# FILED

Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

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

GARY W. PHELPS, ) ) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 95-1892-III VS. ) ) Appeal N o. ) 01A01-9603- CH-00103 TENNESSE

E BOARD OF PAROLES, ) ET AL., ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

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

For the Plaint iff/Appellant : For the D efendants /Appellees : Gary W . Phelps, Pro Se J. Knox W alkup A ttorney General and Re

porte r Patrici a C. Ku ssmann Assistant Attorney General



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Persons who have been co nvicted o f se x crimes may not be r eleased on parole until they have completed a progr am for sex offenders and an appropriate menta l health professional has certified that they do not “pose the likelihood of c ommitting sexual assaults upon re lease fro m confinement.” See Tenn. Code A nn. §§ 40-2 8-116(a)(2), - 117(b)(6) & 4 1-21-235 (1997). Based on the State’s stipulat ed settleme nt in fede

ral proc eeding s rega

rding th e enfor cement o f these statutes, this court ha s held tha t the Boa rd cannot base itsdecision to deny par ole to a sex offender solely on the ground that the offender has not completed a program for s ex offenders until the Department

of Correction has fully

instituted these programs. See South v. Tennessee Bd. of Paroles , 946 S.W.2d 31 0, 3 12-13 (Tenn. Ct. Ap p. 1996); Dalton v. Tennessee Bd. of Paroles , App. No. 01A01-9601-CH-00029, 1996 WL 230209, at *3-4 (Tenn. Ct. App. May 8, 1996) (No Tenn. R. App. P. 11 application filed). -2- 

## O P I N I O N

This appeal inv olves a sta te prisone r’s ef forts to obtain

judicia l review of the decision of the Tennessee Bo ard of Pa roles to deny him parole. After exhausting his available remedies before the Board, the prisoner filed a petition for writ of certiorari in the Chancery Court

for Dav idson County

challengi ng the Boar

d’s dec ision. Th e trial court dism

issed the petition onthe ground that it had not been fi led within sixty days as required by Te nn. CodeAnn. § 27- 9-102 (1980) . We find that th e petition was tim ely f iled and, therefor

e, vaca te the orde

r of dism issal.

I. GaryW. P helps is currently incar cerated at Turn ey Center servin g two consecutiv e sentences for sex crimes. He was afforded a parole hearing on February 14, 1995, and atthe conclu sion of the h earing, the hearing officer recomm ended that Mr. P helps should no t be parole d because of the ser iousness of his offense s and because he had not completed a program for sex offe nders

. 1 Between Februar y 16 and 23, 1995, f

our member s of the Boa rd approve d the hear

ing o fficer’ s recom menda tion, and Mr. P

helps was inform

ed of the B oard’s decision in a letter dated Febru ary 28, 1995.

On March 20, 1995, Mr. Phelps requested that th e full Boa

rd review the hearing officer ’s deci sion. On A pril 25, 19 95, theBoard noti fied Mr. Phelps that his request for revi ew had be en denied. Mr. Phe lps recei ved this not ice on Ap ril 28, 1995 and filed a petition fo r writ o f certio rari in th e Chance ry Cou rt for D avidson2 See West v. Tennessee Bd. of Paroles , App. No. 01A01-9604-CH-00362, 1997 WL 5179,

at *2 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn. R. App. P. 11 application filed).

3 In W est v. Tennessee Bd. of Paroles , supra ., n.2, 1997 WL 5179, at *2, we held that a prisoner’s untimely application for appe llate review (formerly

referred to as de novo review) did not toll the time

for filing a comm

on-law w rit of ce rtiorar i. -3- County on June 23, 1995. The trial court dismissed the petition after concluding that Mr. Phelps had not filed it before th e deadlin e prescribe d by Tenn. Code Ann . § 27-9- 102.

II.

This appeal re quires us todeterm ine when t

he time for filin g a petition

for wri t of certior ari to re view the B oard of Pa roles’ denial of p arole beg ins to run. This issue has been raised in prior cas es, but we have never decided th e question

because t hose
cases were di sposed of on o ther ground s. 2 Specifically, we must determ

ine whether the sixty- day fi ling period required by Tenn. Code Ann. § 27-9-102 com mences when
apanel of the Board first deni es par ole o r when the fu ll Boa rd den ies th e pris oner’s timely applicati on 3 for appel late review. This is a pivotal issue in many of these cases because the sixty -day f

iling perio d in Tenn. Code Ann. § 27-9-102 is manda tory a nd jurisd ictional. See Thandiwe v. Traughber , 909 S.W .2d 802, 80 4 (Tenn. Ct. App

. 1994).

A.

Prisoners do not ha ve a right t o be released on parole. See G ra ham v. St ate , 202 Tenn. 423, 426, 3 04 S.W .2d 622, 62 3 (1957); T enn. Code Ann. § 40-28-117(a) (1997). The decision torelease a prisoner

on parole i s within the

Board of P aroles’ discretio n. State ex rel. Ivey v. Meadows , 216 Tenn. 678, 685 , 393 S.W .2d744, 747 (1965); Doyle v . Hampt

on , 207 Te nn. 399, 40 3 , 340 S.W .2d 891, 89 3 (1960). The Depar tment

of Corre ction is re sponsible for determ ining when a

prisoner b ecom

e s eligible for parole co nsiderati on, see Tenn. Code Ann. §§ 40-28-116 & 40-28-129 (1997), and this dec ision is based pr imar ily on the portion of the sentence the prisoner has served and on the sentence credits the priso ner has earn ed. See Tenn. C ode Ann. § 40-28-1 15 (1997 ); Tenn. Comp. R. & Regs . r. 1100-1-1 -.07(1)(a) (1 995).4 Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(c)

. -4- After becom ing eligible

for parol e consideration, a priso ner i s afforde d a hearing before eith er a hearing o fficer or a pan el of the Boa rd. These he arings must be conducte d in accord ance with th e Open Paroles Hearing Act. S ee Tenn. C od e Ann. §§ 4 0-2 8-5 01 t hro ugh -50 5 (1 997 ). Pr iso ner s may b e per mitte d to be pres ent during the delibe

rations fo llowing the hearin g, see Tenn. Comp. R. & Re gs. r. 11 00- 1-1-.07(3)(a), but i n any event they are entitled to be informed of the decision “as soon as it is made.” See Tenn. Comp. R. & Regs. r. 11 00-1-1-.0 7(3)(b).

If a parole hearing is conducted by a hearing officer, the hearing off icer’s decision is advisory only and m

ust be eitheracc ept ed, mo dif ied , or r ejec ted by a maj ority of the members of the Bo ard. See Tenn. Comp. R. & Regs. r. 1 100-1-1

- .07(2)(a). Aft er t he B oar d h as a cte d o n t he h ear in g o ffi cer ’s r eco mm endati ons, inmates have the r

ight to appea

l to the Boa

rd for fu rther con side ration o n three gr ounds. W ritten requests for this appellate review must be received by the Board within tw enty- one day s after t he Board’ s final disp osition“is m ade avail able to the inmate.” 4 The dec ision conce rning whet

her to gra

nt o r to de ny the a

ppeal is discretio nary with the Boa rd.

B.

The trial cour

t did not explain the factual basis for its determination that Mr. Phelp s’s pet it io n fo r co mmon -la w wr it of c ert io rar i h ad n ot bee n fi led wit hi n t he t ime required by Tenn. Code Ann. § 27-9-102

. We m ay ass um e, however, that the trial courtmust

have dete

rmine d that the

running of t

he filing pe

riod in Tenn. Code A

nn. § 27-9-102 was not tolled while the Board was considering Mr. Phelps’ s request for appellate review of the Board’s decision announced in its February 28, 1995 letter. Indeed, the Board

asserts i n its brief

that the filing period began to run on February 28, 1995 and that there is no other possible date because the Board does not have the authority to extend th e filing de adline in T enn. Code Ann. § 27-9-102. We ce rtainly agree that the Board does not havethe authority to extend a statutory filing deadline;-5-

however, identifying the corr ect date when the filing period begins to run is another matter.
Comm on -law writs of certi orari are ext raordinary remedies. See Clark v

. Metropolit

an Gov’t of

Nashvilleand Davidso n County , 827 S.W. 2d 312, 316 ( Tenn. Ct. App. 1991). In the proper c ircum stanc es, the c ourts m ay gra nt these writs to review decision s that are no t final. See Boyce v. Williams , 215 Tenn. 704, 713, 389 S.W. 2d 272, 276 (1965); Hewgley v. Trice , 207 Tenn. 466, 472 , 340 S.W .2d 918, 92 1 (19 61 ). However, the courts should decline to grant writs of certiorari if there ar e otherplain, adequate, and speedy rem edies ava ilable to th e person see

king the wr

it. Pack v. Royal-Globe Ins. Co. , 224 Tenn. 452, 465, 457 S.W.2d 19, 24 (1970); McGee v. State , 207 Tenn. 43 1, 434, 340 S.W.2d 904, 905 -06 (1960 ).

Tenn. Code Ann

. § 27-9-102 r equires a petition for com

mon-l aw wri t of certiorari to be filed “within sixt y (60) days from the entry of the o rder or judgment.” In the context of revie wing deci sions of the Board to deny parole, Tenn. C ode Ann. § 27-9- 102 should be con strued to r efer to t he final de cision that

fully and finally resolves all th e cl aims with no option for further administrative rem edies. Any other interpretati on of T enn . Co de A nn . § 2 7-9 -10 2 wo ul d re qu ire th e co urt s t o b eco me enmeshed in the Board’s proceedings pre matur ely and would a

lso devalue

the administrative

remedies still avai lable to the priso ners s eekin g the writ. Th e Boar d’s
own procedures thatperm it appella te review by the full Boar

d provideprisoners with a plain, a dequate, and speedy

rem edy tha t should not be

circum vented. Accordingly, we have determ ined that the ti me f

or filing a c omm

on-law writ of certi orari to review decisions of the Board of Paroles should begin to run either when a ma

jority of the m embe rs of the board ren der their

decision or , if

the prisoner has filed a

time ly re quest for a

ppellate r eview by the Board , from

the date t

he ful l Board acts on the

prisoner’ s request. This interpretation of Tenn. C ode Ann. § 27-9- 102 is consistentwith our interpretation of T enn. R. App. P. 4(b) rega rding the f

iling of notices of

appeal an d Tenn. C ode Ann. § 4-5-322(b )(1) (Supp. 19 97) regar ding the filing o f petitio ns for judic ial review of administrati ve decisio ns.-6- III.

We have determined

that Mr. Phelps filed his pe tition for c omm

on-law writ of certiorari within sixt

y days aft er the Board ’s denial of his request for appellate review and, therefor

e, that hi s petition w as filed w ithin the tim e require d by Tenn. Code Ann. § 27-9-102. Accordingly, we vacate the order dismis sing Mr. Phe lps’s petition an d
r e mand the case to the tria

l court for

a consideration of the

mer its of Mr. Phelps’ claim s. We also tax the costs of this appeal to the Bo ard of Paroles for which execution, if necessary, m ay issue.

_________________ ___________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_________________

_ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

_________________

_ SAMUEL L. LEWIS, JUDGE