# FILED
March 6, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
JAM ES JENNINGS, ) ) Petitioner/Appe llant ) Davidso n Chancery No. 94-3069- III ) VS. ) A ppeal No. 01A 01-9509-CH- 00390 ) CHARLES TRA UGHBER, ET AL, ) ) Respondent/Appell ee. )
APPEAL FROM THE CH ANCERY COU RT OF D AVIDSO N COU NTY

AT NASHVILLE, TENN ESSEE THE HONORABLE ROBERT BRAND T, CHANCELLOR

JAM ES JENNINGS, pro se Clifton, Tennessee
CHA RLES W. BUR SON At torney General and R eporter EUGENE J. HO NEA Assi stant A

ttorney General Nashvil le, Tennessee Attorneys for Appellee

REVERSED
ALAN E. HIGHERS , J.
CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J.

Petitioner

James Jenning s, an inmate at C CA-South Ce ntral Corr ectional Cente r2

acting pro se , sought judi cial rev iew of the decision r

endered by the Tennessee Board of Par ole ("TBOP"), revoking Petitioner's parole, by common law writ of certiorari. Th e ChanceryCou rt, Davi ds on County, g ranted the Moti on to Dismiss filed by Re spondent, Charles Traug hber, Chairman, TBOP. Petitioner appeals the chanc ellor's dec ision.

In 1984, Petitioner

was conv icted and ordered to servethree concurrent fifteen year terms. In June, 1988, Petitioner was parol ed to a New Jersey det ainer wher e he was to
serve the balance of his sentence. In 1990, the New Jersey a uthorities r

eleased Petitioner and placed him under the su perv ision of the TBOP. The TBOP permitted Peti tioner to
move to Indiana, w here he was supervis ed by an Indiana Parole Off icer, Pam Frederick.

In Ja nuary, 1994, the TBOP certified that Petitioner was a fugi tive. The TBOP requested that Petitioner be returned to Tennessee "f or the purpose of revocation of his parole." On April 14, 1994, a parol e revocati on hear ing was held . Petitioner's Parole Violation Report listed the fo llowing charges: 1. Petitioner pled guilt y to the offense of rec kless dri ving, a Class A Misdemeanor, on September 9, 1991, in St. Joseph County, Indian a. This was a violati on of Parole Rule 2, which r equires a p arolee to obey t he la ws of the United States

or any st ate, as wel l as any muni cipal ordin ances. 2. T he petitioner was allegedly in possession of a firea rm on Oct ober 22 , 1992, in vi olation of Parole Rule 4. 3. The petitioner

failed to maintain stea dy employment in violation of Parole Rule 5. 4. The petitioner absconded his parole o n or about November 12, 1992, by c hanging his reside nce and leavi ng the state of Indi ana with out th e permission of hi s parole officer. This is a v iolation of Parol e Rule 6. 5. The petitioner f ailed to report to his parole off icer as instructed, in violatio n of Parole Rule 7. 6. The petitioner

was arrested in South Bend, Indiana, on August 31, 1991, forthe offenses of drivin g under the i nfluence and speeding . Petitioner registere d .16 on his blood alcohol test and pled guilt y to reckles s driving. The hearing officer

recommended that

Petitioner' s parole be revoked, but that Petitioner's
case be considered again in October 199 4. Additionall y, the heari ng officer recommended that Petitioner

be granted c redit for the ti me he was on par ole.

On April 19, 199 4, the TBOP Board revoked Petit ioner's par ole, declini ng Petitioner re-parole considerati on for the remainder of his sentence. On April 27, 1994, the TBOP3

rendered its final disposition in Petitioner's parole revocati on hearing. Petitioner submitted
a Request for A ppeal Hearingon May 25, 1994. The TBOP gave Petitioner notice th at his request for an appeal was denied on Aug ust 12, 1994. On October 11, 1994, Petitioner filed a petition for writ

of certiorar i in chancer y court.

We first address

a jurisdi ctional iss ue presented by the Appellee: Whether Petitioner

failed to comply

with T

. R.A.P. 4, w hich requi res that a par ty's noti ce of appeal be filed wit hin thirty

days of the entr

y of judgment fr

om which the party appeal s.

On February

7, 1995, Appellee filed a Motion to Di smiss for lack of subject matter jurisdict ion pursuant to Tenn. R. Civ. P. 12.02(1). Appellee argued that the chan cery court did not have jur isdiction be cause Petitione r's petiti on for a w r it of certior ari was not filed within 60 d ays, as r equired by T.C.A. § 27-9- 102 (Michi e 1980). Appell ees also arg ued that Petitioner's writ sought review of the "intrin sic fairne ss" of the Board's decision, an action b ey ond the scope of the cou rt's rev iew under a common law w rit of certi orari.

On February 27, 1995, the chancellor dismis sed Jenning s' wri t of certiorar i, agreei ng with Respondent that

the petition s ought rev iew w hich was beyond the scope of the w rit. The chancellor found, however , that the petiti on was timel y filed under T.C.A. § 27-9-102.

Petitioner

filed a Motion to Al ter

or Amend Judgment , pursuant to Tenn. R. Civ . P. 59.04 (Michie 1995), on March 23, 1995. Under Rule 59.01 (M ichie 1995), the filing of a motion to alter or

amend extendsthe time for a par ty to file an appeal. The recor d does not contain Petitioner' s Memorandum in S upport of his Rul e 59 motion; howev er, Appellee arg ues tha t the motion was frivolous and could not b e relied upon to extend Petitione r's time to appeal. The chancel lor found that the purpose of Petitioner's proposed amendment
was to challeng e the i ntrinsic fair ness of the TBOP's dec isions; a dec ision that i s not subject to judicial review . Thus, in an or der entered April 21, 1995, the chanc ellor denied Petitioner's Motion toAlter or Amend. Petitioner filed a Not ice of Appeal with this Court on May 17, 19 95.4

From the record before us, it is not clear that Petitioner's Motion to Al ter or Amend
was either

fr ivolous or filed for the purpose of delay. Even if the Motion was improper, Appellee does not cite, nor does our research reveal, any law that poorly writt en or unsupported motions

under Tenn. R. Civ. P. 59 do not extend the time for filing a notice of appeal pursuant to T.R.A.P. 4. Accordi ngly, we hold that Petit ioner's Not ice ofAppeal was timel y filed and thi s case is pr operly before this Court.
Appellees present a seco nd jurisdic tion al iss ue: Whether the petition for wr it of certiorar i was fil ed in the time prescribed by T.C.A. § 27-9- 102.

Pursuantto the requi rements of T.C.A. § 27- 9-102, a petiti on for wri t of cer tiorari must be f iled within sixty da ys fro m the entr y of the order or ju dgment from whi ch the appeal is taken. Petitioner received notice on or about April 27, 1994, that the TBOP had revoked Petitioner' s parole. On May 25, 1994, Petitio ner filed a req uest for an appeal hearing. On or about August 12, 1995, Petitioner r eceived noti ce that the TBOP deni ed his request for a n appeal hearing . Petitioner filed a petitio n forwrit of certiorari on October 1 1, 1994, more than five months after the TBOP i nformed Petitioner that his parole wa s revoked, but withi n 60 day s afterPetitioner received notice that the T BOP denied his request for an appeal hearing

.
T.C.A. § 40-28-101 et s eq. (Mic hie 1990) sets forth a uniform system of probation and pa role regul ations. T.C.A. § 40-28-105(d) (Michie 1990) provi des that an inmat e whose parole has been revoked may request appel lat e review by the TBOP. Appellate review is only granted for thefollowing reasons: 1. If there is si gnificant new evidence of i nformation that was not availabl e at the hearing . Requests based on the availabil ity

of new informatio n must be accompanied by adequate documentati on. 2. If there are allegations of m isconduct by the hearing official. 3

. If there are si gnificant pro cedural err ors by the hearing official.
Id

. The statute states: "T]he decision rendered after an appel late revi ew [by the TBOP] will b e final." Id

.5

In the present cas e, Petitioner' s parole was revoked. Thus, Petitioner w as entitled to submit, and did submit, a req uest for an app eal heari ng, whi ch the TBOP denied. Petitioner

received notice that hi s request h ad been denied s ometime after August 12, 1995. He filed a petition for writ of certiorari in chancery court within 60 days of rec eiving notice that the r

equest for an appeal hearing had been denied, as the statute requi res.

T.C.A. § 40-28-105(d) clearly states that a dec ision ofthe TBOP from which there lies a right of appeal is final after the boar d renders it s decision on the appeal. P etitioner had a right t o appeal his par ole revocation. Thus, the dec ision of the T BOP r evo king Petitioner's parole was not final until Petitioner ex hausted the TBOP's r eview process. In this case, the TBOP's review process was ex hausted when the TBOP i nformed Petitioner that it had denied hi s request for an appeal hearing; s ometime after August 12, 1995. We hold that Petitioner's writ of certiorar i, whic h was filed on October 11, 1995, was t imely filed as required by T.C.A. §27-9-102.

Petitioner

presents thefollowing issue for this Court 's consider

ation: The chancel lor erred in granting the Respondent's Motion to Dismiss, by citing that Petitio ner wa s attacking the "intrinsic fairness" of the Board of Parole's action s.

Althou gh Respondent's M otion to Dis miss was based on Tenn. R. Civ . P. 12.02(1), the b asis upon which the trial cour t dismissed Pe titioner's suit was Petitioner' s failure to state a cl aim u pon w hic h re lie f c an be granted . Such a motion "admits th e truth of all relevant and material av

erments contained in the complaint but asserts that such facts do not constitute a cause of action." Cornpropst v . Sloan , 528 S.W.2d 188, 190 (Tenn. 1975). Thus, in revi ewing t he action ofthe l ower co urt, we must "construe the com plaint liberally in favor of the plaintiff [Petition er herein] taking all of the allegations of fact therein as tr ue." Huckeby v . Spangler , 521 S.W.2d 568, 571 (Tenn. 1975).
The purpose of judic ial rev iew by common law w rit ofcertiorari i s contained in T.C.A. § 27-8-10 1 (Michie 1980 & Supp. 1995), w hich prov ides, in pert inent part:

The writ of certiorari may be granted w henever author ized by law, and also in all cases where an inferior tribunal, board, or officer exercis ing judic ial function has exceed ed the jurisdic tion6 conferred, or is aci ng illeg ally, w hen, in the judg ment of the court, there i s no other plai n, speedy, or adequate remedy

. The scope of review under the com mon law writ of certiorari is very narrow and covers

on ly an inquir

y into w hether the Board has exceeded i t s jurisdict ion or is a ctin g illeg ally, frau dule ntly, or arb itrar ily .

. . . one may say that i t is not the correctness of the decision that is subject to j udicial rev iew , but the manner in which the decision is reached. If the agency or board hasreac hed its decision in a constituti onal or law ful manner, then the dec ision would not be subject to jud icial rev iew. Powe ll v. Parol e Eligibi lity R eview Bd. , 879 S.W .2d 871, 873 (Tenn . App. 1994). Thus, the chancellor was correct in stating that the "intrinsic fairness" of the T BOP's decision is beyond the scope of revi ew under the common law w rit. Id

. The question t hat remains is whether Petitioner has alleged fact s whic h substantiate a claim that the TBOPacted arbitrari ly, il legally , or fraudulentl y.
Jennings' Petition for C ommon LawWrit of Certiorari al leges that t he TBOP arbitrarilyrevoked hi s parole based on Pe tit ione r'sconv ict ion of a misdemeanor, reckless driving, in 1991. Petit ioner alleg es that his Indi ana parole officer i nformed the TBOP of this convicti on in 1991, and that t he TBOP decided not t o revoke Petitioner's parole because of the misdemeanor offense. P etitioner arguesthat the TBOP acted arbitrari ly in us ing the misdemeanor

offense as a basis of his par ole revocation in 1994. Pet itioner nex t alleges that the TBOP acted impr operly by

refusing to al low Petit ioner both to cross- examine his Indiana parole officer

and to provi de his wi fe as a witnes s in his behal f. Finally , Petitioner argues t hat Respondent Traug hber's affidavi t to the Gover nor shows that the TBOP decided to rev

oke Petitioner 's parole before Petitioner's hearing took

place. Both the Tennessee Supreme C ourt and the Uni ted Stat es Su prem e Cou rt ha ve stated that parole revocation hear ings are meant to be informal and do not afford "the full panoply of rights due a defendant." State v. Wade , 863 S.W.2d 406, 408 (Tenn. 1993). However, in a final revocation hearing, a parolee is entitled to theminimum requi rements of due process, which inclu de the f ollowing:

(a) wri t ten notice of the cl aimed violations of parole; (b) disclosure to the parole e of evidence against him; (c) opportunity

to be heard in p erson and to pres ent witnes ses and documentary evidence; ( d) the rightto confront and crossexamine adve rse wit nesses (unles s a hearing officer specifically finds good cause for n ot allowi ng confrontation) ; (e) a 'ne utral and detache d' hearing body such as a traditiona l parole board, members of which need not be judicial off icers7 or lawy ers; and (f) a written statementby the fact finders as to the evidence relied on and r easons for revoking parol e.
Id

. (quoting Gagnon v. Scarpelli , 411 U.S. 778, 786 , 93 S. Ct. 1756, 1761-6 2, 36 L. Ed. 2d 656 (1973)).

The ultimate question in this appeal is w he ther the chancellor erred in g ranting Respondent's Motion to Di smiss. Construing the Petition li berally and taking all alleg ations of fact therein as true, we find that the Petition presents a valid claim that the TBOP acted i n an arbitra ry manner in rendering its decision. The commo n law writ of certiorari is properlygranted where a board exercising a judicial funct ion acts il legally . T.C.A. § 27-8- 101. According ly, thejudgment of the chancellor granting Respondent's Motion to Dismiss is rever sed. This case is remanded to thelower court for further pr oceedings co nsistent with this o pinion. Cost s are taxed to the State of Tennessee, for which execution may issu e, if nece ssary.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.