Joseph Brennan v. Board of Parole For The State of Tennessee , 512 S.W.3d 871 ( 2017 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 5, 2016 Session
JOSEPH BRENNAN, ET AL. v. BOARD OF PAROLE FOR THE STATE OF
TENNESSEE
Appeal by Permission from the Court of Appeals
Chancery Court for Davidson County
No. 131171II Carol L. McCoy, Chancellor
___________________________________
No. M2014-01591-SC-R11-CV – Filed January 10, 2017
___________________________________
The Tennessee Board of Parole denied parole to a prisoner who was serving a
twenty-year sentence for convictions of attempted rape of a child. The Board determined
that the prisoner’s release from custody would depreciate the seriousness of the crime for
which he was convicted or promote disrespect for the law. The prisoner filed a petition of
certiorari challenging the Board’s decision. The trial court affirmed the Board’s decision,
and the prisoner appealed. The Court of Appeals did not review the issues raised on
appeal. Instead, it calculated the date the prisoner should have been considered for parole
and concluded that the Board acted arbitrarily by conducting a parole hearing
prematurely. The Court of Appeals vacated and remanded with instructions for the Board
to give the prisoner an immediate parole hearing. We hold that the Court of Appeals had
no authority to calculate the date the prisoner could be considered for parole and did so
incorrectly. The Tennessee Department of Correction has the statutory authority to
determine the date a prisoner may be considered for parole by the Board. On review, we
affirm the trial court’s decision.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined. ROGER A. PAGE, J., not
participating.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Jennifer L. Brenner, Senior Counsel, for the appellant, Tennessee Board of
Parole.
J. Alex Little (on appeal) and Mark C. Scruggs (at trial), Nashville, Tennessee, for the
appellee, Joseph Brennan.
OPINION
I.
In January 2009, Joseph Brennan pleaded guilty to two counts of attempted rape of
a child.1 He was sentenced to serve ten years, consecutively, for each count of attempted
rape for an effective sentence of twenty years, with a release eligibility of thirty percent.
Mr. Brennan began serving his sentence on April 3, 2009.
On March 26, 2013, a Tennessee Board of Parole hearing officer conducted a
parole hearing for Mr. Brennan based on a release eligibility date—the date a prisoner is
eligible to be considered for parole—of June 14, 2013. The hearing officer received
written statements and testimony from Mr. Brennan, the victim, family members, friends,
and the victim’s psychologist. The hearing officer recommended that parole be denied.
The Board concurred, determining that ―[t]he release from custody at this time would
depreciate the seriousness of the crime of which the offender stands convicted or promote
disrespect of the law,‖ and deferred the next parole hearing until 2018. Mr. Brennan,
unsuccessful in his appellate remedies before the Board, filed a petition of certiorari
based on Tennessee Code Annotated sections 27-9-101 and -102 in Davidson County
Chancery Court. Mr. Brennan asserted, among other things, that the Board’s decision was
illegal, contrary to established law, and arbitrary and capricious.
The trial court dismissed Mr. Brennan’s petition, finding that the Board’s decision
to deny parole due to the seriousness of the offense was not unfair, arbitrary, or
capricious. In its ruling, the trial court referenced the written statements and testimony
regarding Mr. Brennan’s work history, educational background, prison disciplinary
record, and completion of a sexual offender treatment program. The trial court considered
all issues raised by Mr. Brennan and concluded that it could not inquire into the intrinsic
correctness of the Board’s decision to deny parole. Mr. Brennan appealed.
The Court of Appeals did not consider the issues raised by Mr. Brennan. Instead,
the Court of Appeals determined Mr. Brennan’s release eligibility date was April 3, 2015,
which was six years from the date he began serving his sentence with no deduction for
sentence credits. The Court of Appeals reasoned that Mr. Brennan had served only
twenty percent of his sentence by the 2013 parole hearing, and the Board should have
waited to consider his suitability for parole until after he had served thirty percent of his
sentence. Based on its determination that Mr. Brennan’s hearing should have been in
April 2015, the Court of Appeals remanded the case to the trial court with instructions for
1
Mr. Brennan also pleaded guilty to two counts of incest and was sentenced to serve three years,
concurrently, for each count to be served concurrently with the attempted rape convictions. Mr. Brennan
has fully served the sentences for incest.
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the Board to conduct an immediate parole hearing for Mr. Brennan. Brennan v. Bd. of
Parole, No. M2014-01591-COA-R3-CV, 2015 WL 6326213, at *3–4 (Tenn. Ct. App.
Oct. 21, 2015).
We granted the Board’s application for permission to appeal.
II.
Prisoners do not have an absolute right to be released on parole. Hopkins v. Tenn.
Bd. of Paroles & Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001) (citing Graham v. State,
304 S.W.2d 622, 623–24 (Tenn. 1957)). Parole is a privilege, not a right. Tenn. Code
Ann. §§ 40-28-117(a)(1), 40-35-503(b); Tenn. Bd. Parole R. 1100-01-01-.02(2); see also
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (―There is
no constitutional or inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence.‖).
Neither party challenged the accuracy of the Tennessee Department of
Correction’s calculation of Mr. Brennan’s release eligibility date. The Court of Appeals
exceeded its authority by determining the date Mr. Brennan could be considered for
parole. Judicial review of a parole decision made by the Board is narrow; it is limited to
consideration of whether the Board exceeded its jurisdiction or acted illegally, arbitrarily,
or fraudulently. Tenn. Code Ann. § 27-8-101; Stewart v. Schofield, 368 S.W.3d 457, 463
(Tenn. 2012); Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn. 2003). The
reviewing court does not inquire into the intrinsic correctness of the Board’s decision,
reweigh the evidence, or substitute its judgment for that of the Board. State v. Lane, 254
S.W.3d 349, 355 (Tenn. 2008); Robinson v. Clement, 65 S.W.3d 632, 635 (Tenn. Ct.
App. 2001). The court considers only the manner in which the decision was made.
Stewart, 368 S.W.3d at 463 (citing Arnold v. Tenn. Bd. of Paroles, 956 S.W.2d 478, 480
(Tenn. 1997); Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct.
App. 1994)).
The Department of Correction is solely responsible for calculating a prisoner’s
release eligibility date. Tenn. Code Ann. § 40-35-501(a)(1), (r) (providing that,
―[n]otwithstanding any other law to the contrary, the [D]epartment is responsible for
calculating the sentence expiration date and the release eligibility date of any felony
offender sentenced to the [D]epartment and any felony offender sentenced to
confinement in a local jail or workhouse for one (1) or more years‖); id. § 40-28-129
(providing that the Department of Correction ―shall be responsible for calculating the
sentence expiration date and the earliest release date of any felony offender sentenced to
the [D]epartment of [C]orrection and any felony offender sentenced to confinement in a
county jail or workhouse for one (1) or more years‖); Shorts v. Bartholomew, 278 S.W.3d
268, 279 (Tenn. 2009) (holding that the Department of Correction calculates release
eligibility dates for Department of Correction prisoners, regardless of where the prisoners
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are confined); Stewart, 368 S.W.3d at 463 (holding that the Department of Correction has
sole authority to calculate an inmate’s release eligibility date).
The Court of Appeals exceeded its authority, and its calculation was flawed. In
determining when a prisoner is eligible for parole consideration, the Department of
Correction takes into account the prisoner’s behavior and his compliance with prison and
Department rules. A prisoner’s release eligibility date is conditioned on the prisoner’s
good behavior and service of a specific percentage of the sentence imposed less sentence
credits earned and retained by the prisoner. Tenn. Code Ann. § 40-35-501(b), (n). If there
is more than one conviction, the release eligibility date is calculated separately for each
conviction. Id. § 40-35-501(m). For consecutive sentences, the periods of eligibility for
release are calculated for each sentence and added together to determine the release
eligibility date. Id. The release eligibility date may be deferred to a later date, not to
exceed the length of the full sentence imposed. Id. § 40-35-501(n).
A prisoner may be awarded sentence reduction credits for good institutional
behavior or satisfactory performance in a program.2 Tenn. Code Ann.
§ 41-21-236(a)(2)(A); Tenn. Dep’t of Corr. Policy No. 505.01(VI)(K)(3)(a)–(b).
Sentence reduction credits are not earned or credited automatically but are awarded
monthly at the discretion of the prison warden based on criteria established by the
Department of Correction. Tenn. Code Ann. § 41-21-236(a)(3); Tenn. Dep’t of Corr.
Policy No. 505.01(VI)(K)(3)(e). A prisoner may lose sentence credits for certain
disciplinary offenses; the commission of certain major infractions; or the refusal to
participate in an assigned work, educational, or vocational training program. Tenn. Code
Ann. § 41-21-236(a)(4)–(6).
Because the calculations are based on several factors, including the accumulation
of good behavior and program credits, the release eligibility date is not a fixed date but
changes monthly based on sentence reduction credits earned and retained by the prisoner.
It is not a one-step calculation made by applying the prisoner’s release eligibility
percentage to the length of the sentence.
Based on the Department of Correction’s determination of Mr. Brennan’s release
eligibility date, the Board conducted Mr. Brennan’s parole hearing within a reasonable
time before his release eligibility date. See id. § 40-35-503(d)(1). The Board did not
2
Program credits may be awarded at the discretion of program supervisors based on the
following criteria: whether a prisoner arrives on time, is not late or absent without an official excuse, and
returns to work within a reasonable time after appointments; the prisoner applies himself to the work at
hand, remains at his program station, does not visit or allow himself to be distracted by others, and works
until quitting time; the prisoner accepts supervision well, listens to and carries out instructions, asks
questions if not sure of task requirements, and accepts orders without argument. Tenn. Dep’t of Corr.
Policy No. 505.01(VI)(K)(3)(e)(1)–(3).
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abuse its discretion or act arbitrarily or illegally by conducting a parole hearing in March
2013 and deferring the next parole hearing until 2018.3
In the interests of judicial economy, we now review the Board’s decision to
determine whether it acted illegally, fraudulently, or arbitrarily in denying parole to Mr.
Brennan. We do not reweigh the evidence or otherwise review the correctness of the
decision. Lane, 254 S.W.3d at 355 (citing Robinson, 65 S.W.3d at 635). The Board based
its denial of parole on Tennessee Code Annotated section 40-35-503(b)(2), which
provides for denial if the Board finds that ―release from custody at the time would
depreciate the seriousness of the crime of which the defendant stands convicted or
promote disrespect for the law.‖ See also Tenn. Bd. Parole R. 1100-01-01-.07(4). Courts
have repeatedly upheld Board decisions denying parole for this reason.4
3
Courts have held that a deferral of five years or more of a parole hearing is not arbitrary. See
Bibbs v. Tenn. Bd. of Parole, No. M2015-01755-COA-R3-CV, 2016 WL 1650302, at *5 (Tenn. Ct. App.
Apr. 22, 2016) (holding that a six-year deferral was not arbitrary); Tutton v. Tenn. Bd. of Prob. & Parole,
No. M2012-02513-COA-R3-CV, 2013 WL 6729811, at *3 (Tenn. Ct. App. Dec. 18, 2013) (holding that
the Board did not act arbitrarily or illegally in setting parole hearing six years from the last hearing);
Hendricks v. Tenn. Bd. of Prob. & Parole, No. M2010-01651-COA-R3-CV, 2011 WL 2135445, at *5
(Tenn. Ct. App. May 25, 2011) (holding that a six-year deferral was not arbitrary and was permissible
under Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d 429 (Tenn. Ct. App. 2003)); Turner v. Tenn. Bd. of
Prob. & Parole, No. M2009-01908-COA-R3-CV, 2010 WL 3928617, at *3 (Tenn. Ct. App. Oct. 6, 2010)
(holding that a six-year deferral was not arbitrary); Gordon v. Tenn. Bd. of Prob. & Parole, No.
M2006-01273-COA-R3-CV, 2007 WL 2200277, at *4 (Tenn. Ct. App. July 30, 2007) (holding that a
five-year deferral was not arbitrary); York v. Tenn. Bd. of Prob. & Parole, No.
M2005-01488-COA-R3-CV, 2007 WL 1541360, at *6 (Tenn. Ct. App. May 25, 2007) (affirming the trial
court’s finding that a six-year deferral based upon the seriousness of crimes was not arbitrary or
capricious); Berleue v. Tenn. Bd. of Prob. & Parole, No. M2005-00363-COA-R3-CV, 2006 WL
1540255, at *4 (Tenn. Ct. App. June 5, 2006) (holding that a five-year lapse between parole hearings was
not arbitrary).
4
Arnold, 956 S.W.2d at 482–83 (sexual offense); Bibbs, 2016 WL 1650302, at *3 (first degree
murder of an eleven-year-old girl); Witt v. Tenn. Bd. of Parole, No. M2013-02843-COA-R3-CV, 2014
WL 4536648, at *2 (Tenn. Ct. App. Sept. 12, 2014) (first degree murder); Pham v. Tenn. Bd. of Prob. &
Parole, No. M2013-00955-COA-R3-CV, 2014 WL 1512820, at *2 (Tenn. Ct. App. Apr. 15, 2014)
(attempted first degree murder); Massengale v. Tenn. Bd. of Prob. & Parole, No.
M2011-02249-COA-R3-CV, 2012 WL 3041298, at *2 (Tenn. Ct. App. July 25, 2012) (aggravated rape);
Richardson v. Tenn. Bd. of Prob. & Parole, No. M2008-02568-COA-R3-CV, 2009 WL 3046960, at *3
(Tenn. Ct. App. Sept. 23, 2009) (rape and armed robbery with a deadly weapon); McLemore v.
Traughber, No. M2007-00503-COA-R3-CV, 2007 WL 4207900, at *7 (Tenn. Ct. App. Nov. 28, 2007)
(rape, burglary, and crimes against nature); Williams v. Tenn. Bd. of Prob. & Parole, No.
M2006-02336-COA-R3-CV, 2007 WL 3132935, at *3 (Tenn. Ct. App. Oct. 26, 2007) (robbery by use of
a deadly weapon and murder during the perpetration of a robbery); Gordon, 2007 WL 2200277, at *2
(first degree murder); York, 2007 WL 1541360, at *2 (first degree murder); Berleue, 2006 WL 1540255,
at *3 (first degree murder); Meeks v. Traughber, No. M2003-02077-COA-R3-CV, 2005 WL 280746, at
*3 (Tenn. Ct. App. Feb. 4, 2005) (aggravated kidnapping, aggravated robbery, and extortion); Baldwin,
125 S.W.3d at 431 (first degree murder); Ali v. Tenn. Bd. of Prob. & Parole, No.
M2001-01194-COA-R3-CV, 2002 WL 83608, at *2 (Tenn. Ct. App. Jan. 22, 2002) (first degree burglary,
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Mr. Brennan argues that, although the offense of attempted rape of a child is a
parole-eligible offense, the Board denied parole solely because he committed a sexual
offense. Mr. Brennan submits that the Board failed to provide a detailed reason for its
decision and failed to consider the specific facts of the offense; Mr. Brennan’s good
institutional record; his completion of a sexual offender treatment program; his remorse
and apology to the victim; his personal circumstances; the support for parole from the
victim, family members, and friends; and his plans upon release.
Parole decisions are fact-intensive, and the record does not support Mr. Brennan’s
conclusory statement that he was denied parole based solely on the nature of his offense.
The Board’s hearing officer stated he had considered the various written and oral
statements submitted by Mr. Brennan and would provide the listed materials to the Board
for review. The hearing officer questioned Mr. Brennan regarding the offenses and the
efforts he had made while incarcerated to improve his educational, vocational, and
employment skills. Tenn. Code Ann. § 40-35-503(g). Mr. Brennan faults the Board for
not giving a detailed explanation for its decision; however, the Board gave an adequate,
legally-sufficient explanation for its decision and was not required to provide a more
detailed reason. Hopkins, 60 S.W.3d at 83; Boyd, 2001 WL 360702, at *2; Jordan, 1997
WL 13756, at *4. Mr. Brennan contends he has done well in prison; has the support of
the victim, family members, and friends; has undergone sexual offender treatment; and
has a plan for the future. These facts, while favorable to Mr. Brennan, do not entitle him
to parole. See Hamilton v. Tenn. Bd. of Prob. & Parole, No. M2016-00458-COA-R3-CV,
2016 WL 6581923, at *2 (Tenn. Ct. App. Nov. 4, 2016); Bibbs, 2016 WL 1650302, at *3;
Witt, 2014 WL 4536648, at *2; Hopkins, 60 S.W.3d at 83; Robinson, 13 S.W.3d at 364.
armed robbery, and aggravated rape); Harris v. Traughber, No. M2000-01146-COA-R3-CV, 2001 WL
788423, at *3 (Tenn. Ct. App. July 13, 2001) (sexual battery, aggravated sexual battery, and rape);
Hopkins, 60 S.W.3d at 83 (aggravated rape); Dyer v. Tenn. Bd. of Paroles, No.
M1999-00787-COA-R3-CV, 2001 WL 401596, at *2 (Tenn. Ct. App. Apr. 23, 2001) (first degree murder
and grand larceny); Boyd v. Tenn. Bd. of Paroles, No. M1998-00914-COA-R3-CV, 2001 WL 360702, at
*2 (Tenn. Ct. App. Apr. 12, 2001) (second degree murder); Sweatt v. Tenn. Bd. of Paroles, No.
M1999-02265-COA-R3-CV, 2000 WL 1514071, at *3–4 (Tenn. Ct. App. Oct. 12, 2000) (aggravated rape
of eleven-year-old child); Johnson v. Traughber, No. M1999-02472-COA-R3-CV, 2000 WL 1183083, at
*2 (Tenn. Ct. App. Aug. 22, 2000) (robbery); Robinson, 13 S.W.3d at 363 (armed robbery and aggravated
kidnapping); Miller v. Tenn. Bd. of Paroles, No. 01A01-9804-CH-00177, 1999 WL 159726, at *2 (Tenn.
Ct. App. Mar. 24, 1999) (rape, incest, and aggravated rape of his daughter, who was less than thirteen
years old at the time of the offenses); Tomlinson v. Traughber, No. 01-A-01-9703-CH00143, 1997 WL
330650, at *2 (Tenn. Ct. App. June 18, 1997) (aggravated rape, assault with attempt to murder, and
attempt to commit rape); Jordan v. Tenn. Bd. of Paroles, No. 01A-01-9607-CH-00347, 1997 WL 13756,
at *4 (Tenn. Ct. App. Jan. 16, 1997) (aggravated rape, armed robbery, and second degree murder); South
v. Tenn. Bd. of Paroles, 946 S.W.2d 310, 312 (Tenn. Ct. App. 1996) (aggravated sexual battery of his
three granddaughters, each under the age of thirteen); Mosley v. Tenn. Bd. of Paroles, No.
01A-01-9604-CH-00162, 1996 WL 631477, at *3 (Tenn. Ct. App. Nov. 1, 1996) (burglary and
aggravated robbery); Dalton v. Tenn. Bd. of Paroles, No. 01-A-01-9601-CH00029, 1996 WL 230209, at
*5 (Tenn. Ct. App. May 8, 1996) (aggravated rape and sexual battery of twelve-year-old stepdaughter and
violation of bond).
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The Board was required to consider a number of factors in making its decision.5
We have carefully reviewed the evidence presented to the Board, which shows that Mr.
Brennan has the support of the victim, his family, and friends; has behaved well as a
prisoner; regrets his wrongful actions; has apologized to the victim; and has plans for the
future that include employment, church attendance, and continued sexual offender
therapy. Mr. Brennan has served only a small portion of his twenty-year sentence for
sexually assaulting his ten-year-old sister over a period of a month and a half. After
considering these and other factors, the Board denied parole, as was its prerogative. It is
not our role to inquire into the intrinsic correctness of the Board’s decision.
There is no indication the Board acted illegally, fraudulently, or arbitrarily in
denying Mr. Brennan parole based on the seriousness of the offense. The evidence does
not support Mr. Brennan’s claim that the Board categorically denied parole without
considering the appropriate factors. Essentially, Mr. Brennan challenges the intrinsic
correctness of the Board’s decision, which is beyond the scope of appellate review.
Arnold, 956 S.W.2d at 480; Powell, 879 S.W.2d at 873. The Board appropriately
considered and followed the statutory mandate to deny parole based upon its finding that
release from custody would depreciate the seriousness of the crime for which Mr.
Brennan was convicted or would promote disrespect for the law.
III.
We affirm the Chancery Court’s decision upholding the Board’s denial of parole
and reverse the decision of the Court of Appeals. It appearing that Mr. Brennan is
indigent, costs of this appeal are taxed to the Tennessee Board of Parole.
SHARON G. LEE, JUSTICE
5
The Board may consider the following criteria to determine whether to grant or deny parole: the
nature of the crime and its severity; the prisoner’s previous criminal record; the prisoner’s institutional
record; the prisoner’s circumstances if returned to the community; any mitigating or aggravating
circumstances surrounding the offense; views of the community, victims of the crime or their family,
institutional staff, probation and parole officers, or other interested parties; the prisoner’s training,
including vocational and educational achievements; the prisoner’s employment history, his occupational
skills, and the stability of his past employment; and any other factors the Board deems relevant. Tenn. Bd.
Parole R. 1100-01-01-.07(1). In addition, the Board was required to consider whether there is a
substantial indication that he will not conform to the conditions of parole; whether early release from
custody would depreciate the seriousness of the crime, promote disrespect for the law, or have a
substantially adverse effect on institutional discipline; and whether continued treatment, medical care, or
training in the institution will substantially improve his ability to lead a law-abiding life when given
release status at a later time. Tenn. Code Ann. § 40-35-503(b); Tenn. Bd. Parole R. 1100-01-01-.07(4).
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