# FILED
December 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk ROGERS McKINLEY, ) ) Petitioner/Appell

ant, ) Appeal No.

) 01-A-01-9804-CH-00205 v. ) ) Davidson Chancery CHARLES TR

AUGHBER and ) No. 97-3877-I ROBERT BYRD, ) ) Respondents/Appelle

es. )

COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE DAV IDSON COUNTY CHANCE RY COURT AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

ROGER McKINLEY, Pro Se Route 4 Box 600 Pikeville, Tenne ssee 37367
JOHN KNOX WALKUP Attorney General and Reporter MICHAEL MOORE Solicitor General PAMELA S. LORCH Assistant Attorney General Civil Rights and Claim

s Division Second Floor, Cor

dell Hull Building 425 Fifth Avenue No

rth Nashville, Tennessee 37243-0488 ATTORNEYS FOR CHARLES TRAUGHBER

AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE-2- 

## O P I N I O N
This ap peal involves a state prisoner's challe

nge to the decision of t

he Tennessee Board of Paroles d enying him pa

role. The petiti

oner filed a

p ro se petition for a writ of certiorari in the chan cer y court seeking r eview of the Board's decision. The trial court grante d the respondent's m

otion to dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of CivilProce dure. We affi rm.
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 app

roved the recom

mendation on

November

12, 1997. In Mr. McKinley's pe

tition h e states: "It is on record that Charles Traughber, Chairman of the Board has made

the statement t

hat a offender m

eeting a parole board member ha

s a much better

chance of mak

ing parole than one w

ho meets
a hearing officer.

Petitioner's case is one of the types of cases listed that should be hear d by a parole board member." He further asserts that he has never been granted a psychological e valuation, and with

out such evaluation, h

e cannot have
a complete, fu

ll and fair hearing . He asks the cour t to "grant him a

full board hearing or at least a he aring before a board member . . . " Respondent, Charles T

raughbe r, responded with a motion to dism

iss pursuant to Civil Procedure Rule 12.02(6) which the chance llor granted on March 31, 1998 thereby

denying the application for certiora ri. On April 9,

1998, petitioner filed a notic e of appeal f rom the decision of the chancellor. On that
same date respondents fil ed a motion to alt

er or amend the

judgment pursuant to Tennessee Rules of Civil Procedure 59.04.By this motion respondent s sought to correct an alle

ged error of fact

in the judgment

. On the last page of the j udgm ent, the co urt states that the board determined tha

t the petitioner is not

eligible for parole

because he did not complete the sexual offender treat ment pr ogram. However, as documented by

the attached affi

davit, the petitioner was denied parolerelease because of the seriousness of his offense. (see, attached to affidavit, exhi bit 1 entitl ed "no tice of board actio n release hearing," section entitled "reasons for decline").-3-

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 actionparolerelease hearing" which related to th e September 1 0, 1997 hearing.
On May 19, 1998, th

e chancellor set a

side the order of Ma

rch 31, 1998 due t o "a misstatement of fact" therein and filed contemporaneo usly a new o rde r which again denied the application for certiorari. In its order, the court removed the reference to the sexual off ender treatm

ent program as

a basis for deny

ing pa r ole. Indeed, the record shows that the parole application of Mr. McKinley
was denied by heari

ng official Robert Byrd solely upon a finding that "re

lease atthis time would d

epreciate seriousness of offe

nse; or promote

disrespect of the law." The record furt

he r shows that this recommendation was thereafter approved by the B oard of Pardons and P aroles.
The trial co urt 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 g rant , denial, revocation

or recision of parole. Further Rule 1100-1-1-. 0 2(3) of the Tennessee Boa

rd of paroles provides that: After becoming e

ligi ble for parole consi deration, a prisoneris afforded a hear ing befor e either a hearing officer or a panel of the Board. If a par ole 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 membersof the Board. Te nnessee law specifically provides that a parole board hearing can be conducted by a hearingofficer. 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 p etitioner 's claim that it w as improper fo

r the hearing offic

er to preside over his par

ole hearing is withou

t merit. Thesestatutes and parole board rules control. In light of this law, t he statement of opinion by Chairman Traughber as alleged in Mr. McKinley's petit ion is of no consequence.-4- With regard to Mr. McKinley's right to a psychological eval uation, the chancellor observe

d: Finall y, the petitioner contends t hat because he did not receive a psychological evaluation pri o r to his hearing, he did not have a full and fair

hearing. The pet

itioner does not have a

ny right to a psychological evalua tion prior to his p arole hearing. T enn . Code Ann. §§ 40-28-116(a )(2) and 41-21-235(4)(c) a

nd Rule 1100- 1-1-.10(2) of the Rules of the Tennessee Boardof Paroles provide that no sex offender shal

l be released on par

ole unless a psych

iatrist or licensed psy chologist 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 oncethe board has ma de a determination that the sex offender is otherwise a candidate for parole releas e. Th e board has determine

d that this petitioner is not otherwise eli gible for parole. Therefore, he

is not entitled to psy

chological evaluatio

n. Clearly the chancellor is cor rect in this holdi ng as the record shows conclusively t hat the Board of Pardo

ns and Paroles pree

mpted the psy

chological eva

luatio n question by determi

ning that Mr. McKi

nley is no t eligible for parole because release at this time wo

uld depreciate

the seriousness of the

offense for whic

h he was convicted.

In Tennessee the grant of parole is a discret io nary matter vested exclusively

i n 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 scop e of review under the common law writ, however, is ve ry na

rrow. It covers only an inquiry into whether the Board has exceeded its juri sdiction or is acting illega lly, frau dulent ly, or arbitr arily, 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 wri t. Id. At the risk of oversimplific ation, one may say that it is not the correctness of the decision that is subject to judicial review , but the manne r in which the decis

ion is reached. If the agency or

board has reached i

ts decision in a

constitutional or lawful manner, then the decision would not be subject to judici a l review. Powell v. Parole Eligibil

ity Review Bd. , 879 S.W.2d 871 , 873 (Ten n. App. 1994). We c annot say that the Board abused its disc

retion by excee

ding its jurisd iction or by acti ng ille gally, fr audule ntly, or arbitr arily.-5- We find the petition for certiorari is without meri tand the judgme

nt of the chancellor is in all respects affirmed. The costs of this appeal should be taxed to Mr. Mc Kinley.

___ _____ _______________________ _ WILLIAM B. CAIN, JUDGE
CONCUR:

__________________________________ ___ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ ___ PATRICIA J. COTTRELL, JUDGE