of Probation and Parole and the Parole Board. Wingo v. Lyons, Ky., 432 S.W.2d 821 (1968); KRS 439.340; 439.346; KRS 439.348. Under KRS 439.352, a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. See Balsley v. Commonwealth, Ky., 428 S.W.2d 614 (1968).
A man on parole is not a free man, but remains at all times amenable to the orders of the parole authorities. Based on the above reasons and the authority set out in KRS 439.346, 439.348 and 439.430, it is our opinion that the parole authorities can legally recommit the parolee, notwithstanding that he has been released on an appeal bond.