Qui Pham v. Tennessee Board of Probation and Parole

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 09, 2013

QUI PHAM v. TENNESSEE BOARD OF PROBATION AND PAROLE,

ET AL.

Appeal from the Chancery Court for Davidson County

No. 121138III Ellen Hobbs Lyle, Chancellor

No. M2013-00955-COA-R3-CV - Filed April 15, 2014

Inmate filed petition for writ of certiorari seeking review of decisions of the Board of Parole

denying him parole and setting a two year period for his next consideration. Trial court

dismissed petition; finding no error, we affirm the decision.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,

M. S., P. J., and F RANK G. C LEMENT, J., joined.

Qui Pham, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill Young, Solicitor General; and

Jennifer L. Brenner, Senior Counsel; Nashville, Tennessee, for the appellee, Tennessee

Board of Probation and Parole, and Ronnie Cole, Board Member.

MEMORANDUM OPINION 1

Petitioner, Qui Pham, an inmate of the Tennessee Department of Corrections, filed

a petition for writ of certiorari on August 3, 2012, seeking review of the decisions of the

Board of Probations and Parole to deny him parole and to defer further consideration for

parole for a period of two years. The writ issued, and the administrative record was filed

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Tenn. R. Ct. App. 10 states:

This 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 formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

with the court on November 28, 2012. The parties having duly filed briefs, on April 1, 2013,

the court entered a memorandum and order dismissing the petition. Mr. Pham appeals,

contending that the Board exceeded its jurisdiction and acted arbitrarily when it deferred his

next consideration for parole for two years and that the Board erred in denying him parole.

Mr. Pham argues that Tenn. Code Ann. § 40-28-104(a)(3) and (11)2 require the Board

to review parole decisions annually. Those statutes, however, do not apply to the

consideration for parole; rather, they address the powers and duties of the Board and require

an annual review and reevaluation of guidelines for granting and denying parole and long

range plans and objectives. There is no statute or regulation mandating a particular period

of time between reviews of parole applications; the seminal case discussing the issue of the

reasonableness of the time period between the denial of parole and a prisoner’s eligibility for

reconsideration is Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d 429 (Tenn. Ct. App. 2003).

In Baldwin, we held that a deferral of twenty years before reconsideration “constitutes an

arbitrary withdrawal of the power to parole from future Board members, and . . . would

undermine the very provisions of the parole statutes that empower the Board to grant parole.”

Id. at 434. Without specifying a particular number of years between hearings, we held that

the Board should schedule such hearings in such a way as would give it the opportunity “to

re-evaluate its own decisions.” Id. The decision to reevaluate Mr. Pham’s eligibility for

parole in two years did not violate the law and was not arbitrary.

Mr. Pham also contends that the Board erred to the extent it denied him parole due to

the seriousness of the offense because the seriousness of the offense “was taken into

consideration during the actual criminal prosecution proceedings.” As noted in Robinson v.

Traughber, however, “seriousness of offense is a valid ground for denying parole in

Tennessee.” Robinson v. Traughber, 13 S.W.3d 361, 363 (Tenn. Ct. App. 1999) (citing

Arnold v. Bd. of Paroles, 956 S.W.2d 478 (Tenn.1997)). The fact that Mr. Pham’s original

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Tenn. Code Ann. § 40-28-104 (a)(3) & (11) state:

(a) The board is hereby vested and charged with those powers and duties necessary and

proper to enable it to fully and effectively carry out this chapter, including, but not limited

to:

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(3) The authority to develop and implement guidelines for granting or denying parole, which

guidelines shall be reviewed and reevaluated by the board at least annually and copies of the

guidelines shall be provided to the governor, the commissioner of correction and the

appropriate standing committees of the general assembly;

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(11) The duty to adopt written long-range goals and objectives. The goals and objectives

shall be reaffirmed or changed, as appropriate, by the board at least once each year;

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sentence was based on the crimes he committed has no bearing on his eligibility for parole,

which is a wholly separate procedure from prosecution for the offense. When the Board

considers appropriate and valid factors in determining whether an inmate is eligible for

parole the Board does not, as Mr. Pham argues, “subject him to the initial criminal process

all over again.”

Lastly, Mr. Pham contends that Board member Cole “allowed his personal

feelings/influence and thought [to] come into play at different stages of the hearing.” Mr.

Pham specifically cites a comment made by Mr. Cole that he “ha[s] an issue with people who

take automatic weapons and fire at our law enforcement personnel” and a comment made in

response to one made by Mr. Pham’s wife. Considering the comments in the context of the

hearing, we do not agree that either was in any way improper or prejudicial.

Mr. Pham was sentenced to seven 15-year sentences for attempted first degree murder,

arising out of a high speed chase and shoot out with police. Mr. Cole’s quoted comment,

taken in context, reflected that this was a serious offense and was the basis of Mr. Cole’s

decision to deny parole; as held earlier, seriousness of the offense is not an inappropriate

consideration for denying parole in Tennessee. Robinson, 13 S.W.3d at 363.

Mr. Cole’s other statement cited by Mr. Pham was in response to Ms. Pham’s

presentation wherein she stated: “You guys [the Board] sit here, and you let lessers go. You

let murderers go. You let rapists go during the sentence that he’s doing at five years.” Mr.

Cole responded:

Thank you. Ma’am. Just a comment - - an observation, and then I’m going to

move on past this. A comment she made about us releasing other inmates. We

do, in fact - - when you serve on a parole board, you have to believe in the

concept of parole. If not, people such as myself would never serve on these.

We have to believe that there is a point in time for . . . rehabilitation . . . and

then these people need to move out and move forward to give them the

opportunity.

We find no impropriety in Mr. Cole’s response.

For the foregoing reasons, the judgment dismissing the petition for certiorari review

is AFFIRMED.

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RICHARD H. DINKINS, JUDGE

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