Macomber v. Kansas Prisoner Review Bd.

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NOT DESIGNATED FOR PUBLICATION

No. 117,164

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEPHEN ALAN MACOMBER,
Appellant,

v.

KANSAS PRISONER REVIEW BOARD,
Appellee.

MEMORANDUM OPINION


Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed August 18, 2017.
Affirmed.

Martin J. Keenan, of McDonald Tinker PA, of Wichita, for appellant.

Anne Gepford, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and HILL, JJ.

Per Curiam: Stephen A. Macomber's K.S.A. 60-1501 petition was summarily
denied by the district court. Macomber appeals and argues the court abused its discretion
by summarily dismissing his petition without appointing him an attorney and conducting
a hearing. He also argues the actions of the Kansas Parole Board (Board) were arbitrary
and capricious and done out of anger. Because the court was not required to appoint him
an attorney or conduct a hearing, and the Board considered the nonexclusive factors
under K.S.A. 2014 Supp. 22-3717(h)(2) when it denied Macomber's parole, we affirm.

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On July 20, 1987, in Sedgwick County, Macomber was found guilty by a jury of 4
counts of aggravated robbery and 1 count of aggravated battery. He was sentenced to the
Secretary of Corrections (SOC) for a period of not less than 15 years and not more than
20 years for aggravated robbery, a period of not less than 5 years and not more than 20
years for aggravated battery, and for a period of not less than 5 years and not more than
15 years for each of the remaining 3 counts of aggravated robbery. The sentences were to
run consecutive to each other. It was also found that Macomber had used a firearm in the
commission of the crimes.

On December 22, 1992, Macomber pled guilty to aggravated battery in Reno
County. He was sentenced to the SOC for a period of not less than 3 years and no more
than 10 years. This case was to run consecutive to the Sedgwick County case.

Macomber was paroled and while on parole "engaged in a multiday, multicity
crime spree that resulted in multiple charges." Macomber v. KDOC, No. 112,244, 2015
WL 1636899, at *1 (Kan. App. 2015) (unpublished opinion). On June 4, 2010, he robbed
a bank in Nebraska with a handgun and took $7,375. On June 6, 2010, Macomber
returned to Kansas where he murdered a person and fled. The following day he was
stopped by a county deputy. He shot the deputy in the wrist and in the back and stole the
deputy's vehicle. The deputy was injured, but not killed. Macomber then broke into a
woman's home and held her hostage until he was captured by law enforcement.

On June 8, 2010, Macomber was arrested in Kansas based on a Kansas
Department of Corrections (KDOC) order to arrest and detain him. The order alleged
three violations of parole including the homicide, possession of a weapon, and shooting a
person. He was held in the Riley County jail. In Marshall County, Kansas, Macomber
was first convicted by a jury of attempted first-degree murder, aggravated battery on a
law enforcement officer, aggravated robbery, aggravated assault on a law enforcement
officer, and criminal possession of a firearm. In his second Marshall County case,
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Macomber was convicted by a jury of kidnapping, aggravated battery, aggravated assault,
possession of a firearm, and criminal threat. In Nebraska, Macomber was charged with
felony robbery and felony use of a deadly weapon to commit a felony.

On June 11, 2011, Macomber was transferred to the Shawnee County
Jail. On January 1, 2012, after a third jury trial, Macomber was convicted of murder in
the second degree (later reduced to involuntary manslaughter) and criminal possession of
a firearm. He was transferred to the El Dorado Correctional Facility on March 28, 2012.

On June 12, 2012, the Board conducted Macomber's parole revocation hearing.
The Board revoked his parole and cited 14 law violations. Specifically, the Board found
Macomber had committed

"first-degree murder, criminal possession of a firearm, robbery, use of a deadly weapon
to commit a felony, attempted murder in the first degree, aggravated battery on a law
enforcement officer, possession of a firearm by a felon, burglary of a motor vehicle, theft,
kidnapping, aggravated burglary, aggravated assault, possession of a firearm by a felon,
and criminal threat." 2015 WL 1636899, at *2.

The Board set his next parole consideration for 2015.

Macomber filed a K.S.A. 60-1501 petition and alleged he was unlawfully
restrained in Butler County and claimed his parole revocation was wrongful. On April 3,
2015, the Macomber court found the record revealed Macomber's claim had no merit and
affirmed the Board. 2015 WL 1636899, at *10.

On May 14, 2015, the Board held a hearing on Macomber's parole. The Board
denied him parole and deferred the next parole hearing to June 2020. The Board passed
on granting Macomber parole because of the serious nature and circumstances of his
crimes, his history of criminal activities, the violent nature of his crimes, and his failure
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to be successful on parole. In addition, the Board stated it deferred the next parole
hearing for 5 years because the "community has been exceedingly opposed to the
inmate's release," and he "has established a pattern of offending behavior that indicates
escalating violence."

Macomber filed a second K.S.A. 60-1501 petition on July 17, 2015. He argued the
Board violated his due process rights to have a neutral and detached hearing by
"arbitrarily and capriciously passing the petitioner for an extended period of 5 years," and
the Board had violated his right to petition the government for redress of grievances,
guaranteed by the First Amendment of the United States Constitution by arbitrarily
passing him for an extended 5-year period.

On June 15, 2016, the district court summarily denied Macomber's petition. The
court stated Macomber had offered no proof beyond his conclusory allegations. It noted
that a previous adverse ruling does not in itself indicate prejudice or a conflict of interest.
Further, the court found the Board specifically cited to two compelling factors for
denying Macomber parole—the community's opposition to his release and his "obvious
pattern" of escalating violence.

On appeal, Macomber argues the district court abused its discretion by summarily
dismissing his petition without appointing him an attorney and conducting a hearing. He
also argues the actions of the Board were arbitrary and capricious and done out of anger.

Macomber states his argument is that the district court erred in summarily denying
his K.S.A. 60-1501 petition without appointing him an attorney and conducting a hearing.
However, in his brief he argues the actions of the Board were arbitrary and capricious
because it "rubber stamped" an additional 5 years onto his sentence without considering
the fact that the violent nature of his crimes had been mitigated. Further, he states a
member of the Board was angry and mocked him for filing a previous lawsuit against the
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board member and, therefore, the Board acted out of anger and not out of a sense of
justice. While Macomber never briefed the issue regarding the appointment of counsel or
a hearing, it will be briefly addressed.

"To avoid summary dismissal of a K.S.A. 60-1501 petition, the petitioner's
allegations must be of shocking and intolerable conduct or continuing mistreatment of a
constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). Even if
a petitioner claims the deprivation of a constitutional right, K.S.A. 2016 Supp. 60-
1503(a) requires summary dismissal "[i]f it plainly appears from the face of the petition
and any exhibits attached thereto that the plaintiff is not entitled to relief." Hogue v.
Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). "In determining if this standard is met,
courts must accept the facts alleged by the inmate as true." 279 Kan. at 850. This court
exercises unlimited review of a summary dismissal. Johnson, 289 Kan. at 649.

An inmate may file a writ of habeas corpus under K.S.A. 60-1501 to seek review
of a final order of the Board. Swisher v. Hamilton, 12 Kan. App. 2d 183, 185, 740 P.2d
95 (1987). "However, because parole is a privilege, a matter of grace exercised by the
[Board], this court's review of the denial of parole is limited to whether the [Board]
complied with applicable statutes and whether its action was arbitrary and capricious."
Payne v. Kansas Parole Board, 20 Kan. App. 2d 301, 307, 887 P.2d 147 (1994).
Arbitrary is defined as without adequate determining principles and not done or acting
according to reason or judgment. Robinson v. City of Wichita Employees' Retirement Bd.
of Trustees, 291 Kan. 266, 271, 241 P.3d 15 (2010). Capricious is defined as changing
apparently without regard to any laws. 291 Kan. at 271.

The standard just stated for a K.S.A. 60-1501 petition does not require the
appointment of counsel or a hearing. See Johnson, 289 Kan. at 648-49; see also Payne,
20 Kan. App. 2d at 307-08. Therefore, Macomber's argument that the Board erred when
it denied him counsel and a hearing has no merit.
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Macomber also claims the Board acted arbitrarily and capriciously and acted out
of anger instead of a sense of justice. K.S.A. 2014 Supp. 22-3717(h) states that the Board
"shall consider . . . all pertinent information regarding such inmate." The statute provides
a nonexclusive list of pertinent information. K.S.A. 2014 Supp. 22-3717(h)(2). The list is
nonexclusive because the statute says that the Board's consideration must include, but is
not limited to, review of the factors in the list. K.S.A. 2014 Supp. 22-3717(h)(2). By
providing a nonexclusive list of factors, the legislature gave the Board discretion to
determine when information is pertinent. Denney v. Kansas Prisoner Review Board, No.
116,532, 2017 WL 1035566, at *2 (Kan. App. 2017) (unpublished opinion).

Here, the Board stated it denied Macomber parole because of the serious nature
and circumstances of his crimes, his history of criminal activities, the violent nature of his
crimes, and his failure to be successful on parole. In addition, the Board stated it deferred
the next parole hearing for 5 years because the community had been exceedingly opposed
to the inmate's release, and he had established a pattern of offending behavior that
indicated escalating violence. The Board considered the circumstances of his offense, his
criminal record, and comments of the public. See K.S.A. 2014 Supp. 22-3717(h)(2).

Macomber argues the Board should have considered that his most serious
conviction for second-degree murder was reduced to involuntary manslaughter. In
addition, he states other convictions and charges were vacated and dismissed. However,
in Heath v. Kansas Parole Board, No. 109,813, 2014 WL 113476, at *5 (Kan. App.
2014) (unpublished opinion), the court found the Board had properly considered pertinent
information about Heath's offense even though the Supreme Court had vacated the child
abuse sentence. Specifically, the Heath court stated the Board was not required to ignore
those circumstances just because the offense was vacated. 2014 WL 113476, at *5.

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Macomber further argues the Board punished him for filing various actions against
it. The scope of review of the Board's decisions by the courts is limited to reviewing
whether the Board complied with the statutory requirements. Torrence v. Kansas Parole
Board, 21 Kan. App. 2d 457, 459, 904 P.2d 581 (1995). Therefore this is not an issue
within the scope of the court's review. 21 Kan. App. 2d at 459.

The Board properly considered the nonexclusive factors under K.S.A. 2014 Supp.
22-3717(h)(2). The district court is affirmed.

Affirm.