Joseph Brennan v. Board of Parole For The State of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 5, 2016 Session

JOSEPH BRENNAN, ET AL. v. BOARD OF PAROLE FOR THE STATE OF

TENNESSEE

Appeal by Permission from the Court of Appeals

Chancery Court for Davidson County

No. 131171II Carol L. McCoy, Chancellor

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No. M2014-01591-SC-R11-CV – Filed January 10, 2017

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The Tennessee Board of Parole denied parole to a prisoner who was serving a

twenty-year sentence for convictions of attempted rape of a child. The Board determined

that the prisoner’s release from custody would depreciate the seriousness of the crime for

which he was convicted or promote disrespect for the law. The prisoner filed a petition of

certiorari challenging the Board’s decision. The trial court affirmed the Board’s decision,

and the prisoner appealed. The Court of Appeals did not review the issues raised on

appeal. Instead, it calculated the date the prisoner should have been considered for parole

and concluded that the Board acted arbitrarily by conducting a parole hearing

prematurely. The Court of Appeals vacated and remanded with instructions for the Board

to give the prisoner an immediate parole hearing. We hold that the Court of Appeals had

no authority to calculate the date the prisoner could be considered for parole and did so

incorrectly. The Tennessee Department of Correction has the statutory authority to

determine the date a prisoner may be considered for parole by the Board. On review, we

affirm the trial court’s decision.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined. ROGER A. PAGE, J., not

participating.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Jennifer L. Brenner, Senior Counsel, for the appellant, Tennessee Board of

Parole.

J. Alex Little (on appeal) and Mark C. Scruggs (at trial), Nashville, Tennessee, for the

appellee, Joseph Brennan.

OPINION

I.

In January 2009, Joseph Brennan pleaded guilty to two counts of attempted rape of

a child.1 He was sentenced to serve ten years, consecutively, for each count of attempted

rape for an effective sentence of twenty years, with a release eligibility of thirty percent.

Mr. Brennan began serving his sentence on April 3, 2009.

On March 26, 2013, a Tennessee Board of Parole hearing officer conducted a

parole hearing for Mr. Brennan based on a release eligibility date—the date a prisoner is

eligible to be considered for parole—of June 14, 2013. The hearing officer received

written statements and testimony from Mr. Brennan, the victim, family members, friends,

and the victim’s psychologist. The hearing officer recommended that parole be denied.

The Board concurred, determining that ―[t]he 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,‖ and deferred the next parole hearing until 2018. Mr. Brennan,

unsuccessful in his appellate remedies before the Board, filed a petition of certiorari

based on Tennessee Code Annotated sections 27-9-101 and -102 in Davidson County

Chancery Court. Mr. Brennan asserted, among other things, that the Board’s decision was

illegal, contrary to established law, and arbitrary and capricious.

The trial court dismissed Mr. Brennan’s petition, finding that the Board’s decision

to deny parole due to the seriousness of the offense was not unfair, arbitrary, or

capricious. In its ruling, the trial court referenced the written statements and testimony

regarding Mr. Brennan’s work history, educational background, prison disciplinary

record, and completion of a sexual offender treatment program. The trial court considered

all issues raised by Mr. Brennan and concluded that it could not inquire into the intrinsic

correctness of the Board’s decision to deny parole. Mr. Brennan appealed.

The Court of Appeals did not consider the issues raised by Mr. Brennan. Instead,

the Court of Appeals determined Mr. Brennan’s release eligibility date was April 3, 2015,

which was six years from the date he began serving his sentence with no deduction for

sentence credits. The Court of Appeals reasoned that Mr. Brennan had served only

twenty percent of his sentence by the 2013 parole hearing, and the Board should have

waited to consider his suitability for parole until after he had served thirty percent of his

sentence. Based on its determination that Mr. Brennan’s hearing should have been in

April 2015, the Court of Appeals remanded the case to the trial court with instructions for

1

Mr. Brennan also pleaded guilty to two counts of incest and was sentenced to serve three years,

concurrently, for each count to be served concurrently with the attempted rape convictions. Mr. Brennan

has fully served the sentences for incest.

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the Board to conduct an immediate parole hearing for Mr. Brennan. Brennan v. Bd. of

Parole, No. M2014-01591-COA-R3-CV, 2015 WL 6326213, at *3–4 (Tenn. Ct. App.

Oct. 21, 2015).

We granted the Board’s application for permission to appeal.

II.

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,

304 S.W.2d 622, 623–24 (Tenn. 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 (1979) (―There is

no constitutional or inherent right of a convicted person to be conditionally released

before the expiration of a valid sentence.‖).

Neither party challenged the accuracy of the Tennessee Department of

Correction’s calculation of Mr. Brennan’s release eligibility date. The Court of Appeals

exceeded its authority by determining the date Mr. Brennan could be considered for

parole. 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)).

The Department of Correction is solely responsible for calculating a prisoner’s

release eligibility date. Tenn. Code Ann. § 40-35-501(a)(1), (r) (providing that,

―[n]otwithstanding any other law to the contrary, the [D]epartment is responsible for

calculating the sentence expiration date and the release eligibility date of any felony

offender sentenced to the [D]epartment and any felony offender sentenced to

confinement in a local jail or workhouse for one (1) or more years‖); id. § 40-28-129

(providing that the Department of Correction ―shall be responsible for calculating the

sentence expiration date and the earliest release date of any felony offender sentenced to

the [D]epartment of [C]orrection and any felony offender sentenced to confinement in a

county jail or workhouse for one (1) or more years‖); Shorts v. Bartholomew, 278 S.W.3d

268, 279 (Tenn. 2009) (holding that the Department of Correction calculates release

eligibility dates for Department of Correction prisoners, regardless of where the prisoners

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are confined); Stewart, 368 S.W.3d at 463 (holding that the Department of Correction has

sole authority to calculate an inmate’s release eligibility date).

The Court of Appeals exceeded its authority, and its calculation was flawed. In

determining when a prisoner is eligible for parole consideration, the Department of

Correction takes into account the prisoner’s behavior and his compliance with prison and

Department rules. A prisoner’s release eligibility date is conditioned on the prisoner’s

good behavior and service of a specific percentage of the sentence imposed less sentence

credits earned and retained by the prisoner. Tenn. Code Ann. § 40-35-501(b), (n). If there

is more than one conviction, the release eligibility date is calculated separately for each

conviction. Id. § 40-35-501(m). For consecutive sentences, the periods of eligibility for

release are calculated for each sentence and added together to determine the release

eligibility date. Id. The release eligibility date may be deferred to a later date, not to

exceed the length of the full sentence imposed. Id. § 40-35-501(n).

A prisoner may be awarded sentence reduction credits for good institutional

behavior or satisfactory performance in a program.2 Tenn. Code Ann.

§ 41-21-236(a)(2)(A); Tenn. Dep’t of Corr. Policy No. 505.01(VI)(K)(3)(a)–(b).

Sentence reduction credits are not earned or credited automatically but are awarded

monthly at the discretion of the prison warden based on criteria established by the

Department of Correction. Tenn. Code Ann. § 41-21-236(a)(3); Tenn. Dep’t of Corr.

Policy No. 505.01(VI)(K)(3)(e). A prisoner may lose sentence credits for certain

disciplinary offenses; the commission of certain major infractions; or the refusal to

participate in an assigned work, educational, or vocational training program. Tenn. Code

Ann. § 41-21-236(a)(4)–(6).

Because the calculations are based on several factors, including the accumulation

of good behavior and program credits, the release eligibility date is not a fixed date but

changes monthly based on sentence reduction credits earned and retained by the prisoner.

It is not a one-step calculation made by applying the prisoner’s release eligibility

percentage to the length of the sentence.

Based on the Department of Correction’s determination of Mr. Brennan’s release

eligibility date, the Board conducted Mr. Brennan’s parole hearing within a reasonable

time before his release eligibility date. See id. § 40-35-503(d)(1). The Board did not

2

Program credits may be awarded at the discretion of program supervisors based on the

following criteria: whether a prisoner arrives on time, is not late or absent without an official excuse, and

returns to work within a reasonable time after appointments; the prisoner applies himself to the work at

hand, remains at his program station, does not visit or allow himself to be distracted by others, and works

until quitting time; the prisoner accepts supervision well, listens to and carries out instructions, asks

questions if not sure of task requirements, and accepts orders without argument. Tenn. Dep’t of Corr.

Policy No. 505.01(VI)(K)(3)(e)(1)–(3).

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abuse its discretion or act arbitrarily or illegally by conducting a parole hearing in March

2013 and deferring the next parole hearing until 2018.3

In the interests of judicial economy, we now review the Board’s decision to

determine whether it acted illegally, fraudulently, or arbitrarily in denying parole to Mr.

Brennan. We do not reweigh the evidence or otherwise review the correctness of the

decision. Lane, 254 S.W.3d at 355 (citing Robinson, 65 S.W.3d at 635). The Board based

its denial of parole on Tennessee Code Annotated section 40-35-503(b)(2), which

provides for denial if the Board finds that ―release from custody at the time would

depreciate the seriousness of the crime of which the defendant stands convicted or

promote disrespect for the law.‖ See also Tenn. Bd. Parole R. 1100-01-01-.07(4). Courts

have repeatedly upheld Board decisions denying parole for this reason.4

3

Courts have held that a deferral of five years or more of a parole hearing is not arbitrary. See

Bibbs v. Tenn. Bd. of Parole, No. M2015-01755-COA-R3-CV, 2016 WL 1650302, at *5 (Tenn. Ct. App.

Apr. 22, 2016) (holding that a six-year deferral was not arbitrary); Tutton v. Tenn. Bd. of Prob. & Parole,

No. M2012-02513-COA-R3-CV, 2013 WL 6729811, at *3 (Tenn. Ct. App. Dec. 18, 2013) (holding that

the Board did not act arbitrarily or illegally in setting parole hearing six years from the last hearing);

Hendricks v. Tenn. Bd. of Prob. & Parole, No. M2010-01651-COA-R3-CV, 2011 WL 2135445, at *5

(Tenn. Ct. App. May 25, 2011) (holding that a six-year deferral was not arbitrary and was permissible

under Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d 429 (Tenn. Ct. App. 2003)); Turner v. Tenn. Bd. of

Prob. & Parole, No. M2009-01908-COA-R3-CV, 2010 WL 3928617, at *3 (Tenn. Ct. App. Oct. 6, 2010)

(holding that a six-year deferral was not arbitrary); Gordon v. Tenn. Bd. of Prob. & Parole, No.

M2006-01273-COA-R3-CV, 2007 WL 2200277, at *4 (Tenn. Ct. App. July 30, 2007) (holding that a

five-year deferral was not arbitrary); York v. Tenn. Bd. of Prob. & Parole, No.

M2005-01488-COA-R3-CV, 2007 WL 1541360, at *6 (Tenn. Ct. App. May 25, 2007) (affirming the trial

court’s finding that a six-year deferral based upon the seriousness of crimes was not arbitrary or

capricious); Berleue v. Tenn. Bd. of Prob. & Parole, No. M2005-00363-COA-R3-CV, 2006 WL

1540255, at *4 (Tenn. Ct. App. June 5, 2006) (holding that a five-year lapse between parole hearings was

not arbitrary).

4

Arnold, 956 S.W.2d at 482–83 (sexual offense); Bibbs, 2016 WL 1650302, at *3 (first degree

murder of an eleven-year-old girl); Witt v. Tenn. Bd. of Parole, No. M2013-02843-COA-R3-CV, 2014

WL 4536648, at *2 (Tenn. Ct. App. Sept. 12, 2014) (first degree murder); Pham v. Tenn. Bd. of Prob. &

Parole, No. M2013-00955-COA-R3-CV, 2014 WL 1512820, at *2 (Tenn. Ct. App. Apr. 15, 2014)

(attempted first degree murder); Massengale v. Tenn. Bd. of Prob. & Parole, No.

M2011-02249-COA-R3-CV, 2012 WL 3041298, at *2 (Tenn. Ct. App. July 25, 2012) (aggravated rape);

Richardson v. Tenn. Bd. of Prob. & Parole, No. M2008-02568-COA-R3-CV, 2009 WL 3046960, at *3

(Tenn. Ct. App. Sept. 23, 2009) (rape and armed robbery with a deadly weapon); McLemore v.

Traughber, No. M2007-00503-COA-R3-CV, 2007 WL 4207900, at *7 (Tenn. Ct. App. Nov. 28, 2007)

(rape, burglary, and crimes against nature); Williams v. Tenn. Bd. of Prob. & Parole, No.

M2006-02336-COA-R3-CV, 2007 WL 3132935, at *3 (Tenn. Ct. App. Oct. 26, 2007) (robbery by use of

a deadly weapon and murder during the perpetration of a robbery); Gordon, 2007 WL 2200277, at *2

(first degree murder); York, 2007 WL 1541360, at *2 (first degree murder); Berleue, 2006 WL 1540255,

at *3 (first degree murder); Meeks v. Traughber, No. M2003-02077-COA-R3-CV, 2005 WL 280746, at

*3 (Tenn. Ct. App. Feb. 4, 2005) (aggravated kidnapping, aggravated robbery, and extortion); Baldwin,

125 S.W.3d at 431 (first degree murder); Ali v. Tenn. Bd. of Prob. & Parole, No.

M2001-01194-COA-R3-CV, 2002 WL 83608, at *2 (Tenn. Ct. App. Jan. 22, 2002) (first degree burglary,

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Mr. Brennan argues that, although the offense of attempted rape of a child is a

parole-eligible offense, the Board denied parole solely because he committed a sexual

offense. Mr. Brennan submits that the Board failed to provide a detailed reason for its

decision and failed to consider the specific facts of the offense; Mr. Brennan’s good

institutional record; his completion of a sexual offender treatment program; his remorse

and apology to the victim; his personal circumstances; the support for parole from the

victim, family members, and friends; and his plans upon release.

Parole decisions are fact-intensive, and the record does not support Mr. Brennan’s

conclusory statement that he was denied parole based solely on the nature of his offense.

The Board’s hearing officer stated he had considered the various written and oral

statements submitted by Mr. Brennan and would provide the listed materials to the Board

for review. The hearing officer questioned Mr. Brennan regarding the offenses and the

efforts he had made while incarcerated to improve his educational, vocational, and

employment skills. Tenn. Code Ann. § 40-35-503(g). Mr. Brennan faults the Board for

not giving a detailed explanation for its decision; however, the Board gave an adequate,

legally-sufficient explanation for its decision and was not required to provide a more

detailed reason. Hopkins, 60 S.W.3d at 83; Boyd, 2001 WL 360702, at *2; Jordan, 1997

WL 13756, at *4. Mr. Brennan contends he has done well in prison; has the support of

the victim, family members, and friends; has undergone sexual offender treatment; and

has a plan for the future. These facts, while favorable to Mr. Brennan, do not entitle him

to parole. See Hamilton v. Tenn. Bd. of Prob. & Parole, No. M2016-00458-COA-R3-CV,

2016 WL 6581923, at *2 (Tenn. Ct. App. Nov. 4, 2016); Bibbs, 2016 WL 1650302, at *3;

Witt, 2014 WL 4536648, at *2; Hopkins, 60 S.W.3d at 83; Robinson, 13 S.W.3d at 364.

armed robbery, and aggravated rape); Harris v. Traughber, No. M2000-01146-COA-R3-CV, 2001 WL

788423, at *3 (Tenn. Ct. App. July 13, 2001) (sexual battery, aggravated sexual battery, and rape);

Hopkins, 60 S.W.3d at 83 (aggravated rape); Dyer v. Tenn. Bd. of Paroles, No.

M1999-00787-COA-R3-CV, 2001 WL 401596, at *2 (Tenn. Ct. App. Apr. 23, 2001) (first degree murder

and grand larceny); Boyd v. Tenn. Bd. of Paroles, No. M1998-00914-COA-R3-CV, 2001 WL 360702, at

*2 (Tenn. Ct. App. Apr. 12, 2001) (second degree murder); Sweatt v. Tenn. Bd. of Paroles, No.

M1999-02265-COA-R3-CV, 2000 WL 1514071, at *3–4 (Tenn. Ct. App. Oct. 12, 2000) (aggravated rape

of eleven-year-old child); Johnson v. Traughber, No. M1999-02472-COA-R3-CV, 2000 WL 1183083, at

*2 (Tenn. Ct. App. Aug. 22, 2000) (robbery); Robinson, 13 S.W.3d at 363 (armed robbery and aggravated

kidnapping); Miller v. Tenn. Bd. of Paroles, No. 01A01-9804-CH-00177, 1999 WL 159726, at *2 (Tenn.

Ct. App. Mar. 24, 1999) (rape, incest, and aggravated rape of his daughter, who was less than thirteen

years old at the time of the offenses); Tomlinson v. Traughber, No. 01-A-01-9703-CH00143, 1997 WL

330650, at *2 (Tenn. Ct. App. June 18, 1997) (aggravated rape, assault with attempt to murder, and

attempt to commit rape); Jordan v. Tenn. Bd. of Paroles, No. 01A-01-9607-CH-00347, 1997 WL 13756,

at *4 (Tenn. Ct. App. Jan. 16, 1997) (aggravated rape, armed robbery, and second degree murder); South

v. Tenn. Bd. of Paroles, 946 S.W.2d 310, 312 (Tenn. Ct. App. 1996) (aggravated sexual battery of his

three granddaughters, each under the age of thirteen); Mosley v. Tenn. Bd. of Paroles, No.

01A-01-9604-CH-00162, 1996 WL 631477, at *3 (Tenn. Ct. App. Nov. 1, 1996) (burglary and

aggravated robbery); Dalton v. Tenn. Bd. of Paroles, No. 01-A-01-9601-CH00029, 1996 WL 230209, at

*5 (Tenn. Ct. App. May 8, 1996) (aggravated rape and sexual battery of twelve-year-old stepdaughter and

violation of bond).

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The Board was required to consider a number of factors in making its decision.5

We have carefully reviewed the evidence presented to the Board, which shows that Mr.

Brennan has the support of the victim, his family, and friends; has behaved well as a

prisoner; regrets his wrongful actions; has apologized to the victim; and has plans for the

future that include employment, church attendance, and continued sexual offender

therapy. Mr. Brennan has served only a small portion of his twenty-year sentence for

sexually assaulting his ten-year-old sister over a period of a month and a half. After

considering these and other factors, the Board denied parole, as was its prerogative. It is

not our role to inquire into the intrinsic correctness of the Board’s decision.

There is no indication the Board acted illegally, fraudulently, or arbitrarily in

denying Mr. Brennan parole based on the seriousness of the offense. The evidence does

not support Mr. Brennan’s claim that the Board categorically denied parole without

considering the appropriate factors. Essentially, Mr. Brennan challenges the intrinsic

correctness of the Board’s decision, which is beyond the scope of appellate review.

Arnold, 956 S.W.2d at 480; Powell, 879 S.W.2d at 873. The Board appropriately

considered and followed the statutory mandate to deny parole based upon its finding that

release from custody would depreciate the seriousness of the crime for which Mr.

Brennan was convicted or would promote disrespect for the law.

III.

We affirm the Chancery Court’s decision upholding the Board’s denial of parole

and reverse the decision of the Court of Appeals. It appearing that Mr. Brennan is

indigent, costs of this appeal are taxed to the Tennessee Board of Parole.

SHARON G. LEE, JUSTICE

5

The Board may consider the following criteria to determine whether to grant or deny parole: the

nature of the crime and its severity; the prisoner’s previous criminal record; the prisoner’s institutional

record; the prisoner’s circumstances if returned to the community; any mitigating or aggravating

circumstances surrounding the offense; views of the community, victims of the crime or their family,

institutional staff, probation and parole officers, or other interested parties; the prisoner’s training,

including vocational and educational achievements; the prisoner’s employment history, his occupational

skills, and the stability of his past employment; and any other factors the Board deems relevant. Tenn. Bd.

Parole R. 1100-01-01-.07(1). In addition, the Board was required to consider whether there is a

substantial indication that he will not conform to the conditions of parole; whether early release from

custody would depreciate the seriousness of the crime, promote disrespect for the law, or have a

substantially adverse effect on institutional discipline; and whether continued treatment, medical care, or

training in the institution will substantially improve his ability to lead a law-abiding life when given

release status at a later time. Tenn. Code Ann. § 40-35-503(b); Tenn. Bd. Parole R. 1100-01-01-.07(4).

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