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Joshua WOODS, Appellant v. COMMONWEALTH of Kentucky, Appellee
Joshua Woods appeals from an order of the Whitley Circuit Court denying his motion for jail time credit pursuant to Kentucky Revised Statute (KRS) 532.120(9). Because Woods failed to name an indispensable party, we dismiss this appeal.
In April 2015, Woods was indicted for, among other things, possession of a controlled substance in the first degree. Whitley Circuit Court case No. 15-CR-00064. Those charges were still pending in January 2018, when Woods was indicted for, among other things, manslaughter in the second degree stemming from a September 2017 automobile accident. Whitley Circuit Court case No. 18-CR-00008. In July 2018, Woods reached a plea agreement with the Commonwealth covering both indictments, pursuant to which he would serve eight total years. In August 2018, Woods was sentenced in accordance with the plea agreement.
In March 2019, Woods sent the trial court a letter asking it to “sign off on” his receiving additional jail time credit. Woods attached only some “detailed release reports” from the Whitley County Detention Center to the letter. There is no indication the trial court responded.
In May 2019, Woods filed the KRS 532.120 motion at hand. Woods asserted he had been credited with 46 extra days of credit in case No. 18-CR-00008 (424 days instead of 378 days) but had been credited with 0 days in case No. 15-CR-00064 when he was entitled to 277 days. Thus, Woods believed he was entitled to a total of 231 additional days of credit (277 days in case No. 15-CR-00064 – 46 extra days in No. 18-CR-00008 = 231). Woods again attached release reports from the Whitley County Detention Center, along with an inmate resident record printout, but did not attach anything showing when/how he had raised the matter with the Department of Corrections. Neither the Department of Corrections nor the warden was named in the circuit court action. In June 2019, the trial court issued a one-sentence order denying the motion because “the Department of Corrections determines credit of time served.” This appeal followed.
“A notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court[.] Therefore, the notice of appeal transfer[s] jurisdiction to the Court of Appeals of only the named parties.” City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990) (citation omitted). This Court has no jurisdiction relative to persons not named as parties to the appeal.
Woods names only the Commonwealth of Kentucky in the notice of appeal. He failed to name either the warden or the Department of Corrections as an indispensable party, which warrants dismissal of this appeal under Watkins v. Fannin, 278 S.W.3d 637, 640 (Ky. App. 2009).
Failure to name an indispensable party would have resulted in an automatic dismissal of an appeal under Watkins prior to the Kentucky Supreme Court’s decision in Lassiter v. American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714, 719 (Ky. 2010) (holding that the naming of an agency to a lawsuit is the functional equivalent of naming the agency’s head in his official capacity). Lassiter named the state Department of Treasury.1
Lassiter seemingly threw a lifeline to appellants who failed to name the warden or Department of Corrections as a party to an appeal but named the Commonwealth of Kentucky. See Thrasher v. Commonwealth, 386 S.W.3d 132 (Ky. App. 2012). In Thrasher, both the warden and the Department of Corrections were parties in the trial court action and were represented by the Office of Legal Services for the Justice and Public Safety Cabinet. Thrasher named only the Commonwealth of Kentucky in the notice of appeal but served the Department through its legal counsel. His appeal was initially dismissed for failure to name an indispensable party. The Kentucky Supreme Court vacated the order and remanded for consideration in light of Lassiter. Id. at 133 n.1.
Upon remand, the Court of Appeals entered an order finding that sufficient cause had been shown why the appeal should not be dismissed for failure to name an indispensable party and ordered the Franklin Circuit Clerk to certify the record. Though Thrasher’s case survived his failure to name an indispensable party, it did not survive the appeal. Another panel of this Court affirmed the trial court, which dismissed Thrasher’s petition for declaration of rights for failure to exhaust administrative remedies. Neither Thrasher nor Lassiter overruled Watkins.
Unlike Thrasher, Woods did not name the warden or the Department of Corrections in the underlying circuit court action. He did not name either in his notice of appeal, nor did he serve either with notice, making it difficult to determine which department or cabinet was affected by the appeal. Lassiter named the Department of Treasury and Thrasher served legal counsel for the Department of Corrections with notice.2
Lassiter does not create a rule that naming the Commonwealth only is acceptable as a substitute for naming on appeal all the numerous state agencies which are the actual indispensable parties without some notification to the specific agency. That would be quite the procedural nightmare thrust upon the Office of the Attorney General to sort out where the notice should have gone.
Even if Woods had named the warden and the Department of Corrections, or had he been afforded the Thrasher/Lassiter lifeline, his appeal still fails because he failed to exhaust his administrative remedies. KRS 532.120(9) provides that “[a]n inmate may challenge a failure of the Department of Corrections to award a sentencing credit under this section or the amount of credit awarded by motion made in the sentencing court no later than thirty (30) days after the inmate has exhausted his or her administrative remedies.” The trial court’s seeming belief that an inmate can never challenge the Department of Corrections’ credit calculations is thus erroneous. However, if the appeal were not dismissed, we may affirm the trial court’s decision “for any reason sustainable under the record.” Lynn v. Commonwealth, 257 S.W.3d 596, 599 (Ky. App. 2008).
To challenge the Department of Corrections’ credit calculations in the sentencing court an inmate must have exhausted his or her administrative remedies. See KRS 454.415(1) (stating that an inmate may not bring an action to, among other things, challenge his or her custody credits “until administrative remedies as set forth in the policies and procedures of the Department of Corrections ․ are exhausted”).
KRS 454.415(3) requires an inmate to prove exhaustion by “attach[ing] to any complaint filed documents verifying that administrative remedies have been exhausted.” The penalty for failing to comply with administrative remedies is dismissal of the action. KRS 454.415(4). It is inarguable that Woods failed to prove he exhausted his administrative remedies. Thus, his motion should have been dismissed, which is a result functionally akin to the trial court’s summary denial of Woods’ motion.
Woods did attach to his opening brief in this Court a document purporting to be a request he made to the Department of Corrections to review his jail time credit. But “an appellate court cannot consider items that were not first presented to the trial court.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Thus, we cannot rely upon documents Woods did not submit to the trial court. In any event, the attachments do not show Woods properly exhausted his administrative remedies.
Duly promulgated administrative regulations have the “force and effect of law.” Linkous v. Darch, 323 S.W.2d 850, 852 (Ky. 1959). And 501 Kentucky Administrative Regulation (KAR) 6:020 § 1 incorporates by reference Department of Corrections Policies and Procedures (CPP) 17.4, which governs sentence calculations. CPP 17.4(I)(D), which thus has the force and effect of law, sets forth the following process for an inmate to request a credit review:
D. Administrative Remedy for Jail Custody Time Credit
1. Review Request
a. An offender may request in writing a review of the calculation of jail custody time credit applied to his sentence or a review or explanation of the method used to calculate custody time credit for the sentences on which he is presently committed to the Department of Corrections.
b. To request a review, the offender shall mail the request to the Probation and Parole Office in the county in which the inmate was sentenced.
c. The offender request shall include:
(1) The subject matter for which the review is requested,
(2) A brief statement of the matter to be reviewed, and
(3) An explanation of the inmate’s belief concerning the appropriate calculation of jail custody time credit.
a. The District Supervisor, or designee, shall review the request and prepare a written response. Upon receipt of the written request from the inmate, the District Supervisor, or designee, shall review the offender’s record prior to giving a response.
(1) The response shall include an explanation of the method of calculation of jail custody time credit, and
(2) Whether or not the correct jail custody time credit has been applied to the sentence.
b. A written response shall be issued within fifteen (15) working days of the receipt of the offender’s request for review or explanation.
c. The written response shall be entered in the offender management system.
a. An inmate may appeal the written response concerning custody time credit to the Offender Information Services Branch, Attention: Custody Time Credit Appeal, PO Box 2400, Frankfort, KY 40602-2400.
b. The appeal response shall include:
(1) An explanation of the method of calculation and application, and
(2) Any statutes applied in the calculation.
c. The response on this appeal shall be issued within thirty (30) working days of the receipt of the offender’s request for review.
Woods was first required to mail a sentence credit review request to the Whitley County Probation and Parole Office. Indeed, within exhibit one to his initial appellate brief is a document purporting to be a letter from the institution where he was housed explaining that requirement. But Woods has provided nothing concrete to show that he properly contacted the Whitley County Probation and Parole Office, and we may not blindly take on faith the belated, naked assertion in his reply brief that he did.
Even if we, solely for the sake of argument, were to accept that Woods contacted that local office, he has not shown that he then properly appealed to the Department of Corrections Offender Information Services Branch before timely seeking relief in circuit court. In short, Woods has failed to demonstrate that he exhausted his administrative remedies and so his motion should have been dismissed.
In closing, we express no binding opinion on whether Woods is entitled to additional credit. It would be curious, however, if Woods has truly been credited with no days served in case No. 15-CR-00064 since the circuit court record shows his bond was revoked multiple times, which logically means he spent at least some amount of time in jail prior to sentencing. Similarly, it also would be curious if Woods has truly been given 424 days of credit in case No. 18-CR-00008. The offenses underlying that indictment occurred on September 3, 2017, and 424 days thereafter was November 1, 2018—well after Woods’ August 2018 sentencing—so it is unclear how he could be entitled to 424 days of credit. We are confident that if Woods complies with CPP 17.4 the Department of Corrections will explain its calculations and make any necessary credit adjustments.
For the foregoing reasons, we dismiss Woods’ appeal for failure to name an indispensable party.
1. If Watkins had named the Department of Corrections in his petition and also in his notice of appeal, we could have proceeded to the merits because the Department remains vested with the authority over the award and forfeiture of good-time credit. However, Watkins did not name the Department in any document filed either with the circuit court or with this Court.Watkins, 278 S.W.3d at 642 n.6.
2. Another panel of this Court seemingly extended Lassiter, deeming service upon the agency to be “minimally sufficient to bring all indispensable parties before the Court.” Tillman v. Commonwealth, No. 2016-CA-001568-MR, 2017 WL 4082888, at *1 n.1 (Ky. App. Sept. 15, 2017).
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Docket No: NO. 2019-CA-001042-MR
Decided: March 20, 2020
Court: Court of Appeals of Kentucky.
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