Robert C. Shrout v. Benita F. Murphy, Chairman, W. Va. Parole Board ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert C. Shrout,
Petitioner Below, Petitioner FILED
January 30, 2015
vs) No. 14-0491 (Kanawha County 14-P-207) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benita F. Murphy, Chairman of the West Virginia Parole Board,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Robert C. Shrout, appearing pro se, appeals the May 6, 2014, order of the Circuit
Court of Kanawha County that denied his petition for writ of mandamus seeking to compel
Respondent Benita F. Murphy, Chairman of the West Virginia Parole Board (“the Board”), to
provide him all documents regarding community and official sentiment about his possible release
on parole. Respondent Board, by counsel Stephen R. Connolly, filed a summary response.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner is serving a sentence of life in prison with the possibility of parole as a result of
his conviction for first degree murder. According to petitioner, the Board has denied him parole on
seventeen consecutive occasions.
In November of 2013, the Board denied petitioner parole because (1) the Board rated
community and official sentiment with regard to petitioner’s possible release on parole as
“extremely negative”; and (2) petitioner failed to complete “recommended programming.” In
response, petitioner asked the Board to provide him all documents the Board relied on in
determining community and official sentiment. On April 18, 2014, the board refused to give
petitioner the requested documents because such disclosure would invade the privacy of the
persons who commented and “would interfere with the sentiment process.”
On April 25, 2014, petitioner filed a petition for writ of mandamus in the Circuit Court of
Kanawha County that sought to compel the Board to provide him all documents he previously
requested. The circuit court denied the petition on May 6, 2014, finding that the board’s
regulations prohibited the disclosure of such documents. Those regulations include 92 W.Va.
C.S.R. § 1-10.1 that provides, in pertinent part, as follows:
1
Any inmate or interested party may make a request for records of the Parole Board
pertaining to consideration of an offender for release on parole; rescission or
revocation of parole or discharge of a parolee from supervision provided such
records are subject to disclosure under the West Virginia Freedom of Information
Act, W. Va. Code § 29B-1-1 et seq. Examples of documents not to be disclosed
include but are not limited to the following: official, judicial, or community
sentiment of any form.
(Emphasis added.)
Petitioner now appeals the circuit court’s May 6, 2014, order. We review the circuit court’s
denial of the petition for a writ of mandamus de novo. See Nobles v. Duncil, 202 W.Va. 523, 528,
505 S.E.2d 442, 447 (1998). This standard is applicable to cases where the circuit court’s decision
was based on the following analysis:
A writ of mandamus will not issue unless three elements coexist—(l) a clear legal
right in the petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of another
adequate remedy.
Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
On appeal, petitioner asserts that due process requires the Board to provide him the
documents it relied upon in gaging community and official sentiment. See Syl. Pt. 4, in part,
Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183 (1980) (holding that if no security concern exists to
prevent disclosure, inmate is entitled to access to information which will be used to determine
whether he is paroled). Petitioner contends that our holding in Tasker trumps the Board’s
regulations prohibiting disclosure. The board counters that its non-disclosure regulations are
justified by the public policy of providing victims, judges, prosecutors, police officers, and the
community in general some modicum of anonymity so that they will honestly inform the Board of
their feelings about an inmate’s possible parole.
With regard to petitioner’s reliance on Tasker, we note that, shortly after we decided
Tasker, we decided Stanley v. Dale, 171 W.Va. 192, 298 S.E.2d 225 (1982). In Stanley, we found
that the inmate in that case failed to carry his burden of showing that he was prejudiced by the
non-disclosure of documents regarding community and official sentiment because “[w]e cannot
say with any degree of certainty that the [Board] would have granted parole to the [inmate] in the
absence of their consideration of community sentiment.” Id., at 194-95, 298 S.E.2d at 227-28. In
the instant case, we similarly find that petitioner failed to carry his burden of showing that he was
prejudiced by the non-disclosure. While community and official sentiment were rated as
“extremely negative,” the Board also found that petitioner failed to complete “recommended
programming.” Given the need to ensure that petitioner is adequately rehabilitated before he is
released on parole, we find that petitioner’s failure to complete recommended classes, alone,
provided a sufficient basis from which the board could deny parole given the deferential standard
2
of review that applies to its decisions. See Syl. Pt. 3, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d
301 (1981) (citing Tasker, 165 W.Va. at 67, 267 S.E.2d at 190) (holding that Board’s decision to
deny parole is subject only to review for abuse of discretion).1 Because petitioner cannot show
that he was prejudiced by the non-disclosure of documents about community and official
sentiment, we conclude that petitioner had no clear legal right to those documents and, therefore,
the circuit court did not err in denying petitioner’s petition for writ of mandamus seeking to
compel their disclosure.
For the foregoing reasons, we affirm.2
Affirmed.
ISSUED: January 30, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry
1
In his correspondence with the Board, petitioner disputed whether he failed to complete
“recommended programming.” However, because petitioner does not dispute the Board’s finding
on appeal, we accept the correctness of the determination that he failed to complete recommended
classes.
2
We note that petitioner was denied parole again in November of 2014 and is scheduled
for another parole hearing in November of 2015.
3