# FILED
May 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk ROBERT C. DANIELS, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1814-III ) VS. ) ) CHARLES TRAUGHBER, Chairman, ) Appeal No. TENNESSEE BOARD OF P AROLES, ) 01A01-9707-CH-00297 ET AL., ) ) Defendants/Appellee

s. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE ELLEN HOBBS LYLE, C HANCELLOR

David L. Raybin, #3385 HOLLI NS, WAGSTER & YARBR OUGH, P.C. 2210 SunTrust Center, 424 Church Street Nashville, Tennessee 37219 Joe Binkley, Sr., #2820 First American Center 315 Deaderick Street Suite 2395 Nashville, Tennessee 37238-2395 ATTORNEYS FOR PLAINTIFF /APPELLANT
Patricia C. Kussman, #15506 Cordell Hull Building, Second Floor 425 Fifth Avenue

South Nashville, Tennessee 37243-0488 ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

ROBERT C. DANIELS, ) ) Davidson Chancery Plaintiff/Appellant, ) No. 96-1814-III ) VS. ) ) CHARLES TRAUGHBER, Chairman, ) Appeal No. TENNESSEE BOARD OF P AROLES, ) 01A01-9707-CH-00297 ET AL., ) ) Defendants/Appellee

s. ) 

## O P I N I O N

The plaintiff, a priso

ner in the custody of the Department of Correction, filed in the Trial Courta petition for the writ of certiorari from the action of the Board of Paroles on April 18, 1996, rescinding its or

der of April 9, 199

4, granting the

prisoner a parol

e. At the tim

e of the

res cis sio n, t he p ris one r had not been rel ease d fr om c ust ody.

On July 27, 1989, th

e prisoner was c

onvicted of seco

nd degree mu

rder in the death of Sylvia Coakley and sentenced to serv e thirt y-five years in the custody of the Tennessee Department of Correction.

Byletter dat ed November 27, 1989, the parents of the victim, requested the Board of Paroles to notify them of any hearing by the Board in respect to the release of the prisoner

.

By letter dated January 21, 1994, co uns el for the parents notified the Board that he represented

the parents of the

victim; that they str

ongly opposed any early rele

ase of the prisoner; and that he desired to be notified of any hearing on the subject of the release of the prisoner.

On April 9, 1996, the board held a hearing regarding the release of the prisoner. The Board attempted to notify the parents of the victim, but the letter was not delivered because the parents had move

d from the addres s furnished by them.-3- No eff ort was made to noti

fy counsel o

f the parents of t

he victim as reque

sted by him, although his correct mailing address was on file with the Board.

On the same date, the Board approved the early release of the prisoner effective July 15, 1996. The prisoner was still in custody when the Board next acted on April 18, 1996.

On April10, 1996, Honorab le Cheryl B lackburn, Assista nt Attorney G

eneral, wrote

the Board protesting the meeting and action of the Board without notification to her and reminding the Board of the strong opposition of her office to any ea rly release of the prisoner.

On A pril 18, 1996, the Board met again, heard the parents of the victim and rescinded its April 9, 1996, action.

On June 14 , 1996, the present sui t was filed seeking: Immediate

injunc tive relief, common la w writ of certior

ari, FederalCivil Rights violation under 42 USC § 1983, both for money damages and for prospective injunctive relief.

The Trial Court he ard the matter without a jury and, on June 24, 1997, filed a Memorandum and Order st ating:

This matter is before the Court on the plaintiff’s request for issuance of a writ of

certiorari. The premise of the request for the writ is that the defendant members of the Board of Paroles (“B oard”) acted fraudulently, illegally or arbitrarily in g ran ting the plaintiff parole on April 9, 1996, andthen subsequently rescinding the grant of parole on April 18, 1996. The defen dants deny that there are grounds for the issuance of the writ. They assert that they a ct ed pu rsuant to applicable

statutes and rule

s. The defendants argue that they acted legally and that the rescission of parole was reasonable. Having considered

the entire record

and the argument of counsel and having carefully studied this matter, the Court determines that the plaintiff has failed to carry his burden in dem onstrating his entitlement to issuance of a writ of certiorari.For

the reasons set forth below, the Court-4- determines that the application for w rit of certiorari shall be denied. Facts The re cor d before the Court reveals that the plaintiff was convicted of second degree murder of his former wife and was sentence

d to thirty-f

ive years i

mprisonment on July 27, 1989. Duri ng th e seven and one-half years the plaintiff was confined, he had a good institu tional record and was accorded truste

e status. A parole r elease

hearing was conducted on April 9, 1996. The plaintiff’s application for parole was supported by re com mendations from two assistant wardens, other prison personnel,and friends. The h ea ring officials u nanimously recommended

that the plaintiff be released on July 15, 1996 on parole. Subsequent

to the April 9, 1996 hearing, the victim’s family complained to the B oard that neit her th ey nor their attorney/representative

hadbeen notified of

the April 9, 1996 hearing. The Assistant District Attorney Ge neral, who had prosecuted

the case against the plaintiff, also complained that she had failed

to receivenotice of t he April 9, 1996 hearin g. The record reveals that notice of the April 9, 1996 hearing was mailed to the vi ctim’s famil

y, but that they did notreceive the notice because they had m ove d and had not sent th eir new address to the Board. The family, however, hadrequested that their attorn ey, Larry Roberts, receive notice of parole hearings. Filed with the Cour t by the defe

ndants is a letter dated January

21, 1994 from Mr. Rob

erts stating, “M

y clients strongly oppose any ear ly release date for

Mr. Daniels, andI would ask that

you notify

me of any hearing of any

thing which could result in Mr. Daniels’ release from confinement [emphasis added].” The record reveals that the Board failed to notify Mr. Roberts of the April 9 , 1996 hearing. The record further establishes that notice was mailed to the office of the District Attorney but for some reason the District Attorney who handledthe case , Ju dge C heryl Blackburn, did not receive the notice. Thereafter, written victim impact statements were received by the Bo ard, and on April 18, 1996, a parole rescission heari ng wa s held. The victim’s aunt and cousins testified regarding the impact of the crime on the victim’s fam ily. The victim’s mother testified regarding the impact of the cr ime on the victim’s family. The victim’s mother testified, attributing a stroke her husband suffered and

that her son sustained cirrhosis of the liver to the crime. Th e sa me three Board members, Traughber, Hill and Chase, unanimously

voted to re s cind the plaintiff’s parole. The stated reasons were, “Declined; Review 4/99; Seriousness of Offense; Impact on Victim’s Family.”-5- The plaintiff then filed a

request for appeal of the final decision of the April 18, 1 996 hearing. The appeal was deniedon May

7, 1996 on the grounds that the request did not meet any of the established criteria for granting an appeal hearing. Subsequent

to rescissi on o f his parole, the plaintiff was i mmed iately tran

sferred from a

minimum security faci lit y, Nashville

Community Service

Center, to a maximum security facility, Middle Tennessee Re ception Center. Conclusions of Law To be entitled to a wr

it of certiorari, the plaintiff must demonstrate that th e action of the B oard was illega l, frau dul ent or ar bit rary: Under common la w writ of certior ari, questions of law only w

ill be reviewed

by the courts. An action of an administrative agency which is not supported by any eviden

ce is arbitrary andmay be quashed on common law writ of certiorari.

Whether or not ther

e is any material evidence to support the action of the agency is a question of law to be deci ded b y the reviewing court upon e xamination of the evidence intro duc ed before the agency. Any additional evidence offe

red to the revie

w ing court is limited to the question of whether the ag ency exceeded its jurisdiction, or acted frau dul ent ly, i lle gall y or ar bit rari ly. Watts v. Civil Service Board for Columbia , 6065 S.W.2d 274, 276-77 (Tenn. 1980). In the case at bar , the plaintiff ass erts that the writ i

s appropriate

because the informat

ion prese nted to the Board on Apr il 18, 1996 was no diff erent from the inf

orma tio n considered

by the Board on April19, 1996. The plaintiff argues that the Board wa s in fluenced by media and popular opinion concerns, and that those concerns caused the Board to arbitrarily rescind the plaintiff’s parole. T he defendants concede that if there were no differences between the evidence presented at the parole grant hearing and that

pr esented at the parole rescission hearing th en it wou ld have been arbitrary for the Board to have rescinded the plaintiff’s parole because t here wou ld have been no evidence to support the Board’s decision. The def endants, however, point to several differences betwee n the April 9, 1996 hearing an d the April 18, 1996 hearing which differences they

assert support the decision to rescind parole. Fir st, the defendants note that the victim’s aunts and cousins were pre sent at the April 18, 1996 hearing and that the live testimony

of these individuals,as well as their bearing-6- anddemean or, greatly distinguished the April 18, 1996 hearing from the April 9, 1996 hearing. The defendants point outthat the victim’s mother t esti fied that her husband, the victim’s father, was now in a nursing home suffering from a stress related stroke due to the death of their daughter, and that their son suff

ered from cirrh

osis of the liver as

a result. The defendants furt

her assert tha t Ju dge C heryl Blackburn, the former Assistant District Attorney who prosecuted

the p la intiff, was present at the April 18, 1996 hearing and pointed out discrepancies in the plaintiff’s testimonyat the A pril 9, 1996 parole hearing and testimony from his trial. At the April 9, 1996 parole h earing th e plaintiff had described a

n altercation wit

h his former wife

in which he characteri

zed that h e “wrestled ” with her. J udge Blackburn

read parts of the transcript from the plaintiff’s criminal trial which established that the plaintiff had bounced the victim’s head off of the ground, had bitten her, an d that she had sustained a

large bruise on her left arm, a swo lle n eye and abrasions on h

er right and lef

t shoulders. Based upon the foregoi n g, the Court concludes that the plaintiff has failed

to carry hi

s burden in demonstr

ating his entitlement to a wr

it of certiorari

. First , the Boar d di d no t ac t fr aud ule ntl y, il lega lly o r arbitrarily in scheduling a second hearing to rec onsider its April9, 1996 d eci sion to grant parole. Tennessee Code Annotatedsection 40-28-505(b) p rovides that at leas t fourteen days prior to a scheduled parole hearing, the Board is to notify the victim or the victim’s representative of the date and place of the parole hear

ing. If the B oard fail s to gi ve the required notice to the victim, the Board shall consider any written victim impact statemen t submitted within fifteen days after the parole decision has been finalized. If the Board determines that

the impact statement warrants a ne w hearing, the Board shall schedule such a hearing with notice to the parties listed in the statut e. Ten n. Code Ann. § 40-28- 505(d)(2). Any no tice required to be pr ovided to the victim or the victim’s representative is to be mailed to the last known addres s. T enn. Code Ann. § 40-28-505(e). “It is the responsibility

o f t he victim or the vic

tim’s representa

tive to provide the Board a current mailing address.” Id. The C ourt finds, since the victim’s family had requested that attorney

Larry Roberts be notifie

d of parole matters and since attorney Robe rts formally notified the Boardof this request by letter dated January 21, 1994, that attorney Larry Roberts qualifies under section 40 -28

- 501(b)(4) as a “victim’s representative who has requested notice of the date and place of the scheduled hearing” so as to warrant the Board sending him notice of the April 9, 1996 hearing. When the Board failed to send notice to attor ney Roberts, that failure triggered the provisions of section 40-28- 505(d), providing for a new hearing upon receipt of a written impact statement from

a victim’s family. The

record revea

ls-7- that such a statement w

as received by

the Board. The Co

urt, therefore, concludes tha t th e Boa rd p roce eded lega lly, correctly and validly pursuant

to section 40-28-50

5 in scheduling a new hearing upon receiving

a writte n i mpact statement from the victim’ s f

amily subsequent to the failure of the Board to notify the representative of the victim’s family, attor ney Larry Roberts, of t he April 9, 1996 hearin g. With respect to the decision to rescind the plaintiff’s parole based on differences between the April 9, 1996 hearing andthe April 18, 1996 hearing, the Court finds that the Board reasonably

c ou ld have found the plaintiff’s testimony at the April9, 1996 hearing describing the July 13 alterc

ation with his former wife misleading. The plaintiff describes t he altercationas “wrestling” with his former wife. The details of that altercation as in

dicated in the trial transcript

were that the plaintiff had bo unced th e victim’s head off the ground, had bitten her and that she had sus tained a lar ge bruise on her left arm, a swollen l eft eye and abrasions on her right and left shoulders. As to the substantiality of live testimony, the Courtconcludes that observing the demeanor of witnesses as wellas heari ng th eir testimony could lead to a different conclusion about the impact of a crime on a family than j ust reviewing written information. The choice to

grant or deny

parole involves a

personal observation filt ered t hrough the experience of the decision maker and leading to apredictive judg ment as to what is be

st bothfor the individu al inm ate and for the com mun ity. Greenholtz

v. Inmates of the Nebraska Pen al and CorrectionalComplex , 442 U.S. 1, 7-8, 9 9 S.C t. 210 0, 60 L. Ed.2 d 68 8 (1979). A determination of whether to release a partic ular inmate on parole “must include consideration of what the entire record shows up t o the time of the sentence, including the gr avit y of the offense in that particular case.” Id. at 442 U.S. at 15. The Court finds that the combination of live testimony from the victim’s family

as well as the discrepancy between the plaintiff’s testim

ony at the Ap

ril 9, 1996 of his altercation withhis former wife and the facts of that altercation establishedat t

rial are substantial e

nough distinctions

to support the Board

changing its decision regarding parole and, therefore, that the c hange in the dec ision regarding

parole from the April

9 h earing to the April 18 hearing was not arbi tra ry. It is, therefore, ORDERED that the p l aintiff’s application for writ of certiorariis denied. Costs are taxed to the plaintiff. On appeal, the pr

isoner presents t

he following issu

es: 1. W hether the Board’s rescission of Mr. Daniels ’ parole was in violation of the due process pro vi sions of the United States and Tennes see Constitutions, sp ecific-8- Tennesseestatues, and th e Parole Board’s own rules and regulations. 2. Whether

the Board’s rescission of parole was arbi trary andillegal given that the “seriousnes s of the offense” could not form the basis of a parole rescission. 3. Whether

the provisio

ns of T.C.A. § 40-28-505 contemplate

that an attorney for the family of a pe rson who was killed, cons tit utes a “statutory victim” for purposes of parole hearing notification where the family has already requested notification but has failed to keep the Parole Board advised of their c

urrent address a

s the statute requ

ires.
The Board expre

sses the issues as f

ollows: Tennessee law provides that a common law writ

of certiorari will issue when a n agency action has been illegal or is not supported by an evidence. The Board of Paroles scheduled a second parole he

aring for the a

ppellant after h

earing that his victim’s family had not received notice of his

initial h earing. After holding a second hearing where his victim’s family was permitted to protest his release, the Board rescinded the appellant’s grant of parole. The issues prese nted on appeal are: 1. Whether

rescinding the appellant’s parole violated state and federa

l c onstitutional gua

rantees of due p

rocess, Tenn. Code Ann. § 40-28-505, and/or theRules of the Board of Paroles; This statute

provides that if the Board fails to provide advance notice of a scheduled parol

e hearing to a

victim or victim’s representative, the Board may

schedule a subsequent hearing if a written victim imp

act statement wa

rrants it. 2. Whether

testimony from the victim’s family at the secondhearing constituted “pertinent information notavailable a t the time o f the [firs t] hearing” sufficient to justify parole rescission; and 3. Whether

Tenn. Code An n. § 40-28-505 permits a vic ti m to request notification of scheduled paro le h eari ngs t hro ugh a n at tor ney.

Applicable Law T.C.A. § 40-28-117

provides in pertin

ent part as follow

s:-9- 40-28-117. Grounds f or parole - T erms . (a) P arole being a privilege and not a right, no prisoner shall be re leased on parole merely as a reward for good co nduct or efficient performance

of duties assigne

d in prison, but only if the board is of the opinion that t

here is reasona

ble probability

that such prisoner, if released, wil

l live and remain a

t l ibe rty without violating the law, and that the prisoner’s release is not inc omp ati ble wit h th e wel fare of s oci ety. T.C.A. § 40-28-505

provides in pertin

ent part as follow

s: (b) At least thirty (30) days p rior to a sch edu led paro le h eari ng an d th ree ( 3) d ays prior to a parole revo cation hearing, the bo ard shall send a no

tice of the date and place of the

hearing to the f

ollowing individua

ls: (1) The trial judge for the court in which the conviction occurred, or the trial judge’s successor; (2) T he district attorney general in the c

ounty in which the crime was prosecuted; (3) The sheriff of the c ounty in whic

h the crime was committed; and (4) The victim or the victim’s representativewho has reque sted not ification of the date and place of the scheduledhearing and/or

notice of the board’s final decision.

- - - - ( c) No later

than thirty (30) days after a parole or parole revocationdecision has beenfinalized, the boa rd shall send notice of

its decision to those required to receive notice under su bse ction (b), toget

her with notice tha

t any victim whomthe board failed to notify as required in subsection (b) has the opportunity to have a written victim impact statement considered by the board, pursuant to subsection (d).

- - - - (2) If within fifteen (15) days after a parole or a parole revocation decision has been fi nalized, the board receives a written vic

tim impact statement f

rom a party

to whomthe bo a rd failed to provi de the notice req

uired in subsection (b), th

e board shall

consi der th e stat ement . If the boardfinds that t

he victim impact statement warrants a new hearing, it shall schedule such a hearing, sub jectto all notification requirements under subsection (b).
T.C.A. § 40-28-503

reads as follows: 40-28-503. Attendance policie s - Standard victim notification form

. (a) The board sh all establish a poli cy governing attend ance at board hearings and submission and use of victim impact statements . Copi es of the policy shall be available upon request. The policy shall govern:-10- (1) The requirement th at those requesting notification of parole

and parole

revocation hearings keep the boardadvised of their current addresses and telephone numbers; (2) Instructions for attending and participating in parole and paro

le revocation he

arings; (3) The limitations on attend ance as set fort

h in § 40-28-502; (4) Reasonable

limitations on oral presenta tions; and (5) Information about board discr

etion to investigate vic

tim impact statemen

ts. (b) The b oard shall

establish a standard victi m notification form. The board s hall distrib

ute cop ies of such forms to the victim witness coor dinatorin each judicial districtfor the state who shall make copies of the form available to the appropriate persons. [Acts 1993, ch. 336, § 3.]
Under the common law writ of certiorari, the reviewing court is limited to the inquiry of whether the administrative agency acted fraudulently, illegally or arbitrarily. Watts v. Civil Se

rvice Board for Colu

mbia , Tenn 1980, 606 S.W.2d 274.

Nothing is found in this record to indicate that the B oard acted fra udulently, il

legally

or ar bit rari ly.

A prisoner has no c

onstitutional or inhe

rent right to

conditional rele

aseprior to the expiration of a valid sentence. Grienholtz v. Inmates of Nebraska, Penal and Correctional Complex , 442 US1, 99 S.Ct. 2100, 60 L.Ed. 2d 668 (1979); Kaylor v. Bradley , Tenn. App. 1995, 912 S.W.2d 728.

The p aro le of prisoners r ests solely w

ithin the discretio

n of the Board of

Paroles. Wright v. Tramm

ell , 6th Cir. 1987, 810 F.2d 589.-11- A prisoner

possesses no protected liberty interest in a unilaterally e xpected release. Jago v. Van Curen , 454 US 14, 102 S.Ct., 70 L.Ed.2d 13 (1981).

A pris oner’s right to e

arly rele ase must be found in

the State Statutes a

nd Rules o f the Board. Wells v. Tennessee Board of Paroles , Tenn. App. 1995, 909 S.W.2d 826.

Nothing is found in this recor d to indicate that any constitutional or inherent right of the prisoner has been violated.

The prisoner compl ains that the Board he ard evidence f

rom the victims tend

ing to exacerbate the seriousness of his offense.

The administrative record contains a hand written summary

of the evidence received by the Board at t he April 18 , 1996 heari ng. It include s the follo wing:

Ms. Blackburn

sh owed pictures of victim’s property, bruises on Mrs. Coakley --- read portions of transcript. Robert Schultzwas present Aug ust 16, 1988. Subjec

t s hot thr ough doo r - s hot Mrs . Co akl ey. Larry Robertssp oke of continued violence in this case. Showed pictures of

Mrs. Coakley

after she was sh

ot. Mary Mathews - Friend, showed picture of Mrs. Coakley prior to incidents. Very attractive. S poke o f the violence ag ainst Mrs . Co akl ey. Mrs. Coakley

- Mother of victim.

Many Tear

s. Mary Ann Austin

- Sylvia Coakley’s aunt. Many tears. Been det rim ent al t o fam ily. Carla Sanders - Cousin to victim. She said body was so bad they had a closed casket funeral. Read from a paper. Showed muc h ho sti lit y.

The right of peace

able protest and p

etition for redre

ss of grievance

is constitutional. U.S. Constitution, Amendment I; Tennessee Constitution, Article I, Section 23. Inheren

t in-12-

such rights is the rig

hts of citizens to demonstr

ate personally

the intensity

of their sentiment

s. The Board did not initially have the benefit of the exercise of these rights. At its second hearing it did have the bene fit of these expressions and rebuttal of the prisoner’s testimony of a gentle and accidental murder.

In view of the statutes relating to the Board of Paroles, quote

d above, the arg

uments regarding th

e Open Meetings

Law are dee

med irrelevant.

The letter from

the attorney for

the family of the victim was effective to furnish the Board with a new address for the family, i.e., in care of their attorney. Moreover, as counsel for interested p

arties, he was e

ntitled to notice in h

is own right.

Eachof the issues present above has been examined and resolved. No re versable error is found in t

he actions of the B oard or the Trial Court.

The judgment of t

he Trial Court is af

firmed. Costs of this

appeal are taxed

against the appellant. Th

e cause is reman

ded to the Trial Cou

rt for necessar

y further p

roceedings.

AFFIRMED AND

REMANDED

_________________________________ HENRY F. TODD PRES IDING JUDGE, MIDDLE SECT IO N

CONCURS IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE