501 KAR 1:040. Conducting parole revocation hearings

Link to law: http://www.lrc.ky.gov/kar/501/001/040.htm
Published: 2015

      501 KAR 1:040.

Conducting parole revocation hearings.

 

      RELATES TO: KRS

439.315, 439.330(1)(e), 439.341, 439.390, 439.430, 439.440

      STATUTORY AUTHORITY:

KRS 439.340(3)

      NECESSITY, FUNCTION,

AND CONFORMITY: KRS 439.340(3) requires the Parole Board to establish

administrative regulations concerning parole revocation hearings. This

administrative regulation contains the procedures for the revocation of parole

and the issuance of warrants.

 

      Section 1.

Preliminary Revocation Hearings. Preliminary revocation hearings shall be

conducted by an administrative law judge of the Parole Board who shall have

control over the proceedings and the reception of evidence at these hearings.

      (1) Charges of

parole violation shall be initiated by a parole officer of the Department of

Corrections by service of a notice of preliminary hearing which sets forth the

alleged violations. This notice may be amended at any time prior to the close

of the record of the preliminary hearing, within the discretion of the

administrative law judge, if a finding is made that the substantial rights of

the parolee shall not be prejudiced by the amendment. A continuance of the

proceeding may be granted in the event of this amendment, if the interest of

justice so requires. Failure to object to any defect in the notice prior to the

close of the hearing shall be deemed a waiver of this objection.

      (2) Pursuant to SCR

3.700 Sub-rule 3, in the absence of an attorney to represent the Department of

Corrections, Division of Probation and Parole, before the board and the

administrative law judge, any duly appointed probation and parole officer of

the Commonwealth of Kentucky may appear before the board or its administrative

law judge as representative of the Department of Corrections in matters

relating to the revocation of probation or parole.

      (3) Unless the

waiting period is waived by a parolee, a preliminary hearing shall not be

conducted earlier than five (5) days of service of notice of the hearing. The

preliminary hearing may be continued or recessed with further proof to be taken

at any time prior to the close of the record for good cause shown. At the

request of either party, the administrative law judge may, within his

discretion, leave the record open for reception of additional evidence provided

that no substantial rights are prejudiced.

      (4) All preliminary

revocation hearings shall be conducted on the record. The hearing may be

recorded and preserved by any means practical, including electronically,

mechanically, or stenographically. If requested by the board, the record of the

proceedings shall be transcribed.

      (5) The

administrative law judges may take judicial notice of acts of the Parole Board,

including the conditions of parole, and all other matters which may be

judicially noticed in the courts of this Commonwealth pursuant to KRE 201.

Witnesses appearing at the preliminary hearing to give testimony shall do so

under oath, administered by the administrative law judge, and shall be

available for examination by the other party or the administrative law judge,

unless good cause dictates otherwise. The parole officer shall bear the burden

of proof in establishing the elements of the violation. The parole officer

shall present evidence first and the parolee shall be given the opportunity to

present evidence in defense or mitigation. Any further proceedings shall be

conducted at the discretion of the administrative law judge. The parolee may,

within reasonable limits, present evidence solely for the purpose of mitigation

of his conduct, including evidence of his mental condition. If presented, this

evidence shall be subject to rebuttal by the parole officer.

      (6)(a) At the close

of the hearing, or within a reasonable time thereafter, the administrative law

judge shall make a determination, from the evidence produced at the hearing, as

well as any evidence of which judicial notice is taken, whether there exists

probable cause to believe that the parolee has committed any or all of the

violations alleged in the notice of preliminary hearing.

      (b) Except as

provided by paragraph (c) of this subsection, if probable cause is found to

exist, the case shall then be referred to the Parole Board which shall then

issue a parole violation warrant which shall cause the parolee to be brought

before the Parole Board for a final parole revocation hearing.

      (c) Notwithstanding

a finding of probable cause, leniency may be granted in any form deemed

appropriate by the administrative law judge if all parties agree to the

leniency, and if the parolee agrees to any additional conditions of his parole

as set forth by the administrative law judge after consultation with the parole

officer.

      (7) If the

administrative law judge finds probable cause to believe that a violation of

parole has been committed and the case is referred to the Parole Board for the

issuance of a parole violation warrant, the administrative law judge shall

issue a written decision and may issue a recommendation, along with reasons in

support of that recommendation, as to what action should be taken concerning

the parolee's parole, including recommendations concerning the terms and

conditions of any future parole. This recommendation shall be advisory only and

shall not be binding on the board. If the administrative law judge finds that

there exists substantial mitigating factors or a viable alternative to

reincarceration, the administrative law judge may recommend that the parolee

not be returned as a parole violator. If the administrative law judge makes

that finding and recommendation, the case shall be referred to the Parole Board

for their vote on the issuance of the parole violation warrant.

      (8) In preliminary

revocation hearings conducted on probation cases or on cases in which the

releasing authority is other than the Kentucky Parole Board, upon a finding of

probable cause, the matter may be referred to the releasing authority for

further revocation consideration, or leniency may be considered on the same

basis as a case in which the Kentucky Parole Board is the releasing authority.

      (9) If the alleged

violation of parole, as set forth in the notice of preliminary hearing, is new

criminal conduct which does not also constitute a technical violation of the

conditions of supervision, or the conditions of parole, the case shall not be

referred to the board for parole revocation consideration unless it is shown

that the parolee has received a conviction in a court of law or there exists

some other form of judicial admission, such as a plea of guilty, concerning the

alleged criminal conduct, or it is found that the criminal conduct, or a

substantial part of it, was committed in the presence of a duly appointed

probation and parole officer of the Commonwealth of Kentucky. Nothing in this

subsection shall prevent revocation of parole for a technical violation, which

also happens to partially or wholly involve criminal conduct.

      (10) Any party

appearing before an administrative law judge of the Kentucky Parole Board may

be represented by counsel if he so desires. The party may have, upon motion

thereof, a continuance for the purpose of obtaining the presence of counsel;

except that chronic appearance for hearing without counsel by a parolee who is

capable of retaining counsel may be deemed an implicit waiver of counsel.

      (11) The

administrative law judges, in the absence of any specific statutory

authorization, shall not consider matters of bail or any other form of release

from custody for those persons accused of parole or probation violations.

 

      Section 2. Good

Cause Hearings. KRS 439.315 requires the imposition of a supervision fee on all

parolees and the establishment of a good cause hearing if the supervision fee

is not paid. This section describes the good cause hearing.

      (1) Upon nonpayment

of any installment of the monthly supervision fee, the parole officer shall

serve a notice of preliminary hearing on the parolee and also shall serve the

supplemental notice of good cause hearing on the parolee.

      (2) The good cause

hearing shall be scheduled as any other preliminary revocation hearing.

      (3) If the parolee

makes the required supervision fee payment prior to the scheduled good cause

hearing, the hearing shall be cancelled.

      (4) The parolee

shall be permitted legal representation at the good cause hearing.

      (5) The burden of

proof to show good cause for nonpayment of the supervision fee shall be placed

upon the parolee.

      (6) The

administrative law judge of the Kentucky Parole Board shall determine whether

good cause exists for the nonpayment of the supervision fee.

      (7) If the

administrative law judge finds that good cause exists for the nonpayment of the

supervision fee, the charges shall be dismissed and the parolee shall be

returned to parole supervision with the previously imposed supervision fee.

      (8) If the

administrative law judge finds that good cause does not exist, the parole

officer may request that the hearing be continued sine die with the condition

that the parolee pay the arrears and agrees to pay the supervision fee on a

monthly basis.

      (9) If the

administrative law judge finds that good cause does not exist for nonpayment of

the supervision fee, absent any motion from the parole officer, the hearing

shall immediately continue and become a preliminary parole revocation hearing,

and shall be conducted as described in Section 1 of this administrative regulation.

 

      Section 3. Parole

Violation Warrant. Parole violation warrants shall be issued as set forth

below:

      (1) If a case is

referred to the Parole Board by the administrative law judge under the

provisions of Section 1(6) of this administrative regulation, the Parole Board

shall issue the parole violation warrant. A vote of the board shall not be

necessary.

      (2) If a case is

referred to the full Parole Board by the administrative law judge with a

recommendation that the parolee not be returned to the institution as a parole

violator, pursuant to Section 1(7) of this administrative regulation, the board

may issue a parole violation warrant, if upon review a majority of the board

concurs that probable cause exists to believe a parole violation has taken place.

If the board votes to issue the warrant, the warrant shall be issued.

      (3) If it appears

that a parolee has absconded from parole supervision, it otherwise appears that

a parolee is a fugitive from justice, or a parole violation warrant is

necessary to effect the return of the parolee to the state of Kentucky, the

Parole Board may issue a warrant, if it receives documentation from the

supervising parole officer, setting forth facts sufficient to conclude there

are reasonable grounds to believe that some violation has occurred, and the

commissioner or his designee submits to the board a recommendation that a

warrant be issued.

      (4) If the parolee

is being supervised outside the state of Kentucky, a parole violation warrant

may be issued upon a vote of the Parole Board based upon a written report from

the supervising state setting forth facts sufficient to conclude that there are

reasonable grounds to believe that a violation of parole has occurred, and the

commissioner or his designee submits to the board a recommendation that a

warrant be issued.

      (5) In all other

cases parole violation warrants may be issued only upon majority vote of the

board, except as set forth in subsection (7) of this section. If the board

votes to issue any warrant, the warrant shall be issued.

      (6) The board may

decline any request for a parole violation warrant made pursuant to any section

of this administrative regulation except subsection (1) of this section. Any

parole violation warrant, issued under any section of this administrative

regulation, may be rescinded by majority vote of the board at any time.

      (7) If a vote of the

board is required to issue a parole violation warrant, and if there is no

quorum of the board present to concur that probable cause exists and the warrant

should be issued, any member of the Parole Board may issue a parole violation

warrant if he, upon review concurs that probable cause exists to issue said

warrant. If a parole violation warrant is issued under these circumstances, the

board shall vote, as soon as is reasonable, on whether or not to concur in the

issuance of the warrant. If a majority of the board does not concur, the

warrant shall be voided by the board.

      (8) Any member of

the Parole Board may sign warrants.

 

      Section 4.

Preliminary Hearings Conducted Subsequent to the Issuance of the Parole

Violation or for Parolees Supervised in Another State. (1)(a) This subsection

shall not apply if a parolee is being supervised by another state and if that

supervisory state held a preliminary parole revocation hearing for the parolee.

      (b) A preliminary revocation hearing

shall be conducted pursuant to Section 1 of this administrative regulation, if:

      1. A parole violation warrant has been

issued for a parolee without a preliminary revocation hearing; and

      2. The parolee is apprehended or returns

to the state of Kentucky.

      (c) Except as provided by paragraph (e)

of this subsection, following the hearing, the parolee shall be ordered

returned to the appropriate institution of the Kentucky Department of Corrections

for further consideration by the Parole Board if the administrative law judge

finds that there is probable cause to believe that:

      1. The parolee committed any of the

violations contained in the warrant; and

      2. The warrant was validly issued as to

any of the charges contained within it.

      (d) If the administrative law judge finds

no probable cause, the case shall be referred to the Parole Board which shall

withdraw the warrant and return the parolee to supervision.

      (e)1. If probable cause is found, the

administrative law judge may refer the case back to the Parole Board to decide

whether the warrant should be exercised or withdrawn if:

      a. The parole officer moves for a

referral; or

      b. The administrative law judge finds

that there are overwhelming mitigation factors present that were not known to

the board at the time of the warrant's issuance.

      2. If referred back to the Parole Board,

the administrative law judge may include a recommendation that the warrant be

rescinded. This recommendation shall be advisory only and shall not be binding

on the board.

      3. If the Parole Board decides to

withdraw the warrant, the parolee shall be returned to normal parole

supervision, subject to any additional conditions the Parole Board may impose.

      4. If the Parole Board decides to

exercise the warrant, the parolee shall be ordered returned to the appropriate

institution.

      (2) If a preliminary

parole revocation hearing is held by the supervising state for a parolee being

supervised in another state, and the supervising state concludes as a result of

the hearing that a violation has occurred, the case shall first be reviewed by

an administrative law judge of the board who shall determine whether or not the

proceeding held in the supervising state, and the conclusions reached in the

hearing, complies with due process. After the review, the administrative law

judge shall refer the case to the Parole Board as set forth in Section 1(6) of

this administrative regulation.

 

      Section 5. Waiver of

Preliminary Parole Revocation Hearings. (1) Any parolee charged with a

violation of his parole may waive appearance before an administrative law judge

of the Parole Board and by so doing waive his preliminary parole revocation

hearing. Parolees desiring to waive this hearing shall submit their waivers in

writing to the board or its administrative law judge for approval. These

waivers may be accepted within the discretion of the board or its

administrative law judges. No wavier shall be accepted unless it is found that

the waiver was entered into by the parolee knowingly, and voluntarily and that

the parolee is, and clearly understands that he is admitting guilt as to the

violations charged. Notwithstanding the submission and acceptance of a waiver

of the preliminary parole revocation hearing, the parolee may still submit

evidence in mitigation of his conduct. After approval of the waiver, the matter

shall proceed in the same manner as after a hearing before an administrative

law judge.

      (2) If a parolee being

supervised in another state signs a waiver of preliminary hearing in that

state, this waiver shall be reviewed by an administrative law judge of the

board to determine if the waiver meets the requirements of subsection (1) of

this section. If the administrative law judge determines that the waiver does

not comply with subsection (1) of this section, the executive director shall

refer the matter back to the Division of Probation and Parole and request that

they take action necessary to insure compliance with this administrative regulation.

 

      Section 6. Final

Parole Revocation Hearings. Final parole revocation hearings shall be held

within thirty (30) days after the return of the parolee to a state institution.

At this hearing, the parolee shall have the charges, specified in the warrant,

explained to him and he shall be given the opportunity to admit or deny them.

If the inmate admits to the charges, then the board shall receive proof in

mitigation of the charges. If the parolee wishes to present new or different

information than presented at the preliminary hearing, and shows that this

information could not have been presented at the preliminary hearing, he may

request a special hearing. The grant or denial of a special hearing shall be

totally within the discretion of the board. If granted by the board, a short

deferment shall be given so the special hearing can be scheduled in central

office and the parolee can secure legal counsel. The request for a special

hearing by a parolee shall occur at the beginning of the final parole revocation

hearing, before he admits or denies guilt. The parolee shall be notified of his

right to request a special hearing at his preliminary parole revocation

hearing. It is the responsibility of the parolee, and his alone, to request a

special hearing if he so desires one.

 

      Section 7. Special

Hearings. (1) Special hearings shall be conducted in the central office of the

Parole Board, unless the Parole Board changes the site for security or other

factors it deems pertinent. In cases so heard, if the parole officer or the

parolee requests the issuance of subpoenas to compel the appearance of

witnesses or production of documents, the board shall issue them pursuant to

KRS 439.390, if no claims for expenses incurred by these witnesses shall be

submitted to the board, as it has no authorization to pay these expenses.

      (2) At the special

hearing, the following order of proceedings shall be followed:

      (a) The parolee,

parole officer, and all witnesses shall be sworn in by the Parole Board.

      (b) The board shall

present a short statement of the charges against the parolee.

      (c) The parole

officer shall present proof to substantiate the charges, subject to

cross-examination by the parolee.

      (d) The parolee

shall present proof to rebut the parole officer's charges, subject to

cross-examination by the parole officer.

      (e) The parole

officer may put on any rebuttal proof subject to cross-examination.

      (f) The board may

question both the parolee and the parole officer and any witnesses.

      (g) The board shall

then make a determination as to whether the parolee has violated his parole.

      (h) If the parolee

is found in violation or if he admits the violation and has proof in

mitigation, the board shall receive proof from the parolee in mitigation of the

violation subject to cross-examination.

      (i) At the

conclusion of the special hearing, the board shall make a determination as to

the disposition of the case and notify the parolee in person or in writing as

soon as practical.

 

      Section 8. Waiver of

Final Parole Revocation Hearing. A parolee being held pursuant to a parole

violation warrant may, subsequent to his preliminary parole revocation hearing,

or acceptance of a waiver thereof, request that he be allowed to waive his

final parole revocation hearing. Parolees desiring to waive this hearings shall

submit their waivers in writing to the board. Acceptance of this waiver shall

be totally within the discretion of the board and shall be based only upon a

finding that the waiver is entered into knowingly and voluntarily and that the

parolee is admitting guilt as to the violations charged. Waiver of the right to

the final hearing shall also be considered as waiver of any rights to a special

hearing as provided for in Sections 6 and 7 of this administrative regulation.

In the event that waiver of the final hearing is accepted, the final decision

on the revocation of the parolee's parole shall be made by the board without

any further proceedings. (15 Ky.R. 1190; eff. 12-2-88; Am. 19 Ky.R. 2295; 20

Ky.R. 72; eff. 7-12-93; 21 Ky.R. 2169; 2674; eff. 5-4-95; 27 Ky.R. 3351; 28

Ky.R. 618; eff. 9-10-2001.)
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