Burton v. S.C. Dep't of Prob., Appellate Case No. 2016-002131

• Decision Date: 05 July 2018
• Docket Number: Unpublished Opinion No. 2018-UP-304,Appellate Case No. 2016-002131
• Parties: Johnny Burton, Respondent, v. South Carolina Department of Probation, Parole and Pardon Services, Appellant.
• Court: Court of Appeals of South Carolina

Johnny Burton, Respondent,
v.
South Carolina Department of Probation, Parole and Pardon Services, Appellant.

Appellate Case No. 2016-002131
Unpublished Opinion No. 2018-UP-304

STATE OF SOUTH CAROLINA In The Court of Appeals

Submitted June 1, 2018
July 5, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From The Administrative Law Court
John D. McLeod, Administrative Law Judge

REVERSED

Tommy Evans, Jr., of the South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Appellant.

Johnny Burton, pro se.

PER CURIAM: The South Carolina Department of Probation, Parole and Pardon Services (the Department) appeals an Administrative Law Court (ALC) order reversing and remanding the parole board's (the Board's) denial of inmate Johnny Burton's parole. On appeal, the Department argues the ALC erred by finding it

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denied Burton due process by failing to inform him that it would perform a COMPAS¹ assessment prior to his parole hearing. We reverse.²

Section 24-21-10(F)(1) requires the Board to use a risk assessment tool when deciding whether to grant or deny parole. The risk assessment is a separate requirement that the Board must consider along with "the written, specific criteria" for granting parole referenced in section 24-21-640 of the South Carolina Code (Supp. 2017). See § 24-21-640 ("The [B]oard must establish written, specific criteria for the granting of parole and provisional parole. This criteria must reflect all of the aspects of this section and include a review of a prisoner's disciplinary and other records."). Although section 24-21-640 requires that the criteria for the granting of parole "must be made available to all prisoners at the time of their incarceration," section 24-21-10(F)(1) does not contain such a requirement. We find that if the legislature had intended to require the Department to provide an inmate with prior notice of the Board's use of a risk assessment tool, it would have included a notice requirement in section 24-21-10(F)(1). See Savannah Riverkeeper v. S.C. Dep't of Health & Envtl. Control, 400 S.C. 196, 201, 733 S.E.2d 903, 905 (2012) (providing that the primary rule of statutory construction is to ascertain and effectuate the intent of the legislature). Because the Department is not required to provide inmates with notice of the Board's use of a risk assessment tool and because the...