Miller v. Board of Paroles ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 24, 1999
JAMES R. MILLER, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9804-CH-00177
VS. )
) Davidson Chancery
) No. 97-3423-III
TENNESSEE BOARD OF PAROLES, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
JAMES R. MILLER, #135058
South Central Correctional Facility
P. O. Box 279
Clifton, Tennessee 38425-0279
Pro Se/Petitioner/Appellant
JOHN KNOX WALKUP
Attorney General & Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
MEMORANDUM OPINION1
An inmate in the custody of the Department of Correction filed a petition
for writ of certiorari, claiming that the Board of Paroles acted unconstitutionally in
refusing to parole him. The chancery court dismissed the petition. We affirm the
chancery court.
I.
On May 11, 1990, James R. Miller pled guilty to charges of rape, incest
and aggravated rape, and was sentenced to eighteen years imprisonment. The victim
was his daughter, who was less than thirteen years of age at the time. Mr. Miller first
became eligible for parole consideration in 1993. The Parole Board declined to parole
him because of the seriousness of his offenses and the need to complete a sex
offender treatment program. After the next parole hearing in 1995, he was again
denied parole. The Board cited as their reasons the seriousness of the offense and
negative disciplinary reports. On March 12, 1997, Mr. Miller came up for a hearing
again, and the Board again voted to deny parole because of the seriousness of his
offenses.
On October 15, 1997, Mr. Miller filed a petition for writ of certiorari to
review the action of the Parole Board. The Parole Board moved to dismiss the
petition on the ground that it failed to state a claim upon which relief could be granted.
The trial court dismissed the petition on March 2, 1998. This appeal followed.
1
Rule 10(b) of the Rules of the Court of Appeals reads as follows:
The Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by memorandum opinion when
a form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cided by
memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be
published, and s hall not be cited or relied on for any reason in a subsequent unrelated
case.
-2-
II.
A petition for writ of certiorari must be filed within sixty days of the entry
of the order or judgment appealed from. Tenn. Code Ann. §27-9-102. Failure to file
a petition within the sixty day time limit results in the trial court losing jurisdiction of the
case. Fairhaven v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn.
App. 1976). Since over seven months elapsed between the decision of the Parole
Board and the filing of Mr. Miller’s petition, it appears that the petition should have
been dismissed for lack of jurisdiction. We note however, that even if Mr. Miller’s
petition had been timely filed, the court would still have been compelled to find it to
have no merit.
Large portions of both Mr. Miller’s petition for writ of certiorari and his
brief on appeal are devoted to challenges to his conviction. Mr. Miller claims that the
indictment was faulty, and that he pled guilty on the advice of a court-appointed
attorney who assured him that if he did so he would be home in five months. Of
course the Board of Paroles had no part in Mr. Miller’s conviction and sentencing, and
neither the chancery court nor this court has any jurisdiction over those matters.
The remainder of Mr. Miller’s argument is that the Board acted
unconstitutionally or illegally by basing its decision on the seriousness of his offense.
The courts of this state have had several opportunities to examine the question of
whether seriousness of offense is a constitutionally valid basis for denial of parole,
and have determined that it is. South v. Board of Paroles, 946 S.W.2d 310, 312
(Tenn. App. 1996); Arnold v. Board of Paroles, 956 S.W.2d 478, 482 (Tenn. 1997).
We note that the legislature has authorized the Board of Paroles to deny
parole if release would depreciate the seriousness of the offense, Tenn. Code Ann.
§ 4-35-503(b)(2). Rule No. 1100-1-1-.06(3)(b) of the Board of Paroles follows the
-3-
legislative directive. Certainly, it would depreciate the seriousness of Mr. Miller’s
conduct if he were not severely punished for it. We thus find that the Board’s actions
cannot be considered unconstitutional or illegal.
III.
The order of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
-4-