Calvin Wilhite v. Tennessee Board of Parole

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 15, 2010

CALVIN WILHITE v. TENNESSEE BOARD OF PAROLE

Appeal from the Chancery Court for Davidson County

No. 09-586-IV Russell T. Perkins, Chancellor

No. M2010-00857-COA-R3-CV - Filed January 10, 2011

Appellant filed this petition for common law writ of certiorari when the Board of Probation

and Parole denied him parole. He contends the Board’s decision was illegal, arbitrary,

fraudulent, and in excess of its jurisdiction. The trial court dismissed the petition for writ of

certiorari. We affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT

and R ICHARD H. D INKINS, JJ., joined.

Calvin Wilhite, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

and Kellena Baker, Assistant Attorney General, for the appellee, Tennessee Board of

Probation & Parole.

OPINION

Calvin Wilhite (“Petitioner”) has been in state or federal custody for all but two years

since 1983. On October 3, 1983, Petitioner pled guilty to five counts of robbery with a deadly

weapon and two counts of robbery in Shelby County, Tennessee, and was sentenced to a total

effective sentence of twenty years. In April of 1988, he was granted parole on the robbery

charges and released on parole.

During the next several months, while on parole, Petitioner committed several

additional crimes. On October 25, 1989, a parole violation warrant was issued. Five months

later, on March 13, 1990, the parole violation warrant was served on Petitioner and he was

taken into custody. Two days later, on March 15, 1990, Petitioner waived his probable cause

hearing on the parole violation as indicated by Petitioner’s signature on a form entitled

“Explanation of Rights, Options, and Waivers at Parole Revocation Hearings.”

In the interim, Petitioner was charged with numerous criminal offenses in the state and

federal courts. He was convicted in federal court of one count of conspiracy to possess with

the intent to distribute cocaine and one count of possession with the intent to distribute for

which he was sentenced to 210 months in federal incarceration. On August 9, 1990,

Petitioner pled guilty to second degree murder in the Shelby County Criminal Court and was

sentenced to twenty years to be served concurrently with his federal sentence. All of these

offenses were committed while Petitioner was on parole in 1989.

On August 10, 1990, one day after pleading guilty in state court to second degree

murder, federal authorities took Petitioner into federal custody to serve his sentence

regarding the cocaine convictions.

Two weeks later, on August 27, 1990, Petitioner’s parole revocation hearing was to

be heard, however, the hearing was continued because he was no longer in state custody. A

second revocation hearing was scheduled for February 1991; however, it did not occur as

Petitioner remained in federal custody.

Petitioner remained in federal custody for fifteen years. While in federal custody,

Petitioner’s former counsel sent several letters to the Board and the Department of Correction

requesting that a parole revocation hearing be held. Specifically, he requested they conduct

a non-appearance parole revocation hearing. Each of these requests were denied.1

In the interim, in June of 1991, the Director of Paroles for Tennessee sent a letter to

the United States Penitentiary Record Office, requesting to be notified of Petitioner’s release

date from federal custody as there was an “outstanding” parole violation warrant on

Petitioner.2 Fourteen years later, on September 14, 2005, the Tennessee Department of

Probation and Parole placed a detainer on Petitioner with the federal authorities.

1

On February 23, 1996, while in federal custody, Petitioner filed a Motion to Amend Petition for

Habeas Corpus Post-Conviction Relief in the Shelby County criminal court alleging, inter alia, a

constitutionally deficient guilty plea was entered in August 1990 and that the State had breached its plea

agreement with him. The trial court dismissed the petition because it was filed outside the statute of

limitations, and the Court of Criminal Appeals affirmed the dismissal. See Wilhite v. State, No. 02C01-9605-

CR-00156, 1997 WL 472425 (Tenn. Crim. App. Aug. 20, 1997).

2

The warrant reference number was 14713, the same warrant that the record indicates was served

upon Petitioner and for which the parole revocation hearing was scheduled for August 27 of 1990.

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Petitioner was released from federal custody and returned to the custody of the State

of Tennessee on October 14, 2005. Six weeks later, on December 1, 2005, Petitioner’s

revocation hearing, which had been continued indefinitely from February 1991, was held.

Following the hearing, Petitioner was found to be in violation of parole for his 1983 robbery

conviction, his parole was revoked, and he was ordered to serve the balance of the twenty

year sentence. As for Petitioner’s 1990 conviction for second degree murder, which was

committed while on parole, the Board retroactively set July 6, 2005 as the effective date for

the commencement of that sentence.

On May 22, 2006, Petitioner filed a petition for writ of habeas corpus in the Circuit

Court for Hardeman County for relief from his twenty year sentence for robbery. See Wilhite

v. Turner, No. 06-02-0155, 2007 WL 1323380, at *1 (Tenn. Crim. App. May 3, 2007). The

trial court dismissed his petition and the Court of Criminal Appeals affirmed the trial court’s

dismissal of the petition for habeas relief. Id.

On October 21, 2008, the Petitioner appeared before the Board for a parole hearing

concerning his 1990 conviction for second degree murder. The Board declined to grant

Petitioner parole on the grounds that a release from custody would depreciate the seriousness

of the crime and that continued correctional treatment, medical care, or vocational training

would enhance the Petitioner’s capacity to lead a law-abiding life when released. Petitioner

filed a written request for appellate review, which was denied by the Board.

On March 27, 2009, Petitioner filed a petition for writ of certiorari with the Davidson

County Chancery Court. He asserted that the Board’s decision to deny parole on the murder

conviction was illegal, arbitrary, fraudulent, and in excess of its jurisdiction because that

sentence had expired. The trial court granted the petition, the certified parole record was filed

with the court, and the parties filed their respective briefs with the trial court. Pursuant to an

order entered on March 5, 2010, the trial court determined that the dispositive issue was

whether the second degree murder sentence had expired at the conclusion of his incarceration

for his federal sentence.3 The court then found that the sentence for the murder conviction

had not expired and cited to the statutes governing the parole revocation process. Based upon

that finding, the trial court concluded that the Board did not act illegally, arbitrarily,

fraudulently, or in excess of its jurisdiction, and dismissed the petition. This appeal followed.

3

Notably, in the case of Wilhite v. Turner, 2007 WL 1323380, the State took the position that the

second degree murder charge had expired and stated that Petitioner was only incarcerated for the robbery

charges. The State now takes the position that the murder charge has not expired.

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S TANDARD OF R EVIEW

Decisions regarding parole are vested exclusively in the Board of Probation and

Parole, Doyle v. Hampton, 340 S.W.2d 891, 891-92 (Tenn.1960), and whether such decisions

are lawful is subject to limited review under the common law writ of certiorari. Baldwin v.

Tennessee Board of Paroles, 125 S.W.3d 429, 433 (Tenn. Ct. App. 2003). It covers only an

inquiry into whether the Board has exceeded its jurisdiction or is acting illegally,

fraudulently, or arbitrarily, Yokley v. State, 632 S.W.2d 123 (Tenn. Ct. App. 1981).

Conclusory terms such as “arbitrary and capricious” will not entitle a petitioner to the writ.

Id. It is not the correctness of the decision that is subject to judicial review, but the manner

in which the decision is reached. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871,

873 (Tenn. Ct. App. 1994). If the agency or board has reached its decision in a constitutional

or lawful manner, then the decision would not be subject to judicial review. Id.

A NALYSIS

The chancery court correctly determined that the dispositive issue is whether the

sentence for second degree murder expired. Petitioner contends the sentence has expired

because it was to be served concurrently with his federal sentence, which he served to

completion. In support of this, Petitioner points to the decision of the Court of Criminal

Appeals in Wilhite v. Turner, 2007 WL 1323380. The State, however, contends that the

sentence for second degree murder has not expired. The State’s contention is based on

statutes and rules governing parole, which give the Board of Probation and Parole the

exclusive right to determine when the sentence for second degree murder would commence.

The case upon which Petitioner relies, Wilhite v. Turner, was a petition for a writ for

habeas corpus. Petitions for writ of habeas corpus present a very narrow ground for relief.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). They may only be used to challenge

judgments that are facially invalid either because the convicting court was without

jurisdiction or because the petitioner’s sentence has expired. Archer v. State, 851 S.W.2d

157, 164 (Tenn. 1993). The burden of establishing that the judgment is void or that the

sentence has expired is on the petitioner. See State v. Davenport, 980 S.W.2d 407, 409 (Tenn.

1998).

The Court of Criminal Appeals in Wilhite v. Turner held that the trial court properly

dismissed the petition for habeas relief because Petitioner was still required to serve his

sentence for the robbery charges. Although the court stated that the second degree murder

sentence had expired, the opinion reveals that the Court of Criminal Appeals did not consider

the fact that the parole statutes state that a prisoner who is convicted of a felony committed

while on parole shall serve the remainder of the sentence under which the prisoner was

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paroled as the board may determine before the prisoner commences serving the sentence

received for the felony committed while on parole. See Tenn. Code Ann. § 40-28-123(a).

Due to the narrow scope of review of a habeas petition and the fact that the mandatory

provision regarding sentencing for crimes committed on parole was not at issue in Wilhite

v. Turner, we find that Petitioner’s reliance on Wilhite v. Turner is misplaced.

T HE P AROLE R EVOCATION P ROCESS

The State contends that Petitioner’s second degree murder charge has not expired

because the Board has the sole discretion to set the sentence effective date of the second

degree murder charge pursuant to the parole statutes. Petitioner committed the felony of

second degree murder while he was on parole for the prior robbery charges. Tennessee Code

Annotated § 40-28-123(a) (emphasis added) states:

Any prisoner who is convicted in this state of a felony, committed while on

parole from a state prison, jail or workhouse, shall serve the remainder of the

sentence under which the prisoner was paroled, or part of that sentence, as the

board may determine before the prisoner commences serving the sentence

received for the felony committed while on parole. If any prisoner while on

parole from a state prison, jail or workhouse commits a crime under the laws

of another state government or country which, if committed within this state,

would be a felony, and is convicted of the crime, the director of probation and

parole shall arrange for the return of the prisoner through the terms of the

interstate compact. The board shall require that the prisoner serve the portion

remaining of the maximum term of sentence or part of that sentence as the

board may determine. The board, at its discretion, may recommend to the

commissioner of correction the removal of all or any part of the good and

honor time and incentive time accrued on the sentence under which the

prisoner was paroled.

Petitioner is correct in his assertion that the trial court sentenced him to twenty years

for the second degree murder charge to be served concurrently with the federal sentence,

however, pursuant to the above statute, he could not begin serving his sentence for the

murder charge until after his parole revocation for the first state offenses. The requirement

that a person serve the sentence for a felony incurred while on parole consecutive to the

sentence for the prior felony has been consistently recognized by our courts. See Hughes v.

Tenn. Dept. of Corrections, No. M2001-000, 2002 WL 2008706 , at *4 (Tenn. Ct. App. Sept.

3, 2002) (citing Henderson v. State, 419 S.W.2d 176, 177-178; Taylor v. Morgan, 909

S.W.2d 17, 20 (Tenn. Crim. App.1995); State v. Buchanan, No. M1999-00980-CCA-R3-CD,

2000 WL 226409, at *11-12 (Tenn. Crim. App. Feb. 29, 2000); Bergdoff v. State, No.

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01C01-9508-CC-00279, 1996 WL 571766, at *11 (Tenn. Crim. App. Oct. 8, 1996); State v.

Sharpe, No. 01C01-9301-CR-00031, 1993 WL 503710, at *10 (Tenn. Crim. App. Dec. 9,

1993); McDaniel v. State, No. 03-C-01-9202-CR-00048, 1992 Tenn. Crim. App. LEXIS 866,

at *5 (Tenn. Crim. App. Nov. 13, 1992); State v. Brown, No. 86-203-III, 1987 WL 10699,

at *1-*2 (Tenn. Crim. App. May 12, 1987); El-Amin v. Campbell, 973 S.W.2d 222, 223

(Tenn. Ct. App.1998)). Thus, while the criminal court had the authority to set Petitioner’s

sentence to run concurrently with the federal sentence, the criminal court did not have the

authority to order that the murder charge run prior to Petitioner serving the sentence for

robbery. As the cases above indicate, the authority and discretion to make this decision lies

solely with the Board.

In determining the date on which Petitioner would begin to serve his new sentence,

the Board must follow a procedure set forth by statute. Under Tenn. Code Ann. § 40-28-

118(c), the Board must determine whether the Petitioner violated the terms of his parole and

the appropriate action to be taken if such a violation occurred. This process is initiated by the

issuance of a parole warrant and this warrant is executed when the Petitioner is taken into

custody on this warrant. Tenn. Code Ann. § 40-28-120; Cotten v. Tenn. Bd. of Paroles, No.

M2001-00875-COA-R3-CV, 2002 WL 1484446, at *3 (July 12, 2002). After execution of

the parole warrant, a preliminary hearing is held to determine if there is probable cause that

the parolee committed a parole violation. Tenn. Code Ann. § 40-28-121(c). A parolee may

waive the probable cause hearing. Id. After the probable cause hearing, a second final

hearing must be held to determine if a revocation of parole should occur. Tenn. Code Ann.

§ 40-28-122(b). The second hearing must occur “within a reasonable time.” Tenn. Code Ann.

§ 40-28-122(d)(1); Cotten, 2002 WL 1484446, at *3. Under both Tenn. Code Ann. § 40-28-

123(a) and Tenn. R. Crim. P. 32(c)(3), the sentence for a felony committed while on parole

is to be served consecutively to the previous felony sentence for which parole was revoked.

The parole violation warrant, which was issued on October 25, 1989, was served upon

Petitioner on March 13, 1990, at which time he was taken into state custody. Petitioner

waived the probable cause hearing – the first of the two stages of hearings – and his parole

revocation hearing was scheduled for August 27, 1990. The scheduled parole revocation

hearing, however, was not held on August 27 because Petitioner was taken into federal

custody before it occurred and it was continued indefinitely while Petitioner remained in

federal custody. Following Petitioner’s return to state custody in October 2005, the final

revocation hearing was held on December 1, 2005.4 Following the hearing, the Board

4

We note that the trial court relied upon Cotten v. Tenn. Bd. of Paroles, 2002 WL 1484446, to

conclude that the final revocation hearing was held within a reasonable time. The trial court’s holding was

based on an erroneous finding of fact that the warrant was not executed until Petitioner returned to state

(continued...)

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revoked Petitioner’s parole for the robbery charges and ordered him to serve the remainder

of his sentence for the robbery charges. As it is also authorized to do, the Board set July 6,

2005, as the effective date for the commencement of Petitioner’s sentence for second degree

murder. See Hughes, 2002 WL 2008706, at *4 (wherein this court found that the Board may

set the effective (commencement) date of the sentence for a subsequent felony prior to the

date of completion of the original sentence that was reinstated).

Based upon our review of the record, the applicable statutes, and the very deferential

standard of review, we find Petitioner was required by law to serve his sentence for second

degree murder consecutive to his sentence for his previous felony charges because the

felonious offense was committed while Petitioner was on parole. See Hughes, 2002 WL

2008706 , at *4 (citing Henderson, 419 S.W.2d at 177-178; Taylor, 909 S.W.2d at 20) (other

citations omitted). Petitioner began serving the twenty year sentence for murder on July 6,

2005; therefore, the sentence for second degree murder had not expired at the time of the

2010 parole revocation hearing. Accordingly, we find the Board was not acting in excess of

its jurisdiction nor was it acting illegally, fraudulently, or arbitrarily when it denied Petitioner

parole on the second degree murder charge.

I N C ONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of

appeal assessed against the appellant, Calvin Wilhite.

______________________________

FRANK G. CLEMENT, JR., JUDGE

4

(...continued)

custody in 2005. The parole violation warrant was served on Petitioner in March 1990 and Petitioner was

taken into state custody at that time, a fact that is supported by Petitioner’s waiver of the initial probable

cause hearing in August 1990, which distinguishes this case from Cotten. Nevertheless, Petitioner did not

challenge the revocation of his parole in the trial court; therefore, it is not an issue in this appeal.

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