Spry v. Kansas Prisoner Review Bd.

1

NOT DESIGNATED FOR PUBLICATION

No. 118,993

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GEORGE SPRY,
Appellant,

v.

KANSAS PRISONER REVIEW BOARD,
Appellee.

MEMORANDUM OPINION


Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed October 19,
2018. Affirmed.

Matthew L. Tillma, of Law Office of Gregory C. Robinson, of Lansing, for appellant.

Bryan Ross, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: The Kansas Prisoner Review Board (Board) passed on George
Spry's parole decision for five years. Spry petitioned for a writ of habeas corpus, arguing
the Board's decision was arbitrary and capricious. The district court dismissed Spry's
habeas petition because he only challenged one of three reasons for the Board's decision
to pass, and he only challenged one of the three reasons the Board extended its decision
for five years. Spry now appeals. We affirm.

A jury convicted George Spry of premediated first-degree murder for sneaking
into the home of Barbara Chaffe, his ex-girlfriend, and repeatedly bludgeoning her with
2

an ax while she was in bed late at night. State v. Spry, 266 Kan. 523, 524-26, 973 P.2d
783 (1999). The evidence at Spry's trial indicated all of his ax strikes to Chaffee were
lethal except one and it was unclear whether Spry's first strike was the killing blow. The
district court sentenced him to a hard 40 years term of imprisonment. The Kansas
Supreme Court affirmed Spry's conviction but reversed and remanded his hard 40
sentence for resentencing, finding insufficient evidence to prove beyond a reasonable
doubt he inflicted serious mental anguish or serious physical abuse before Chaffee died.
266 Kan. at 534-36.

In 2016, the Board passed his parole decision for five years and recommended
Spry remain free of disciplinary reports and gain insight into his offending behavior. The
Board listed three reasons for passing Spry's parole: the serious nature and circumstances
of his crime; the violent nature of his crime; and Spry denied responsibility for murdering
Chaffee. The Board extended Spry's pass for five years because:

"[Spry] has been sentenced for a class A or B felony, or an off-grid felony, and the
Board makes a special finding that a subsequent parole hearing should be deferred for 5
years, because it is not reasonable to expect that parole would be granted at a hearing if
held before then for the following reasons:
"[Spry] does not have a parole plan to meet his needs or to provide for public safety.
. . . .
"[Spry] has not demonstrated the ability to work on the areas needed to reduce his risk to
re-offend.
"The length of the pass will allow [Spry] sufficient time to work on the areas necessary to
reduce his risk to re-offend."

Spry requested the Kansas Department of Corrections (DOC) reconsider but the
agency denied Spry's reconsideration. He then filed a petition for a writ of habeas corpus,
claiming the Board's decision was arbitrary and capricious. He alleged the Board erred in
finding his crime was violent because of the Kansas Supreme Court findings in his direct
3

appeal. He also claimed the Board erred because it denied parole for lack of a parole plan
but other DOC regulations require the Board to provide a parole plan after granting
parole. Spry did not address any of the other reasons the Board passed and extended his
parole decision for five years. The State moved to dismiss Spry's habeas petition. After
hearing the matter, the district court dismissed Spry's petition, finding the Board did not
err because it provided other adequate reasons to pass his parole decision.

Spry appeals.

When a district court provides an alternative basis to support its ultimate ruling on
an issue and an appellant fails to challenge the validity of both alternative bases on
appeal, an appellate court may decline to address the appellant's challenge to the district
court's ruling. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247,
280-81, 225 P.3d 707 (2010). Similarly, an issue not briefed by the appellant is deemed
waived or abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259
P.3d 676 (2011).

The Kansas Court of Appeals may decline to review Spry's claims because he does
not challenge the district court's findings in his appeal. See Kansas Bankers Surety Co.,
290 Kan. at 280-81 (declining to address the merits of an appellant's challenge because
the district court provided alternative bases for its ruling); Kimball, 292 Kan. at 889
(finding an issue not brief is waived or abandoned). In his habeas petition, Spry only
challenged the Board's first finding—he committed a violent crime—and one reason the
Board extended his parole decision for five years—he did not have a parole plan in place.
In dismissing Spry's petition, the district court relied on the other two reasons the Board
passed his parole—Spry denied responsibility for murdering Chaffee and his crime and
its circumstances were serious. On appeal, Spry does not argue against the district court's
findings that there were two other sufficient reasons to pass on the parole decision.
Therefore, he has abandoned the reasons for the district court's dismissal of his habeas
4

petition and the Kansas Court of Appeals may decline to review this matter. See Kimball,
292 Kan. at 889. Additionally, the court may affirm the district court's findings as
alternative bases. See Kansas Bankers Surety Co., 290 Kan. at 280.

To state a claim for relief under K.S.A. 2017 Supp. 60-1501, a petition must allege
"shocking and intolerable conduct or continuing mistreatment of a constitutional stature."
Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). An appellate court reviews a
district court's decision on a K.S.A. 60-1501 petition to determine whether the district
court's factual findings are supported by substantial competent evidence and are sufficient
to support the court's conclusions of law. The district court's conclusions of law are
subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004); Hooks v.
State, 51 Kan. App. 2d 527, 530, 349 P.3d 476 (2015). When reviewing a denial of
parole, an appellate court is limited to whether the Board complied with the applicable
statutes and whether its decision was arbitrary and capricious. Hearst v. State, 30 Kan.
App. 2d 1052, 1057, 54 P.3d 518 (2002). 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.

Kansas law requires the Board to consider a nonexhaustive list of factors before
deciding whether to grant or pass parole, including "the circumstances of the offense of
the inmate . . . the conduct, employment, and attitude of the inmate in prison . . . ." K.S.A.
2017 Supp. 22-3717(h)(2). If the Board decides against granting parole to the inmate, it
must provide its reasoning in writing to him or her. K.S.A. 2017 Supp. 22-3717(j)(1). For
class A, B, or off-grid felonies, the Board may hold another parole hearing within three
years unless it finds it is unreasonable to expect parole would be granted within the next
10 years. K.S.A. 2017 Supp. 22-3717(j)(1). In such a case, the Board may defer its parole
5

decision for up to 10 years but it must state the basis for doing so. K.S.A. 2017 Supp. 22-
3717(j)(1).

Kansas courts have described parole as "'a privilege, a matter of grace, and no
constitutional right is involved.'" Johnson v. Kansas Parole Bd., No. 99,552, 2008 WL
4239117, at *1 (Kan. App. 2008) (unpublished opinion) (quoting Johnson v. Stucker, 203
Kan. 253, 257, 453 P.2d 35, cert. denied 396 U.S. 904 [1969]). The Kansas Court of
Appeals has upheld a denial of parole when the Board passed an inmate's parole decision
due to the serious nature and circumstances of his crime. Torrence v. Kansas Parole Bd.,
21 Kan. App. 2d 457, 459, 904 P.2d 581 (1995) (citing Gilmore v. Kansas Parole Board,
243 Kan. 173, 175-76, 756 P.2d 410, cert. denied 488 U.S. 930 [1988]). The court has
also upheld the Board's denial of parole when the Board found the violent nature of an
inmate's crimes is the reason to pass his parole. Galloway v. Kansas Parole Bd., No.
110,637, 2014 WL 2229548, at *1-2 (Kan. App. 2014) (unpublished opinion). In
addition, the Kansas Court of Appeals has found a Board's decision for an extended pass
is legally sufficient because an inmate needed continued structure, community resources
could not provide sufficient support to meet those needs, and the extension was necessary
for public safety. Johnson, 2008 WL 4239117, at *1-2.

The district court did not err in dismissing Spry's habeas petition. The Board
appropriately provided three reasons for passing Spry's parole as required under K.S.A.
2017 Supp. 22-3717(h)(2). First, it passed Spry's parole because of the serious nature and
circumstances of his crime, a legally sufficient finding. See Torrence, 21 Kan. App. 2d at
459. The Board also passed on Spry's parole because he denied responsibility for
murdering Chaffee. This finding is consistent with the Board's requirement to weigh
Spry's attitude. See K.S.A. 2017 Supp. 22-3717(h)(2). For those reasons alone, the
Board's decision to pass on Spry's parole was not arbitrary or capricious.

6

Spry also claims the Board's decision to pass on his parole because his crime was
violent is an arbitrary and capricious decision because the Kansas Supreme Court found
his crimes were not violent in his direct appeal. However, Spry misstates the Kansas
Supreme Court's findings in his prior appeal.

At issue in his direct appeal was whether Spry's murder of Chafee was "especially
heinous, atrocious, or cruel," an aggravated finding necessary to impose Kansas' hard 40
sentence. (Emphasis added.) 266 Kan. at 531. As the court noted "[a]ll murders are
heinous, atrocious, and cruel" but only those that inflicted "'serious mental anguish or
serious physical abuse before the victim's death'" were subject to a hard 40 sentence. 266
Kan. at 531. Spry repeatedly struck Chafee in the back of her skull and neck with an ax
while she was face down in her bed in the middle of the night. However, the evidence at
trial indicated all but one of the numerous blows was fatal. There was no evidence
Chaffee was awake when Spry murdered her or she was aware he used an ax to do so.
The Supreme Court ultimately concluded there was insufficient evidence to find beyond a
reasonable doubt Spry caused Chaffee to suffer serious mental anguish or physical abuse
before she died. 266 Kan. at 534-36. The Spry court never determined Chaffee's murder
was nonviolent. The facts of the case indicate Spry's crime was extraordinarily violent.
"Chaffee's neck was fractured and her skull was completely ruptured." 266 Kan. at 527.
Addressing its difficult decision, the court acknowledged "society's image of an ax
murder rises above most other forms of murder on a scale of depraved behavior." 266
Kan. at 534.

Given that Spry's murder of Chaffee was extraordinarily violent, and an act society
views as depraved behavior, the Board's decision to pass Spry's parole because his crime
was violent was not arbitrary or capricious. See Galloway, 2014 WL 2229548, at *1-2.
Instead, the Board's decision is supported by the facts relied upon by the Kansas Supreme
Court in Spry. 266 Kan. at 527.

7

Spry's only other argument is the Board acted arbitrarily in telling him he needed a
parole plan, but in separate regulations he would be given a parole plan only when
granted parole. According to Spry, "[i]f the board's decision was based on an arbitrary
factor then there is no way to determine that the entire decision was not arbitrary."
(Emphasis added.) Spry does not support this claim with any pertinent authority and the
Kansas Court of Appeals may affirm the lower court's and Board's decisions. University
of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d
602 (2015).

The Board provided other sufficient reasons for the length of Spry's pass—he did
not demonstrate he worked to reduce his risk of reoffending and he would have five years
to complete such work. Given his risk of reoffending endangers the public, the Board
provided sufficient legal reasons for Spry to remain incarcerated and reduce that risk. See
Johnson, 2008 WL 4239117, at *2.

Affirmed.