# FILED
May 8, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

FRANK R. DALTON, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 95-876-III VS. ) ) Appeal N o. ) 01-A-01- 9601-CH- 00029 TENNESSE

E BOARD OF PAROLES, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellee : For the Defenda nt/Appella

nt : Frank R. Dalton, Pro Se Charles W . Burson At torney General and Reporte r Patrici a C. Ku ssmann Assistant Attorney General



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This ap peal involves a prison inmate’s efforts to be paroled. Af ter th e Tennessee Board of Paroles declined t o parole hi m, t

he inmat e filed a petition fo r comm on-law w ri t of cert

iorari in the Chance

ry Cou rt for D avidson Count

y seeking review of the boar d’s dec ision. Th e trial cour t dismi ssed thepetition on the ground

that it fa iled to state a c laim upon which r elief cou ld be grant

ed, and the inmat e appeale d to this court . We have deter mined that the boa

rd has not demonstrated

that it is entitled toa judgm ent as a m atter of law, and theref ore, we vacate th e judgm

ent and re mand t

he case f or furthe r procee dings.
I.
Frank R. Dalton raped his twelve-year-old stepdaughter and threatened her withharm

if she re ported it. His crim

e was di scovered n onetheless , and on January 6, 1988, Mr. Dalton pled guilt y to aggravat ed rape, aggravated sexual battery , and viola

tion of bond a

nd was sentenced to s erve twenty-on e yea rs. He is curren tly inc arcera

ted at the Carter County Work Ca mp.
Mr. Dalton had aparole he aring on February 1, 1995. The hea ring officer recomm ended against pa

role beca use Mr. Da

lton had not c ompleted a

treatm ent program for sex offenders. The parole board concurred with t he hea ring offic er’s recomm ended disposition, and Mr. D alton was inform ed on Febr

ua ry 27 , 1995 thathe would not be paroled and that his case w ould be revi ewed aga in in February 1998. One

of the concurring board mem bers included a

comm ent on the disp o sition form

that Mr. Dalton had threate ned his vict im if she disclos ed his behavior.
Mr. Dalton fi led a

pro se peti tion for

comm on-law w rit of ce rtiorari in the Chancery Court for

Davidson C ounty on M arch 20, 1995. He asserted that the boar d’s d ecision to d eny him parole be cause he h ad not com pleted a tr

eatm ent program for sex of

fenders w as i nconsistent

with the c onsent decr

ee in Dean v. McWhe rter, No. 1-90-00 27 (M.D. Tenn. f iled Aug. 18, 1994). The board moved-3-

to dismis s the petitio n on the groun d that it fa iled to stat

e a claim upon whic h relief could be granted and supported its motion with an affidavit of its staff attorney as well as a copy of its record of the disposition of M r. Dalton’s case. The tria l court gra

nted the boa

rd’s m otion and dism

issed Mr. Dalton’ s petition.
II.
We turn firs t to thestandard of review. The cour ts will not interfer

e with the parole board’s decisions with regard to the release of inm ates if these dec isions are made accordin g to law. Flowers v . Traughbe r, 910 S.W. 2d 468, 470 ( Tenn. Cri m. App. 1995) ; Tenn. Code Ann. § 40-28 -115( c) (1990) . Acco rdingly , the scope of revie w availa

ble under a

comm on-la w writ o f

certior ari is ver

y narr ow and is limited to determining whether the board exce eded its jurisdiction or acted ill ega lly, frau dul ent ly, or arbi trar ily. Powell v. Parole Elig ibility Rev iew Bd., 879 S.W. 2d 871, 873 (T enn. Ct. App. 1994) . Whil e the cour ts will not use the writ to inquire into the intrinsic correctness of t he b oard’s decis ions, Flowers v. Traughber, 910 S .W. 2d at 470; Powell v. Parol e Eligibil ity Review Bd., 879 S.W. 2d at 873, t

hey w ill use the wr

it to deter mine whether the

board has m

et its obligation

to follow t he applic able law and its own rul es. Wells v . Tennes see Bd. of Paroles

, 909 S.W.2d 826, 829 (Tenn. Ct. A pp. 1995).
Tenn. R. Civ. P. 12.02 provides that motions to dismiss for failure to state ac lai m u pon which r

elief ca n be grante d should be tr eated as m

otions for summar y judgm ent if matters out side the ple adings are presente d to and not excl ud ed by the trial court. W hile trial courts have discretion to consider extraneou s documents, Pacific Easter n Corp. v. Gulf L ife Holdin g Co., 902 S.W. 2d 946, 952 (T enn. C t. App. 1995), they m ust treat a Tenn. R. Civ. P. 12.02(6) motion

as a m otion for su mm ar y jud gment if they do not exclude the extraneou s evidenc e. Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn. 1973); D. T. McCall &

Sons v. Se agraves, 796 S.W .2d 457, 45 9-60 (Te nn. Ct. App. 1990).-4- The board suppor

ted its m otion in this casewith extraneous docum ents which were not

excluded by

the trial court. A ccordingly , its m otion to dis miss must be treated as a motion for sum mary judgment. It follows that the board wa s entitled to the dism

issal of Mr. Da lton’s petition only if the material f acts are undisputed and if

it is entitl ed to a

judgment as a matter of law. Tenn. R. Civ. P. 56.03; Ande rson v. St

andard Register Co ., 857 S.W.2d 555, 559 (Tenn. 1993); Byrd v. Hall , 847 S.W .2d208, 211 (T enn. 1993) . Our ta sk on appeal is lim ited to determ ining whether Tenn. R. Civ. P. 56.03 's requir emen ts have been met. Carvell v. Bott oms, 900 S.W .2d 23, 26 ( Tenn. 199 5); Cowden v. Sovran Bank/Ce ntral

South, 816 S.W .2d 741, 744 (Tenn. 1991). W hile there are no materialdisputes concerni ng the fac ts releva nt to the disp osition of thi s case, we have determ

ined that th e board ha s not dem onstrated that it is e nti tl ed to a judgment as a matter of l aw.
III.
The essence of Mr. D alton’s claim is that the

board act

ed arbitrarily

and illegally by deny ing him parole be cause he h ad not com pleted a treatment program for sex offen ders. Even though Tenn. C ode Ann. § 41-21-235( b) (1990) provides that“[s] uccessful

participa tion and compl etion of

such trea tment program shall be arequirement of parole from the correctional institutions by such offenders,” Mr. Dalton asserts t hat the boa

rd could not apply t

he statute to him under the t

erms of the federal consent decree i n Dean v. McWherter
. A.
Dean v. McWherter

involved a clas s actionfiled in the United States District Court for the Middle District of Tennessee on behalf of all convicted sex offenders in the custo dy of the Tenness ee Department of Co rrection. The inmates challenged the constitutionality of Tenn. Code Ann. § 33-6-302 (1984) w h ich defined sexual off

enders as “m

entally ill persons ” who “ should be given continued care and treat

ment so long as their relea se would const itute a thr eat to them

or to the general pu blic.” They also ch allenged the const itution ality of Te n n. Code-5-

Ann. § 41-2 1-23 5(b). On February 24, 1992, the United States District Court entered a me mora

ndum a nd order r ejecti ng the report a

nd recom menda tion of the United States Ma

gistrate J udge and determining that Tenn. C ode Ann. § 33-6-302 was constitutional on its face. The district courtspeci fically withheld r

uling on the constit utional ity of Tenn. Code An n. § 41-21 -235(b). See Nichols v. McWhe rter, No. 3-88-06 14 (M.D.Tenn. fil ed Feb. 24, 19 92). Thereafter, on June 3, 1 994, the pa rties stipu lated that

t he sexual abuse treatm entprogram required in Tenn. Code A nn. § 41-21-235(a) had “not bee n fully developed a

nd instituted

by the Tennesse e Depar

tment of Corre ction.” T

heir stipulation a

lso provided : 2. The Tennesse e Board of Par oles will not applythe provisi ons of Tenn. Code Ann. § 41- 21

- 235(b) until such ti me tha t the sex ab use treat

ment program is fully instituted. 3. The p rov isions of T enn. Code Ann. § 41- 21-235(b) will be applied only to those sex offenders who are com

mitte d to the custody

of the De partm ent of Correct ion aft er t he s ex a bu se t rea tme nt program is instituted. 4. E a ch sex offen der who c omes b efore the Board of Parol es will be judge d on his or her own meri ts. The Boardwill apply the factors set for

th in the Rules of the Board of P aroles, Chapter 1 100-1-1-. 06, to each s ex offende

r in deter mining whether

to grant o r deny parole. The United States District Court entered an order on August 18, 1994, appr oving the parties’ stipulation and dism issing the sui t“wi thout prej udice to the mer its of anyclaims should the Tennessee Board of Parol es take any act

ion to deny

parole pursuant to Tenn. Code Ann. § 41-21-235(b).” Dean v. McWh ert er, No. 1-90

- 0027 (M.D. Tenn., filed Aug. 18, 1994).-6- B.
The boa rd d oes not con tes t th e va lid ity o r the applicability of Dean v. McWherter

to this case. Instead, it argues that the stipula tions do not pr event it from recomm ending that a prisoner complete a treatm ent program

for sex offenders before being rele ased onparole. It interprets the United States District Court ’s order as perm

itting the us e of the

compl etion of a t

reatm ent program as a prerequi site to parole as long as it doe s not “ mech anically ” apply Tenn. C ode Ann. § 41-21-235(b). W e do not agr ee with t he board’ s interp retation of the United States District Court’s order. Judgme nts and orde

rs should be construed u sing the rul es of const ruction applied to other wri tten ins truments. Livingston v . Livings ton, 58 Tenn. App. 271, 281, 429 S.W.2d 452 , 456 (196 7). Thus, we should constr ue a judgm

ent in light of the pleadi ngs and t he entire rec ord, Vanatta v. Vanat ta, 701 S.W .2d 824, 82 6- 27 (Tenn. Ct. App. 1985); Fleming v. Kem p, 27 Tenn. App. 150, 154, 178 S.W. 2d 397, 399 (1944), and we sho uld endeavo r to giveall parts of a judgm ent their f ull, reasonable, and consistent effec t. Branch v. Branch, 35 Tenn. A pp. 552, 555-56 , 249 S.W.2d 581, 582-83 (1952).
The plain wor

ding of the

stipulations approved by

the United States District Courtlimit s the board ’s abili ty to r ely on Tenn. Code

Ann. § 41-21-235(b). Under no circumstances can it use an inmat e’s fa ilure to complete a treatm ent program for sex offen ders as gr

ound s to den y paro le until it h as fully developed a

nd inst it uted the treatment program required by Tenn. Code Ann. § 41-21-235(a). Even after it

institutes t

his program , it can o nly app ly Tenn. Code Ann. § 41-21- 235(b ) to inmat

es who we

re incar cerated after th e program

was instit

uted. T he board ’s parole de cisions withregard to inma tes to whom

Tenn. C ode Ann. § 41- 21-235(b) does not apply m ust be consis tent with Tenn. Com p. R. & Regs. 1100

- 1-1-.06.-7- The board did not merely “ recomm en d” that Mr. Da

lton partic ipate in a treatm ent program for sex of

fenders. Its own records and the affidavit of its staff attorney show clearly that it declined to parole Mr. Da lton beca use he h ad not completed

a treatment program

for s ex off

enders. Thus, the

board visit

ed upon Mr. Dalt on t he v ery i n

justice that the United Stat

es Distr ict Court a

ddressed in Dean v. McWherter . Since there is n o evidence

tha t the dep artm

ent had ful ly implemented the treatment program by Feb ruary 1995, the board imposed an im poss ible condition on Mr. Dalton’s parole, name ly the completion of a treatm ent progra

m that did not exist
. The Department of C orr ection had not instituted the treatment program required by Tenn. C ode Ann. § 41-21-235(a) when Mr. Dalton was incarcerated in 1988. Thus, Mr. Dalton is not one of the inmates whose parole can be denied pursuant to Tenn. Code Ann. § 41-21-23 5( b). The board, therefore, ac ted arbitrar ily and illega

lly when it r

efused toabide by

the consent

decree in Dean v. McWherter

and declin ed to parol e Mr. Dalton be cause he h ad not com pleted a treatm ent program for sex of

fenders. Accordi ngly, Mr. Da lton’s petiti on state d acause of action upon which relief under a comm on-law writ of certiorari could be granted, and the board has failed to demons trate tha t it is entit led to a judgm

ent of dismissal a s a matter of law.
C.
Our determ ination that

the board a

cted arbi trarily

and illega

lly by fa iling to follow its agreement i n Dean v. McWherter does not nec ess aril y end the inq uir y. The board’s reliance on Tenn. Code Ann. § 41-21-235(b) could be considered harm less error if

the board h ad other adequate, independent grounds for declining to grant Mr. Dalton pa

role . These

grounds, if

they exist, m

ust be am

ong the grounds listed in Tenn. Comp. R. & Regs. 11 00-1-1-.0 6.
The pre printe d document used by the board to report its action states that the board dec lined to par

ole Mr. Da

lton because h e had not co mplet ed a trea tment program for sex of

fenders a nd because

he “v iolated posi tion of trus tas father1 In the space for comments on the board’s disposition form, someone ha d written “continue with afte

r care .” While the

meaning of this co mment is not

readily apparent , Mr. Arnold asserted that “after care ” referred to the treatment prog ram required by

Tenn. Code Ann. § 41-21-235(a). Even if Mr. Arnold is correct, this fac t would be irrelevant since the board’s sole reason for declining parole wa s the seriousness of Mr. Arnold’s offense. -8- figure.” The latt

er ratio nale does no t fit rea dily int o one of the

seventeen factors listed in Tenn . Comp. R. & Reg s. 1100-1- 1-.06(1) and does not a ppear to r elate to either Ten n. Comp. R. & Regs. 110 0-1-1-.06 (3)(b) or 11 00-1-1-.0 6(3)(e). Unspecif ic findings of

fact and conclusions of law hampe r a court ’s abili ty to determ

ined whet

her an adm

inistrativ e decision rests on the law and t

he evidence or whether it is arbitrar y and capriciou s. Levy v. State Bd. of Exami ners for Speech Pathology and Audiology, 553 S.W.2d 909, 912 (T e nn. 19 77). We cannot discern from the record of the board’ s decision whet her it wou l d have declined to release Mr. Dalton on parole had it not relied upon Tenn. Code Ann. § 41-21-235(b) or whether the board properly limit ed its revi ew of

Mr. Dalt on’s case to the factors listed in Te nn. Comp. R. & R egs . 11 00- 1-1 -.06 . Acco rdi ngl y, we have dete

rmine d that the tr

ial court s hould have r

eman ded the ca se to the board withdirection s to consider whether Mr . Dalton should be par

oled using only the factors l isted in Tenn. Com p. R. & Regs. 1100 -1-1-.0 6.
This case dif

fers fa ctually fro m Arnold v. Tennesse e Board of Paroles, App. No. 01-A-01-9508-CH-00375 (Tenn. Ct. App. May 8, 1996) in which a

n inma te also asserted that the board had improperly r elied on Tenn. Code Ann. § 41-2 1

- 235(b) to deny him parole. Whil e Mr. A rno ld, like Mr. Dalton, was amongthe class of sex offenders covered by the Dean v. McWherter federal consent decree, the board did not

specific ally de cline to parole him because he had not com pleted atreatm ent program for sex offenders. T he board declined to parole Mr. Arnold because of the “ seriousnes s of [his] offense.” 1 The board’s decision with regard to Mr. Ar nold was not

illegal or arbitra ry bec ause Tenn. Com

p. R. & Regs. 1100- 1-1- .06(3)(b) authorizes the denial of parole if the inmate’s r elease w oul d “depr eciate the seriou sness of t he offense.” Ac cordi ngly, Mr. Ar nold’s petition for writ of c ertiorar

i failed t o state a c laim upon which r elief cou ld be grant

ed.-9- IV.
We vacate t

he order d

ismiss ing Mr. Da

lton’s petition and r

eman d the case to the trial

court for the entry of an orde

r consiste nt with

this opinion

rem anding the case to the board for further considera

tion. We tax the c osts of this appe al to the Tenne ssee Boar

d of Parol es.

________________ __ __________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ SAMUEL L. LEWIS, JUDGE