FILED

December 16, 1998

Cecil W. Crowson

Appellate Court Clerk

ROGERS McKINLEY, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9804-CH-00205

v. )

) Davidson Chancery

CHARLES TRAUGHBER and ) No. 97-3877-I

ROBERT BYRD, )

)

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE DAVIDSON COUNTY CHANCERY COURT

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

ROGER McKINLEY, Pro Se

Route 4 Box 600

Pikeville, Tennessee 37367

JOHN KNOX WALKUP

Attorney General and Reporter

MICHAEL MOORE

Solicitor General

PAMELA S. LORCH

Assistant Attorney General

Civil Rights and Claims Division

Second Floor, Cordell Hull Building

425 Fifth Avenue North

Nashville, Tennessee 37243-0488

ATTORNEYS FOR CHARLES TRAUGHBER

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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O P I N I O N

This appeal involves a state prisoner's challenge to the decision of the

Tennessee Board of Paroles denying him parole. The petitioner filed a pro se

petition for a writ of certiorari in the chancery court seeking review of the

Board's decision. The trial court granted the respondent's motion to dismiss

pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. We affirm.

On November 21, 1997, Roger McKinley filed a petition in the Chancery

Court of Davidson County for a writ of certiorari to review his parole denial. In

his petition he asserts that he had a parole hearing before hearing officer Robert

Byrd on September 10, 1997. The hearing officer recommended denial of parole,

and the parole board approved the recommendation on November 12, 1997. In

Mr. McKinley's petition he states: "It is on record that Charles Traughber,

Chairman of the Board has made the statement that a offender meeting a parole

board member has a much better chance of making parole than one who meets

a hearing officer. Petitioner's case is one of the types of cases listed that should

be heard by a parole board member." He further asserts that he has never been

granted a psychological evaluation, and without such evaluation, he cannot have

a complete, full and fair hearing. He asks the court to "grant him a full board

hearing or at least a hearing before a board member . . . "

Respondent, Charles Traughber, responded with a motion to dismiss

pursuant to Civil Procedure Rule 12.02(6) which the chancellor granted on

March 31, 1998 thereby denying the application for certiorari. On April 9, 1998,

petitioner filed a notice of appeal from the decision of the chancellor. On that

same date respondents filed a motion to alter or amend the judgment pursuant to

Tennessee Rules of Civil Procedure 59.04. By this motion respondents sought

to correct an alleged error of fact in the judgment.

On the last page of the judgment, the court states that the board

determined that the petitioner is not eligible for parole because he

did not complete the sexual offender treatment program. However,

as documented by the attached affidavit, the petitioner was denied

parole release because of the seriousness of his offense. (see,

attached to affidavit, exhibit 1 entitled "notice of board action

release hearing," section entitled "reasons for decline").
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Thus, the motion to alter or amend sought correction of the March 31, 1998 order

so as to reflect what was actually shown by a form entitled "notice of board

action parole release hearing" which related to the September 10, 1997 hearing.

On May 19, 1998, the chancellor set aside the order of March 31, 1998 due

to "a misstatement of fact" therein and filed contemporaneously a new order

which again denied the application for certiorari. In its order, the court removed

the reference to the sexual offender treatment program as a basis for denying

parole. Indeed, the record shows that the parole application of Mr. McKinley

was denied by hearing official Robert Byrd solely upon a finding that "release

at this time would depreciate seriousness of offense; or promote disrespect of the

law." The record further shows that this recommendation was thereafter

approved by the Board of Pardons and Paroles.

The trial court delineated the relevant law with accuracy and clarity as

follows:

Tenn. Code Ann. § 40-28-105(d)(2) and (4) provide that the

chair of the board may appoint hearing officers to conduct hearings

and make recommendations to the board regarding the grant, denial,

revocation or recision of parole. Further Rule 1100-1-1-.02(3) of

the Tennessee Board of paroles provides that:

After becoming eligible for parole consideration, a

prisoner is afforded a hearing before either a hearing

officer or a panel of the Board. If a parole hearing is

conducted by a hearing officer, the hearing officer's

decision is advisory only and must be either accepted,

modified, or rejected by a majority of the members of

the Board.

Tennessee law specifically provides that a parole board

hearing can be conducted by a hearing officer. The petitioner does

not cite any statute or regulation to support his claim that his case

is the type of case that should be heard by the board. Therefore, the

petitioner's claim that it was improper for the hearing officer to

preside over his parole hearing is without merit.

These statutes and parole board rules control. In light of this law, the statement

of opinion by Chairman Traughber as alleged in Mr. McKinley's petition is of no

consequence. 
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With regard to Mr. McKinley's right to a psychological evaluation, the

chancellor observed:

Finally, the petitioner contends that because he did not

receive a psychological evaluation prior to his hearing, he did not

have a full and fair hearing. The petitioner does not have any right

to a psychological evaluation prior to his parole hearing. Tenn.

Code Ann. §§ 40-28-116(a)(2) and 41-21-235(4)(c) and Rule 1100-

1-1-.10(2) of the Rules of the Tennessee Board of Paroles provide

that no sex offender shall be released on parole unless a psychiatrist

or licensed psychologist has evaluated the inmate and determined

that he does not pose the likelihood of committing sexual assaults

upon release. These provisions merely make a psychological

evaluation necessary once the board has made a determination that

the sex offender is otherwise a candidate for parole release. The

board has determined that this petitioner is not otherwise eligible

for parole. Therefore, he is not entitled to psychological evaluation.

Clearly the chancellor is correct in this holding as the record shows conclusively

that the Board of Pardons and Paroles preempted the psychological evaluation

question by determining that Mr. McKinley is not eligible for parole because

release at this time would depreciate the seriousness of the offense for which he

was convicted.

In Tennessee the grant of parole is a discretionary matter vested

exclusively in the Board of Paroles. Doyle v. Hampton, 207 Tenn. 399, 340

S.W.2d 891 (1960). With respect to reviewing the Board's decisions, this court

has held as follows:

The scope of review under the common law writ, however,

is very narrow. It covers only an inquiry into whether the Board

has exceeded its jurisdiction or is acting illegally, fraudulently, or

arbitrarily, Yokley v. State, 632 S.W.2d 123 (Tenn.App.1981).

Conclusory terms such as "arbitrary and capricious will not entitle

a petitioner to the writ. Id. At the risk of oversimplification, one

may say that it is not the correctness of the decision that is subject

to judicial review, but the manner in which the decision is reached.

If the agency or board has reached its decision in a constitutional or

lawful manner, then the decision would not be subject to judicial

review.

Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. App.

1994). We cannot say that the Board abused its discretion by exceeding its

jurisdiction or by acting illegally, fraudulently, or arbitrarily.
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We find the petition for certiorari is without merit and the judgment of the

chancellor is in all respects affirmed. The costs of this appeal should be taxed

to Mr. McKinley.

________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, PRES. JUDGE, M.S.

_____________________________________

PATRICIA J. COTTRELL, JUDGE