Fred Auston Wortman, III v. State of Tennessee, Tennessee Board of Parole ( 2021 )

11/08/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 1, 2021
FRED AUSTON WORTMAN, III v. STATE OF TENNESSEE, TENNESSEE
BOARD OF PAROLE, ET AL.
Appeal from the Chancery Court for Davidson County
No. 20-217-IV Russell T. Perkins, Chancellor
No. M2021-00068-COA-R3-CV
This appeal concerns a denial of parole. Fred Austin Wortman, III (“Wortman”) pled guilty
to two counts of attempted first degree murder and one count of solicitation of first degree
murder, all stemming from Wortman’s repeated attempts to kill his wife. Wortman was
sentenced to thirty years in prison. After a parole hearing, the Tennessee Board of Parole
(“the Board”) denied Wortman parole due to the seriousness of his offenses and the
substantial risk that he would not conform to the conditions of release. Wortman
subsequently filed a petition for writ of certiorari in the Chancery Court for Davidson
County (“the Trial Court”) challenging the Board’s decision. The Trial Court affirmed the
Board’s decision. Wortman appeals to this Court raising a number of issues. We affirm
the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Fred Auston Wortman, III, Wartburg, Tennessee, pro se appellant.
Herbert H. Slatery, III, Attorney General and Reporter, and Pamela S. Lorch, Senior
Assistant Attorney General, for the appellees, Tennessee Board of Parole, Gary Faulcon,
Gay Gregson, Roberta Kustoff, Richard Montgomery, Tim Gobble, Zane Duncan, Barrett
Rich, Rob Clark, Jim Purviance, Gayle Barbee, Richard O’Bryan, Mark Edward Davidson,
Paul Hagerman, F/N/U Stewart.
OPINION
Background
Wortman, an attorney and father of three, pled guilty to two counts of attempted
first degree murder and one count of solicitation of first degree murder. On September 19,
2019, Wortman had his initial parole hearing. On the day of his parole hearing, Wortman
had served approximately four years and three months of his thirty-year sentence.
Hearing Officer Faulcon (“Faulcon”) asked Wortman about each of his offenses,
beginning with one out of Shelby County. Faulcon set out the facts. In February 2015, the
Collierville Police Department received a call from Attorney Terry Cox, who reported
finding information on a computer at his law firm about how to hire a hitman. A picture
of Wortman’s wife was also found on the computer saved under the file name “AW.” The
Collierville officers requested FBI assistance. Detectives called Wortman to explain to
him that they knew about his research on hiring a hitman. Wortman had also been
researching poisons on the computer in question. Wortman was put on notice not to have
any contact with his wife.
After Wortman’s wife mentioned that she became ill after brushing her teeth with
Crest toothpaste, her tube of toothpaste was sent for lab testing. It turned out that the
toothpaste contained poison of a kind that Wortman had previously researched on the
computer. Wortman’s young daughter had also used the toothpaste. Asked by Faulcon if
he wished to correct or add anything about these facts, Wortman stated: “Your Honor, the
summary you have just read is -- is -- is the record. And that -- that’s what is before this
body, yes, sir.” Asked directly by Faulcon if he put the poison in his wife’s toothpaste,
Wortman stated: “Yes, sir.”
Faulcon moved on to the second offense. On June 5, 2015, Wortman met with a
man he believed to be a hitman. The “hitman” was, in fact, an undercover agent with the
Tennessee Bureau of Investigation. Wortman showed the agent a picture of his wife; gave
him a down payment in cash; and discussed how the purported hitman would receive the
remaining funds after the job was completed. Wortman recounted the incident as follows:
“I had been in contact with -- who turned out to be an undercover agent with the TBI. We
had scheduled a meeting for that day, there in Fayette County, to discuss … a hit on my
ex-wife.” Wortman continued: “During the -- during that particular meeting or during that
meeting, the facts were that we discussed the -- his -- whether he would be able to kill my
wife -- or wife at the time.” Wortman was arrested after this meeting.
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Faulcon then moved to the third offense. While incarcerated in July 2015, Wortman
offered another inmate money to kill Wortman’s wife. Wortman stated: “At that time, he
-- apparently, his -- he had seen the news or was aware of the news of my presence in that
jail, and he approached me and said he could -- he could make problems disappear. And I
basically fell in with what he was saying.”
Wortman then listed the classes he had taken while incarcerated. Wortman stated
that, if he were released, he would live with his parents in northwest Tennessee. Wortman
stated that he had certain job opportunities available to him. Faulcon noted that the Board
received numerous letters for and against parole for Wortman. Likewise, at the hearing, a
number of people spoke for and against parole for Wortman. Among the speakers in
opposition were District Attorney Mark Davidson (“Davidson”) of Fayette County and
Paul Hagerman (“Hagerman”) from the District Attorney’s office in Memphis. Wortman
made his own statement, as well.
At the conclusion of the parole hearing, Faulcon recommended denial of parole for
Wortman. Faulcon explained his reasoning as follows:
Before I make my recommendation, let me remind you, Mr. Wortman,
that I am just one of four concurring votes that you need. As I stated earlier,
your file will be sent to the other Board members. They will review it also.
So my vote alone is just that: my vote. You need four concurring votes to --
to grant or deny your parole.
I would also like to thank everyone that has come out today, whether
you were in support or opposition of Mr. Wortman’s release. I thank you for
coming out. I thank the speakers for everything that they have said today.
Mr. Wortman, you have done very well with your programming and
your discipline. You have stayed out of trouble. You have sought classes to
-- to help you out, to move on with your life.
However, I cannot overlook the impact of these crimes and the impact
that it had on the victim, the community, and everyone else involved.
I also cannot overlook the seriousness of this crime. You tried to kill
your wife at least three times. And on one of those occasions, it almost --
well, it put your -- your -- your small child in harm’s way, and it could have
harmed her. That’s very disturbing.
It appears that you had a complete disregard for any collateral damage
while trying to kill your wife.
My recommendation today is to decline your parole based on the
seriousness of the offense; and, that is, the release from this -- the release
from custody at this time would depreciate the seriousness of the crime.
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I feel that you’re a high risk, Mr. Wortman, specifically based on your
previous actions alone. Again, not once, not twice, but three times you tried
to kill Ms. -- Mrs. Wortman; and, thankfully, it didn’t happen.
So, again, my recommendation is to decline you based on the
seriousness of the offense, being a high risk. And I will review -- or my
recommendation is to review you again in the year of 2026.
Now, not that you agree with my recommendation, Mr. Wortman, but
do you have any question about the process as we go forward?
INMATE WORTMAN: No, sir.
HEARING OFFICER FAULCON: Okay. Again, decline the balance
seriousness of the -- decline the balance for the seriousness of the defense
[sic]. High risk. Review September 2026.
Again, thank you all for coming….
In the end, four Board members voted unanimously to deny Wortman parole. On
the Board of Parole Action Sheet regarding Wortman’s hearing, each Board member’s
explanation for their vote was set out as follows:
SO - The 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: T.C.A. 40-35-503(b)(2)
HR - There is substantial risk that the offender will not conform to the
conditions of release: T.C.A. 40-35-503(b)(1)
The Board also sent Wortman a letter informing him of its decision. Wortman filed an
administrative appeal. In January 2020, Wortman’s administrative appeal was denied.
In February 2020, Wortman filed his verified petition for writ of certiorari and
complaint in the Trial Court asserting various causes of action and seeking review of the
Board’s decision. The Board filed a motion to dismiss the complaint portion of Wortman’s
filing. Rather than dismiss Wortman’s complaint, the Trial Court severed it from the
petition; assigned it a docket number; and allowed it to proceed as a separate case. For his
part, Wortman filed a motion seeking remand to the Board for discovery. In April 2020,
the Trial Court entered an order denying Wortman’s motion, stating in pertinent part:
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In a parole release hearing, the Board gathers and reviews documents and
information it deems relevant to parole consideration and hears testimony
from the inmate, his witnesses, the victim, and other interested community
members, such as the district attorney and judge who presided over the
criminal trial, as well as the sheriff, the victim’s family, and other interested
persons. See Tenn. Comp. R. & Regs. 1100-01-01-.06. There is no provision
in the Board’s Rules for discovery by the parties.
In this matter, Petitioner did not seek discovery prior to the parole
release proceedings. Further, Petitioner did not submit discovery requests to
the Board until he filed an administrative appeal of the Board’s parole
decision. There is no provision in the Board’s Rules for a party to engage in
discovery during the administrative appeal. Further, Local Rule § 25
contains rules specific to judicial review of administrative agency decisions
and does not provide for discovery. Instead, Local Rule § 25 provides that
the parties shall submit legal briefs to the Court upon the administrative
agency’s submission of the administrative record below.
In May 2020, the Trial Court entered an order granting Wortman’s petition for writ
of certiorari “to the extent it seeks to have the administrative record transmitted to this
Court.” The Board was ordered to “make, certify and transmit to the Court the entire, true
and correct record of the aforementioned proceedings had before you and on file in your
office and make return of this Writ showing how you have obeyed the same within thirty
(30) days of issuance, pursuant to Tenn. Code Ann. § 27-9-109.”
In July 2020, Wortman filed a motion seeking an order from the Trial Court
requiring the Board to file the “entire administrative record”; in the alternative, to remand
to the Board for discovery; for leave to present “supplemental evidence that was knowingly
withheld by the defendants in the filing of the sanitized, self-serving, partial record”; and
for sanctions. In August 2020, the Trial Court denied Wortman’s motion, stating in
pertinent part:
In his Motion, Petitioner claims that Respondents did not file the
complete administrative record and cites to Exhibit A, which are materials
the Board produced to Petitioner in response to his public records request.
However, a comparison of Exhibit A and the non-confidential portion of the
record shows that the Board filed the complete non-confidential portion of
the record. The materials in the public record response contain all of the non-
confidential portion of the record as well as materials which are not part of
the administrative record, namely, the Tennessee Parole Release Decision
Making Guidelines, the Rules of the Tennessee Board of Parole, the Average
Time Served Chart, and the Board of Parole Unit Manual.
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***
[T]he Court hereby finds that Respondents have filed the complete non-
confidential portion of the record. To this end, Petitioner’s Motion is denied.
With respect to the confidential portion of the record, the Court will address
this matter by separate Order once the matter comes before the Court for
determination on the papers on August 14, 2020. As such, the issue of the
confidential portion of the record is reserved until August 14, 2020.
In his motion for leave to present supplemental evidence, which was
pled in the alterative, Petitioner appears to seek an Order remanding this case
to the Board to allow Petitioner to pursue discovery in an effort to obtain
supplemental evidence. However, the Court has already determined this
issue in its Order entered April 22, 2020, wherein it denied Petitioner’s
request for remand and discovery.
Next, Petitioner moves the Court to impose sanctions upon
Respondents for “knowingly and willfully failing to file the entire, whole and
complete administrative record[.]” Motion, p. 23. However, as set forth
above, the Court determines that Respondents have filed the complete non-
confidential portion of the record. Further, Respondents did not file the
confidential portion of the record pursuant to its authority under Tenn. Code
Ann. § 40-28-119 to “make rules, as it deems proper, as to the privacy of the
record ... and [its] use by others than the board and its staff” and Tenn. Comp.
R. & Regs. 1100-01-01-.15(1)(a) that “information . . . in the Board’s file . .
. considered confidential by the Board . . . will not be released[.]” Tenn.
Code Ann. § 40-28-119; Tenn. Comp. R. & Regs. 1100-01-01-.15(1)(a). As
there was no willful failure to comply with the law and as legal authority
supports Respondents’ actions, Petitioner’s motion for sanctions is denied.
In July 2020, the Board filed a motion asserting that a portion of the administrative
record was confidential pursuant to Tenn. Code Ann. §§ 40-28-119, 40-28-504(b) and 40-
28-505(h)(1) and Tenn. Comp. R. & Regs. 1100-01-01-.15. The Board sought to file this
confidential portion of the record under seal. In August 2020, the Trial Court entered an
order granting the Board’s motion, stating in pertinent part:
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Here, the confidential portion of the record contains the offense report, which
contains statements by the victim and others, as well as information from
other state agencies; the portion of the Board action sheet that contains
opposition statements, information and materials from other state agencies;
notice letters to victims; and victim impact statements. This information is
confidential pursuant to Tenn. Comp. R. & Reg. 1100-01-01-.15. The victim
impact statement is also confidential pursuant to Tenn. Code Ann. § 40-28-
504(b), and the notice letters to victims are confidential pursuant to Tenn.
Code Ann. § 40-28-505(h)(1).
In September 2020, Wortman filed a motion for instructions and for an order
imposing a negative spoliation inference against the Board. In October 2020, the Trial
Court entered an order denying Wortman’s motion, stating in pertinent part:
In his motion, Mr. Wortman claims he has a right to review the
confidential portion of the administrative record that was filed under seal.
He also claims that the Board has not submitted the following documents in
the administrative record:
1. Exhibit A: The Board of Parole Unit Manual, Average Time Served
Chart, and the Tennessee Parole Release Decision Making Guidelines;
2. Exhibit B: September 11, 2019 letter from District Attorney
General Mark E. Davidson to Richard Montgomery, Chairman Tennessee
Board of Parole;
3. Exhibit C: December 6, 2019, December 20, 2019 and February 3,
2020 letters from Rob Clark, Board of Parole General Counsel to Fred
Wortman #558354;
4. Alford Plea Agreement between Petitioner and State of Tennessee;
and
5. Petitioner’s Risk Assessment score.
Mr. Wortman claims that, because the Board has not filed these documents,
he is entitled to an Order imposing a “spoliation of evidence” negative
inference.
The Court has already addressed Mr. Wortman’s desire to review the
confidential portion of the administrative record in its Order entered August
14, 2020….
***
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Next, Mr. Wortman claims that the Board did not file the complete
administrative record and cites to Exhibit A, which are materials the Board
produced to Mr. Wortman in response to his public records request. As
previously stated in the Court’s August 10, 2020 Order,
a comparison of Exhibit A and the non-confidential portion of
the record shows that the Board filed the complete non-
confidential portion of the record. The materials in the public
record response contain all of the nonconfidential portion of
the record as well as materials which are not part of the
administrative record, namely, the Tennessee Parole Release
Decision Making Guidelines, the Rules of the Tennessee Board
of Parole, the Average Time Served Chart, and the Board of
Parole Unit Manual.
Order (Aug. 10, 2020), pp. 1-2.
The Alford Plea Agreement between Mr. Wortman and the State is
not part of the administrative record. No one, including Mr. Wortman,
entered a copy of the alleged Alford Plea Agreement into the administrative
record below. Therefore, said Agreement is not part of the administrative
record. The other materials that Mr. Wortman claims are not in the
administrative record are, in fact, in the record. The September 11, 2019
letter from District Attorney General Davidson to Richard Montgomery,
Chairman of the Board, is in the confidential portion of the record at Page
169. The Risk Assessment Score is in the confidential portion of the record,
beginning at Page 23. The December 6, 2019 and December 20, 2019 letters
from Attorney Rob Clark to Mr. Wortman are in the non-confidential portion
of the record at Pages 266 and 278. The February 3, 2020 letter from
Attorney Clark to Mr. Wortman is not in the record because the
administrative record ended with the Board’s denial of Mr. Wortman’s
administrative appeal on January 13, 2020. The administrative appeal denial
letter concluded the proceedings and concluded the record. See
Administrative Record, p. 233.
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Mr. Wortman claims that, on the basis of the negative spoliation
doctrine, the Court must accept as true his allegation that District Attorney
General Davidson and Board member Faulcon engaged in an ex parte
meeting in which District Attorney General Davidson bribed Mr. Faulcon to
deny Mr. Wortman parole release. However, none of the materials Mr.
Wortman claims as a basis for the application of the doctrine are relevant to
or support this claim. Mr. Wortman also claims that he is entitled to the
inference that this Court must take as true the allegations that he has alleged.
The Court is under no duty to take Mr. Wortman’s allegations as true, as Mr.
Wortman has failed to present valid grounds for the imposition of sanctions
and the materials at issue are not relevant to the claims he alleges.
In December 2020, the Trial Court entered its order affirming the Board’s decision
to deny Wortman parole. The Trial Court found and held, in relevant part:
After a thorough review of the record, the Court determines that the
Board did not act illegally, fraudulently or in excess of its authority by
denying Mr. Wortman parole based upon the seriousness of the offenses and
a substantial risk that Mr. Wortman would not abide by the conditions of
release. Mr. Wortman pled guilty to his crimes at trial and admitted his guilt
at the parole hearing. Mr. Wortman attempted to murder his wife, then
attempted to hire a hitman to murder her, and, while imprisoned, again
attempted to hire a hitman. Mr. Wortman’s unrelenting, focused efforts to
kill his wife, despite the authorities’ discovery and efforts to stop him, not
only support the denial of parole due to seriousness of the offenses but also
due to a substantial risk of nonconformance to the conditions of release.
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The majority of Mr. Wortman’s brief is based upon his allegation that
there was a closed-door, private, secret, ex parte meeting between Board
member Faulcon and Assistant District Attorney Davidson immediately prior
to the parole hearing. This allegation is unsupported by any evidence in the
record. The record demonstrates that Board member Faulcon participated in
the parole hearing from Murfreesboro, Tennessee.1 See A.R. at 3. District
Attorney General Davidson participated by teleconference from Nashville,
Tennessee. See id. at 24, 26, 40. Mr. Wortman and his supporters
participated by teleconference from the Morgan County Correctional
Complex in Wartburg, Tennessee. See id. at 3, 24, 63. People opposed to
parole participated by teleconference from Jackson, Tennessee. See id. at 24,
26, 65. As Board member Faulcon and District Attomey General Davidson
were not in the same city, it would be geographically and physically
impossible for the two to join in an ex parte, closed-door meeting in
Nashville, Tennessee immediately prior to the parole hearing as suggested
by Mr. Wortman.
The Court has previously considered and rejected Mr. Wortman’s
claims that Respondent failed to include materials in the record. See Order
entered August 10, 2020. The only new material Mr. Wortman claims is not
in the record - District Attorney General Amy Weirich’s October 18, 2017
letter to the Board - is in fact in the record at Page 230. The Court also
previously considered and rejected Petitioner’s claim that he was entitled to
file discovery and serve subpoenas on the Board subsequent to the parole
hearing. See Orders entered April 22, 2020 and August 10, 2020. The Court
ordered the confidential portion of the record, filed under seal, to be viewed
by the Court and its staff only. See Order entered August 14, 2020. The
Court also previously denied Mr. Wortman’s motion for sanctions, finding
that Respondent properly complied with the law regarding the confidential
and non-confidential portions of the record. See Order entered August 10,
2020.
1
“Hearing Officer Faulcon was present at the Murfreesboro Field Office in Murfreesboro, Tennessee.”
A.R. at 3.
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Mr. Wortman claims that the Board failed to file with the Court the
Alford Plea Agreement entered between Mr. Wortman and the State in his
criminal proceedings. A review of the administrative record shows that no
one, including Mr. Wortman, submitted the Alford Plea Agreement to the
Board for its consideration. As the Alford Plea Agreement was not submitted
to the Board, it is not part of the record below. Despite this, Mr. Wortman’s
claims under the alleged Alford Plea Agreement provide no basis for relief.
Mr. Wortman alleges that the Alford Plea Agreement provides that he would
be released on parole after serving 30% of his sentence. Mr. Wortman was
sentenced to 30 years. Thirty percent of a 30-year sentence is nine years. As
of the date of Mr. Wortman’s initial parole hearing on September 19, 2019,
Mr. Wortman had only served approximately 4 years of his sentence.2 See
A.R. at 7, 62.
For the foregoing reasons, the Court determines that the Board did not
act illegally, fraudulently or in excess of its authority by denying Mr.
Wortman parole based upon the seriousness of the offenses and a substantial
risk that Mr. Wortman would not abide by the conditions of release.
Accordingly, the Court hereby AFFIRMS the decision of the Tennessee
Board of Probation and Parole, denying parole to Mr. Wortman based on the
seriousness of the offenses and substantial risk of nonconformance to the
conditions of release. Costs of this cause, including any facsimile filing fees,
are taxed to Petitioner, Fred Auston Wortman, III, for which execution may
issue if necessary.
(Footnotes in original).
Wortman filed a motion to alter or amend the Trial Court’s judgment. The Board
filed a response in opposition. In February 2021, the Trial Court denied Wortman’s motion
to alter or amend. Wortman timely appealed to this Court.
2
“Your - - your sentence expires on or about August the 16th, 2043. You have served approximately four
years and three months.” A.R. at 7.
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Discussion
Wortman raises seven issues with multiple sub-arguments on appeal. We restate
and consolidate Wortman’s issues into the following dispositive issues: 1) whether the
Trial Court erred by declining to rule that the administrative record was incomplete or that
Wortman was entitled to conduct discovery; 2) whether the Trial Court erred by declining
to find that the Board’s decision was illegal because of alleged ex parte communications
between Davidson, Faulcon, and other members of the Board; 3) whether the Trial Court
erred in declining to find that Wortman was entitled to release upon completion of 30% of
his sentence pursuant to an Alford plea agreement Wortman entered into with the State; 4)
whether the Trial Court erred in declining to find that the Board acted illegally, arbitrarily,
or fraudulently; and, 5) whether the Trial Court erred by declining to rule that the Board
improperly converted a determinate sentence into an indeterminate sentence.
Our Supreme Court has discussed the limited standard of review applicable to
decisions by the Board to grant or deny parole as follows:
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, 202 Tenn. 423, 304 S.W.2d 622, 623-24
(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, 99
S.Ct. 2100, 60 L.Ed.2d 668 (1979) (“There is no constitutional or inherent
right of a convicted person to be conditionally released before the expiration
of a valid sentence.”).
***
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)).
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Brennan v. Bd. of Parole, 512 S.W.3d 871, 873 (Tenn. 2017). “In writ of certiorari
proceedings, a court does not have the authority to reweigh the evidence presented to the
Board or substitute its own judgment for that of the Board.” Greenwood v. Tennessee Bd.
of Parole, 547 S.W.3d 207, 216-17 (Tenn. Ct. App. 2017) (citing Young v. City of
LaFollette, 353 S.W.3d 121, 124 (Tenn. Ct. App. 2011)). “[I]f no material evidence exists
to support the Board’s decision, it is arbitrary or illegal.” Id.We first address whether the Trial Court erred by declining to rule that the
administrative record was incomplete or that Wortman was entitled to conduct discovery.
In his brief, Wortman asserts several examples of documents he contends the Board
wrongly withheld or failed to file as part of the administrative record, to wit: (1) “internal
documents that the Board Members reference and rely on when making a parole
decision…[a]s an example, attached hereto are exemplar computer screens used by the
Board”; (2) “certain written correspondence submitted by Davidson to the Board”; (3) “the
Board apparently filed certain documents under seal and did not provide a copy of the
sealed documents to Appellant”; (4) “the Board did not include various written
correspondence from [Board Counsel] Clark to Appellant”; (5) “the Board failed to
produce the Alford Plea Agreement entered into between the State and the Appellant and
which was memorialized in court orders”; (6) “the Board failed to produce, apparently for
self-serving purposes, the risk assessment score that Stewart sought to change by applying
pressure and illegal influence to Counselor Seiver. Appellant submits that the risk
assessment shows that Appellant has the lowest possible risk score that the assessment
provides”; and (7) “the Board filed only one document authored by District Attorney Amy
Weirich … [h]owever, Weirich filed at least one other document.” Wortman further argues
that “the Trial Court erred in failing to impose sanctions against the Appellees for their
failure to file the complete administrative record….”
Wortman cites two cases, Livingston v. State of Tenn. Bd. of Paroles, No. M1999-
01138-COA-R3-CV, 2001 WL 747643 (Tenn. Ct. App. July 5, 2001), no appl. perm.
appeal filed, and Horton v. Tenn. Dep’t of Corr., No. M1999-02798-COA-R3-CV, 2002
WL 31126656 (Tenn. Ct. App. Sept. 26, 2002), no appl. perm. appeal filed,3 both for the
proposition that on common law writ of certiorari review, the entire administrative record
rather than just a portion of it must be filed. However, there are important distinctions
between Livingston and Horton and the present case. In Livingston, this Court stated:
3
Wortman also cites a third case on this issue, Davis v. Maples, No. M2002-02564-COA-R3-CV, 2003
WL 22002660 (Tenn. Ct. App. Aug. 25, 2003), no appl. perm. appeal filed. However, Davis v. Maples
was designated a “memorandum opinion” pursuant to Rule 10 of this Court and may not be cited or relied
upon in any unrelated case.
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[T]he writ was never issued, and the record of the Board’s hearing was not
filed. Mr. Livingston’s petition was met with a motion for summary
judgment on behalf of the Board. Attached to the motion was an affidavit of
the custodian of the records of the Board, certifying the authenticity of
various documents, also attached to the affidavit, from the Board’s files
regarding Mr. Livingston. The affidavit does not state that those documents
constitute the entire record of Mr. Livingston’s parole revocation proceeding.
Thus, the Board apparently filed portions of the record of its proceedings but
did not file a certified copy of its entire record of the proceeding being
challenged….
Livingston, 2001 WL 747643, at *5.
In Horton, this Court, after quoting favorably from Livingston, stated:
[T]he trial court directed the Department to “submit any necessary
documents or affidavits for the court to consider” on only one of Mr.
Horton’s allegations. The trial court should have issued the writ of certiorari
directing the Department to file the official record in both of the challenged
proceedings. The end result of the procedure followed by the trial court is
that we have before us only selected portions of the disciplinary board’s
record along with new materials prepared in response to the trial court’s
directions. This is no way to run a railroad. Nevertheless, to decide whether
the trial court correctly dismissed Mr. Horton’s petition, we will work with
the record we have.
Horton, 2002 WL 31126656, at *2.
In contrast to these preceding cases, the Trial Court, per its May 2020 order, issued
the writ and instructed the Board to “make, certify and transmit to the Court the entire, true
and correct record of the aforementioned proceedings had before you and on file in your
office and make return of this Writ showing how you have obeyed the same within thirty
(30) days of issuance, pursuant to Tenn. Code Ann. § 27-9-109.”4 In its August 2020 order,
the Trial Court found “that Respondents have filed the complete non-confidential portion
of the record.” (Emphasis added). Wortman argues, nevertheless, that the record is
incomplete.
4
Tenn. Code Ann. § 27-9-109 provides:
(a) Immediately upon the grant of a writ, the board or commission shall cause to be made,
certified and forwarded to such court a complete transcript of the proceedings in the cause,
containing also all the proof submitted before the board or commission.
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Our review reflects that certain items Wortman states were wrongly excluded from
the record are, in fact, found in the confidential portion of the record, namely: the
September 11, 2019 letter from Davidson to Chairman Richard Montgomery; Wortman’s
risk assessment score; and an additional letter by District Attorney Amy Weirich. The
Trial Court had the authority to grant the Board’s motion to file this confidential portion of
the record under seal. See Hickman v. Tenn. Bd. of Prob. and Parole, No. M2001-02346-
COA-R3-CV, 2003 WL 724474, at *7 (Tenn. Ct. App. Mar. 4, 2003), no appl. perm.
appeal filed (“Obviously, the Board is not required to provide to Mr. Hickman any records
that are made confidential by a rule promulgated pursuant to a specific grant of statutory
authority.”); Tenn. Code Ann. § 40-28-119(b) (2018) (“The board may make rules, as it
deems proper, as to the privacy of the record and of the records of its employment bureau,
and their use by others than the board and its staff.”); Tenn. Comp. R. & Regs. 1100-01-
01-.15 (1) (setting forth what constitutes confidential information).
In addition, as found by the Trial Court, the Tennessee Parole Release Decision
Making Guidelines, the Rules of the Tennessee Board of Parole, the Average Time Served
Chart, and the Board of Parole Unit Manual are not part of the administrative record.
Wortman’s alleged Alford plea agreement was never introduced. Finally, two of the letters
sent to Wortman by Clark, counsel for the Board, are found in the administrative record.
A third letter, dated February 3, 2020, was not included because it was sent after the
Board’s denial of Wortman’s administrative appeal. Therefore, each document that
Wortman asserts was improperly excluded from the administrative record can be found in
the administrative record or else is not properly part of the administrative record. With
respect to Wortman’s request for discovery, Wortman points to no provision in the Board’s
rules or elsewhere in the law showing that the Board was required to respond to any
subpoenas, interrogatories, or document production requests Wortman made after his
parole hearing. In sum, the administrative record is complete, and there is no basis for
Wortman’s request for sanctions against the Board. This issue is without merit.
(b) The clerk of such court shall promptly, by registered return-receipt mail, notify each
party named as defendant in the petition of the filing of such transcript.
Tenn. Code Ann. § 27-9-109 (2017).
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We next address whether the Trial Court erred by declining to find that the Board’s
decision was illegal because of alleged ex parte communications between Davidson,
Faulcon, and other members of the Board. However, Wortman points to no evidence in
the record for these alleged ex parte communications; he relies only upon his “information
and belief” as stated in his verified petition. As to Wortman’s allegation of a “closed-door”
meeting between Faulcon and Davidson, we note that the record reflects Faulcon was in
Murfreesboro, Tennessee while Davidson was in Nashville, Tennessee and participated in
the hearing via teleconference, making any such private, in person closed-door meeting
exceedingly difficult.
Undaunted, Wortman argues in his reply brief that, because the Board filed a motion
to dismiss his complaint, it necessarily admitted the truth of his claims, including those
regarding ex parte communications among Board members. However, this Court has
explained that “admissions of this nature, made solely in connection with the motion to
dismiss, do not constitute admissions chargeable to the proponent of the motion for
purposes of the litigation as a whole.” Blake Indus., Inc. v. Gen. Agents Ins. Co. of Am.,
No. M1999-01891-COA-R3-CV, 2000 WL 1031054, at *3 (Tenn. Ct. App. July 27, 2000),
no appl. perm. appeal filed (citing Anthony v. Tidwell, 560 S.W.2d 908, 910 (Tenn. 1977)).
Wortman’s allegations of ex parte communications remain just that—unproven
allegations. There being no evidence in the record to substantiate Wortman’s allegations
of ex parte communications, we find this issue without merit.
We next address whether the Trial Court erred in declining to find that Wortman
was entitled to release upon completion of 30% of his sentence pursuant to an Alford plea
agreement Wortman entered into with the State. Wortman insists he entered into an Alford
plea agreement with the State whereby he was guaranteed release from incarceration upon
completion of 30% of his sentence.5 Indeed, in his brief, Wortman refers again and again
to “the Alford Plea.” Wortman asserts that the State has no right to break its contract with
him or disregard the sentencing orders of a “sister court.” However, there is at least one
major problem with Wortman’s argument—the record contains no such Alford plea
agreement. We have only Wortman’s word to go on that the State promised to release him
upon completion of 30% of his sentence. That will not suffice.
5
The Tennessee Supreme Court has described an Alford plea thusly:
Although uncommon, criminal defendants also may plead guilty while maintaining that
they did not commit the crime charged. Such pleas are often referred to as “Alford pleas”
based on the United States Supreme Court case, North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162 (1970). In Alford, our nation’s high court held that a defendant
who professed his innocence could nonetheless enter a constitutionally valid guilty plea
when the defendant “intelligently concludes that his interests require entry of a guilty plea.”
Id. at 37, 91 S.Ct. 160. Our Rules of Criminal Procedure refer to such pleas as “nolo
contendere” pleas. Tenn. R. Crim. P. 11(a)(2); see also State v. Crowe, 168 S.W.3d 731,
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The alleged “Alford Plea” Wortman references being of no avail, Wortman is left
with his “release eligibility date.” Wortman’s release eligibility date determined when he
became eligible for parole; it did not guarantee he would be released on parole on that
date.6 The Tennessee Court of Criminal Appeals has explained:
[A] sentence does not expire merely because the release eligibility date has
been reached. Davis [v. State], 313 S.W.3d [751] at 758 [Tenn. 2010]
(“[P]arole does not actually reduce the parolee’s sentence.”); Lawrence Allen
Hodge v. David Mills, Warden, No. W2004-01107-CCA-R3-HC, 2004 WL
2866970, at *1 (Tenn. Crim. App. Dec. 13, 2004) (“Parole does not cause the
sentence to expire or terminate, but is merely a conditional release from
confinement.”).
Roberts v. Minter, No. W2017-01944-CCA-R3-HC, 2018 WL 1603062, at *2 (Tenn. Crim.
App. Mar. 29, 2018), no appl. perm. appeal filed. “A prisoner has no absolute right to be
released on parole, even though he has a clean conduct record, and has served the minimum
term for his offense.” Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999)
(citing Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957)). A prisoner is not entitled
to immediate release upon reaching his or her minimum date for parole eligibility. See
Rice v. Lebo, No. W2019-01753-CCA-R3-HC, 2020 WL 1623744, at *2 (Tenn. Crim.
App. Apr. 2, 2020), R. 11 appl. perm. appeal denied July 23, 2020. Wortman’s argument
that he was guaranteed release on parole upon completing 30% of his sentence is
unsupported by the facts or the law.
We next address whether the Trial Court erred in declining to find that the Board
acted illegally, arbitrarily, or fraudulently. As relevant to this issue, Wortman argues first
that District Attorneys Davidson and Hagerman should not have testified at his parole
hearing and in fact were legally prohibited from doing so. Wortman points to Tenn. Code
Ann. § 8-7-103, which sets out the duties of district attorneys general. Tenn. Code Ann. §
8-7-103 provides:
Each district attorney general:
743 (Tenn. 2005)….
Frazier v. State, 495 S.W.3d 246, 250 n.1 (Tenn. 2016).
6
“The release eligibility date provided for in this section is the earliest date an inmate convicted of a
felony is eligible for parole. The date is conditioned on the inmate’s good behavior while in prison….”
Tenn. Code Ann. § 40-35-501(n) (2019).
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(1) Shall prosecute in the courts of the district all violations of the state
criminal statutes and perform all prosecutorial functions attendant thereto,
including prosecuting cases in a municipal court where the municipality
provides sufficient personnel to the district attorney general for that purpose;
(2) Shall prosecute in the federal court all criminal cases removed from a
state court in the district to any inferior court;
(3) May cooperate and assist, upon the request or direction of the attorney
general and reporter, in the bringing, prosecution, defense, preparation, and
trial of all cases in the circuit and chancery courts in which the attorney
general and reporter is required to appear for the protection of the state or the
public interest;
(4) Shall give an opinion, without charge, whenever called upon by any
county officer in the district, upon a question of criminal law relating to the
duties of the county officer’s office;
(5) Shall submit to the office of executive director for the district attorneys
general conference within ninety (90) days after the end of each fiscal year,
a written report specifying:
(A) Each source from which funds were received by the office of the district
attorney general during the fiscal year;
(B) The amount of funds received from each source; and
(C) The disposition of such funds;
(6) Shall have discretion in the performance of duties and responsibilities in
the allocation of resources available to such district attorney general, any
other law notwithstanding; and
(7) Shall have authority to delegate the foregoing duties and responsibilities
to an assistant district attorney general.
Tenn. Code Ann. § 8-7-103 (2016).
Wortman notes that testifying before parole hearings is not listed among the duties
of district attorneys general set out in the statute. Nevertheless, Tenn. Comp. R. & Regs.
1100-01-01-.07(1)(d) provides that district attorneys general may express their views as
part of parole proceedings:
(1) Before granting or denying parole, the Board may apply the following
factors to each eligible inmate to assist in determining whether such inmate
will live and remain at liberty without violating the law or the conditions of
his or her parole:
***
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(d) The views of the appropriate trial Judge and the District Attorney
General, who prosecuted the case;
Tenn. Comp. R. & Regs. 1100-01-01-.07(1)(d).
Wortman argues that, under the maxim “expressio unius est exclusio alterius,” or,
to express one thing implies the exclusion of the other, Tenn. Code Ann. § 8-7-103 forbids,
by its silence, district attorneys general from testifying at parole hearings. Wortman also
argues that Tenn. Comp. R. & Regs. 1100-01-01-.07(1)(d) must yield to Tenn. Code Ann.
§ 8-7-103. “When a regulation does not match a statute, the statute is controlling.” Ballard
v. Tenn. Dep’t of Health, No. M2019-01101-COA-R3-CV, 2020 WL 2299773, at *8 n.10
(Tenn. Ct. App. May 8, 2020), no appl. perm. appeal filed (citing Wright v. Tenn. Peace
Officer Standards and Training Comm’n, 277 S.W.3d 1, 15 (Tenn. Ct. App. 2008)).
However, we find no contradiction whatsoever between Tenn. Comp. R. & Regs.
1100-01-01-.07(1)(d) and Tenn. Code Ann. § 8-7-103. As this Court has explained: “The
maxim, ‘Expressio unius est exclusio alterius’ is not inflexible, and should be applied to
accomplish the legislative intention.” Pryor Oldsmobile/GMC Co., Inc. v. Tenn. Motor
Vehicle Com’n, 803 S.W.2d 227, 230 (Tenn. Ct. App. 1990) (citing Bd. of Pk. Com’rs. v.
City of Nashville, 134 Tenn. 612, 185 S.W. 694 (1916)). Wortman has failed to explain
how interpreting Tenn. Code Ann. § 8-7-103 to mean district attorneys general are barred
from testifying at parole hearings would accomplish the statute’s legislative intention,
when nothing else in the statute or in the broader statutory scheme lends itself to that
interpretation. On the contrary, Wortman’s interpretation is strained and unreasonable.
There was nothing improper or illegal about Davidson and Hagerman’s testimony at
Wortman’s parole hearing.
Continuing with this issue, Wortman argues that the Board failed to adequately
justify its decision in writing. Wortman asserts that the Board’s stated reasons for denying
him parole constituted mere “boilerplate.” The Board found, pursuant to Tenn. Code Ann.
§ 40-35-503(b)(1) and (b)(2), respectively, that there was a substantial risk Wortman would
not conform to the conditions of his release and that his release would depreciate the
seriousness of the crimes for which he was convicted. Tenn. Comp. R. & Regs. 1100-01-
01-.07(4) provides guidance:
(4) After applying the various factors for consideration to the individual
inmate, the Board shall deny the inmate’s release on parole if it determines
that:
(a) There is a substantial indication that the inmate will not conform to the
conditions of his or her parole; [or]
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(b) Release from custody at this time would depreciate the seriousness of the
crime of which the person stands convicted or promote disrespect for the law;
…
Tenn. Comp. R. & Regs. 1100-01-01-.07(4) (a) & (b).
In another case in which the adequacy of the Board’s reasoning was challenged,
Hopkins v. Tennessee Bd. of Paroles and Probation, this Court concluded:
Mr. Hopkins argues that the Board erred by failing to provide him with an
adequate statement of the evidence that the Board relied on in making its
decision. This argument fails, like the others, because the Board gave two
adequate, legally-supported justifications for denying Mr. Hopkins parole,
namely the severity of his offense and the risk of adverse effects on
institutional discipline. No more definite statement was required.
Hopkins v. Tenn. Bd. of Paroles and Prob., 60 S.W.3d 79, 83 (Tenn. Ct. App. 2001)
(emphasis added).
At his parole hearing, Wortman admitted guilt in the offenses to which he pled
guilty. Wortman, by his own admission, put poison into his wife’s toothpaste. This
toothpaste was also used by his daughter. Wortman then tried multiple times to hire a
hitman to have his wife killed. The severity of these offenses is evident. As in Hopkins,
no more definite statement was required.
With respect to the other basis for the Board’s decision, a substantial risk of
nonconformance with the conditions of release, Wortman states he is actually a low risk as
shown by his risk assessment score. However, while Wortman studiously avoids any
substantive discussion in his appellate briefs about the crimes for which he pled guilty, we
will not avoid the subject as it pertains directly to whether the Board had a sufficient
evidentiary basis for its decision. To reiterate, Wortman acknowledged at his parole
hearing that he tried to hire a hitman to kill his wife while he was incarcerated for trying to
hire a hitman to kill his wife. We can well see how this information could rationally lead
the Board to conclude that Wortman posed a substantial risk of nonconformance to
conditions of release were he to be released given how determined he was to kill his wife
including taking affirmative steps to do so even while incarcerated. In view of Wortman’s
own description of his brazen conduct, and all of the other evidence presented at the parole
hearing, the Board had a sufficient basis for its conclusion that there was a substantial risk
Wortman would not conform to conditions of release, notwithstanding his risk assessment
score. We find that the Board’s decision was based upon material evidence. We further
find that the Board did not act illegally, arbitrarily, or fraudulently in reaching its decision.
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The final issue we address is whether the Trial Court erred by declining to rule that
the Board improperly converted a determinate sentence into an indeterminate sentence.
However, while Wortman frames the matter this way, that is not what the Board did. The
Board simply denied Wortman parole; it did not modify his sentence in any way.
Wortman’s sentence remains thirty years, the same as before. The Tennessee Court of
Criminal Appeals has explained:
The mere fact that the Board of Paroles may grant or deny parole does not
convert a determinate sentence into an indeterminate sentence. Parole does
not cause the sentence to expire or terminate but is merely a conditional
release. See Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (1960). This
issue has no merit.
Baker v. State, 951 S.W.2d 1, 2 (Tenn. Crim. App. 1997); see also State v. Lacy, No.
W2019-00748-CCA-R3-CD, 2020 WL 1972610, at *2 (Tenn. Crim App. Apr. 24, 2020),
Rule 11 perm. app. denied Sept. 21, 2020 (favorably citing Baker for the proposition that
“the Board of Paroles’ ability to grant conditional release did not render the sentences
indeterminate….”). We affirm the judgment of the Trial Court in all respects.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Fred Auston Wortman, III, and his surety, if any.
__________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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