Barton v. S.C. Dep't of Prob. Parole

Decision Date03 July 2013
Docket NumberNo. 27281.,27281.
CourtSouth Carolina Supreme Court
PartiesThalma BARTON, Appellant, v. SOUTH CAROLINA DEPARTMENT OF PROBATION PAROLE AND PARDON SERVICES, Respondent. Appellate Case No. 2012–213234.

404 S.C. 395
745 S.E.2d 110

Thalma BARTON, Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF PROBATION PAROLE AND PARDON SERVICES, Respondent.

Appellate Case No. 2012–213234.

No. 27281.

Supreme Court of South Carolina.

Heard May 1, 2013.
Decided July 3, 2013.


[745 S.E.2d 112]


Travis Dayhuff and Gary Lee Capps, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Appellant.

Matthew C. Buchanan, of Columbia, for Respondent.


Chief Justice TOAL.

[404 S.C. 398]Thalma Barton (Appellant) challenges the Administrative Law Court's (ALC) order affirming the South Carolina Department of Probation, Parole, and Pardon Services' (DPPPS) decision denying her parole. We reverse.

FACTUAL/PROCEDURAL HISTORY

On May 10, 1982, the Abbeville County Grand Jury indicted Appellant for murder.1 Appellant pled guilty on May 11, 1982. [404 S.C. 399]The circuit court sentenced Appellant to life imprisonment. At the time of Appellant's conviction, South Carolina law provided that an individual serving a life sentence for murder would become eligible for parole following completion of twenty years of her sentence. Appellant initially appeared before the Board of Probation, Parole, and Pardon Services (the Parole Board) on July 6, 1997, after completing twenty years of her sentence through the award of good time credits. The Parole Board denied Appellant parole following that hearing, and on twelve subsequent occasions. Appellant's most recent appearance, on January 18, 2012, is at issue here.

The Parole Board is comprised of seven members.2 Six of those seven members participated in Appellant's hearing. Four members voted in favor of granting Appellant parole, while two members voted against granting parole. According to section 24–21–645 of the South Carolina Code, the Parole Board may issue an order authorizing parole signed either by a majority of its members or by all three members meeting as a parole panel; however, at least two-thirds of the members of the Parole Board must authorize and sign orders approving parole for persons convicted of a violent crime as defined in section 16–1–60 of the South Carolina Code. S.C.Code Ann. § 24–21–645(A) (Supp.2012). Prior to 1987, section 24–21–645 provided that the Parole Board may authorize parole when authorized by a majority of its members. See id. § 24–21–645 (Supp.1984) (emphasis added).

Although two-thirds of the members of the Parole Board participating in Appellant's hearing voted in favor of parole, the Parole Board ultimately denied parole. As explained in detail, infra, the Parole Board interprets section 24–21–645 to require an inmate receive a two-thirds majority vote of the Parole Board's seven members, thus meaning Appellant needed five votes, rather than four, to receive parole. In denying Appellant's parole, the Parole Board cited the nature, seriousness, and indication of violence of her offense.

[745 S.E.2d 113]

[404 S.C. 400]Appellant filed a notice of appeal with the ALC, claiming that the Parole Board erred by applying the current version of section 24–21–645 instead of the version of that statute in effect at the time Appellant committed her crime. Appellant argued that the version of section 24–21–645 in effect at the time of her conviction required only a majority of the Parole Board vote in favor of parole, and that application of the current version of section 24–21–645, and its two-thirds requirement, constituted an ex post facto violation. In the alternative, Appellant also asserted that she should receive parole under the current version of section 24–21–645. According to Appellant, the six members of the Parole Board who participated in her hearing represented a quorum, and she received two-thirds of that quorum, satisfying the statutory conditions for parole.

The ALC rejected Appellant's claims, holding that retroactive application of section 24–21–645's two-thirds requirement did not constitute an ex post facto violation, and that the General Assembly intended the term “members of the board” to indicate members of the full Parole Board, and not members of the Parole Board attending or voting at a parole hearing. Appellant appealed the ALC's order to the court of appeals, and this Court certified the case for review pursuant to Rule 204(b), SCACR.

ISSUES

I. Whether the ALC erred in failing to find the Parole Board's retroactive application of section 24–21–645 of the South Carolina Code constituted an ex post facto violation.

II. Whether the ALC erred in failing to reject the Parole Board's interpretation of the two-thirds majority requirement of section 24–21–645 of the South Carolina Code.

STANDARD OF REVIEW

In an appeal from an ALC decision, the Administrative Procedures Act (APA) provides the appropriate standard of review. S.C.Code Ann. § 1–23–610(B) (Supp.2012).

[404 S.C. 401]This Court will only reverse the decision of an ALC if that decision is:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) (a) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.

Id. “The [C]ourt may not substitute its judgment for the judgment of the [ALC] as to the weight of the evidence on questions of fact.” Id. (alterations added). In determining whether the ALC's decision was supported by substantial evidence, this Court need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the ALC reached. Hill v. S.C. Dep't of Health and Envtl. Control, 389 S.C. 1, 9–10, 698 S.E.2d 612, 617 (2010).


LAW/ANALYSIS
1. Applicable Law

Section 24–21–645 of the South Carolina Code provides in pertinent part:

(A) The board may issue an order authorizing the parole which must be signed either by a majority of its members or by all three members meeting as a parole panel on the case ninety days prior to the effective date of the parole; however, at least two-thirds of the members of the board must authorize and sign orders authorizing parole for persons convicted of a violent crime as defined in Section 16–1–60. A provisional parole order shall include the terms and conditions, if any, to be met by the prisoner during the provisional period and terms and conditions, if any, to be met upon parole.

S.C.Code Ann. § 24–21–645 (Supp.2012) (emphasis added).3 However, prior to

[745 S.E.2d 114]

section 24–21–645's amendment as part of [404 S.C. 402]Act No. 462, the Omnibus Criminal Justice Improvement Act of 1986, the statute did not contain the two-thirds provision emphasized above, and provided:


The Board may issue an order authorizing the parole which shall be signed either by a majority of its members or by all three members meeting as a parole panel on the case, ninety days prior to the effective date of the parole.
Id. § 24–21–645 (Supp.1984).

The gravamen of Appellant's complaint is that the pre-amendment version of section 24–21–645 should apply to her case because she committed her crime prior to the amendment.[404 S.C. 403]Alternatively, Appellant asserts that she should have been granted parole even under the amended statute, as both the Parole Board and the ALC interpreted that statute erroneously.

2. Ex Post Facto Violation

Appellant argues that the Parole Board's retroactive application of section 24–21–645 constitutes an ex post facto violation, and that the ALC performed a flawed ex post facto analysis. We agree.

The United States and South Carolina Constitutions specifically prohibit the passage of ex post facto laws. U.S. Const. art. I, §§ 9, 10; S.C. Const. art. 1, § 4. A measure is an ex post facto law when it retroactively alters the definition of a crime or increases the punishment for a crime. Jernigan v. State, 340 S.C. 256, 261, 531 S.E.2d 507, 509 (2000). The relevant inquiry regarding an increase in punishment is whether a legislative amendment “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)). If the amendment produces only a “speculative and attenuated possibility” of increasing an inmate's punishment, then there is no ex post facto violation. Id. Furthermore, a change in law that merely affects a mode of procedure, but does not alter substantial personal rights is not ex post facto. State v. Huiett, 302 S.C. 169, 172, 394 S.E.2d 486, 487 (1990) (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). A court should look to the effect of the statute on the “quantum of punishment” to determine whether an amendment offends the ex post facto prohibition. Id.

[745 S.E.2d 115]

The ALC rejected Appellant's claim as speculative, and characterized the two-thirds rule change as “purely procedural,” based primarily on a line of cases previously analyzed, or decided, by this Court: Morales, supra, Roller v. Gunn, 107 F.3d 227 (4th Cir.1997), and Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000).

[404 S.C. 404]In Morales, the United States Supreme Court analyzed the California State Legislature's amendment of a parole statute. A jury convicted Morales of first degree murder in 1971. 514 U.S. at 502, 115 S.Ct. 1597. While serving his sentence, Morales met and later married Lois Washabaugh. Id. In April 1980, the state released Morales to a Los Angeles halfway house. Id. Shortly thereafter, in July 1980, police recovered a human hand on a Los Angeles freeway, and fingerprint identification matched the hand to Washabaugh. Id. Police never located Washabaugh's body, but discovered her car, purse, and credit cards in Morales's possession. Id. Morales pleaded nolo contendere to second degree murder, and received a sentence of fifteen years'...

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