Cotten v. Bd. of Paroles

• Court: Tennessee Court of Appeals
• Decision Date: 12 July 2002
• Docket Number: M2001-00875-COA-R3-CV
• Citation: Cotten v. Bd. of Paroles (Tenn. App. 2002)
• Parties: RICKEY STEPHAN COTTEN v. TENNESSEE BOARD OF PAROLESIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs

RICKEY STEPHAN COTTEN v TENNESSEE BOARD OF PAROLES

No. M2001-00875-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs March 13, 2001

Filed July 12, 2002

Appeal from the Circuit Court for Davidson County No. 01C-680 Walter C. Kurtz, Judge

Petitioner was arrested in Florida for grand theft auto while on parole under a sentence in Tennessee. After beginning his sentence on the Florida conviction in a Florida prison, the Petitioner filed a "request for leave to waive revocation hearing, admission to violation of parole and request to have parole hearing in absentia and affidavit" with the Board of Paroles of Tennessee. The Board did not respond, so Petitioner filed a writ of mandamus with the Circuit Court for Davidson County to compel the Board to render a decision regarding his parole revocation. The trial court denied the writ and dismissed the petition because mandamus was not the appropriate remedy and the Petitioner was not in custody of the State of Tennessee for the purposes of parole revocation. We agree and affirm the decision of the trial court.

Rickey S. Cotten, Lowell, Florida, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Quisha A. Light, Assistant Attorney General, for the appellee, Tennessee Board of Probation and Paroles.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and WILLIAM C. KOCH, JR., J., joined.

OPINION

This appeal arose after the Circuit Court for Davidson County dismissed a petition filed by Rickey S. Cotten for issuance of a writ of mandamus against the Tennessee Board of Paroles ("Board"). The petition requested that the court order the Board to grant Mr. Cotten's demand for waiver of a parole violation hearing, and that the Board sentence him in absentia for a pending parole violation. The trial court dismissed the petition sua sponte, because a writ of mandamus was not the appropriate remedy when the Board did not have custody of Mr. Cotten and, therefore, was under no duty to provide him with a parole revocation hearing.

I. Facts

Mr. Cotten is an inmate currently in the custody of the Florida Department of Correction. In 1987, Mr. Cotten was found guilty and sentenced on burglary charges in both Davidson and Sumner County, Tennessee, receiving a sentence in excess of 23 years. He was released on parole by the State of Tennessee in October of 1997, remaining under the supervision of the Northeast Correctional Center.

On January 14, 1998, while on parole from his Tennessee sentence, Mr. Cotten was arrested for grand theft auto in Orlando, Florida. The Tennessee Board of Paroles issued a warrant on January 20, 1998, based on information Mr. Cotten had violated his parole and declaring him a fugitive from justice. On March 23, 1998, a Florida court issued an order to hold and deliver Mr. Cotten on the charge of parole revocation. Because Mr. Cotten was then in custody in a Florida jail pending disposition of the auto theft charge, he was not then delivered to Tennessee authorities.

On May 28, 1998, Mr. Cotten entered a plea of nolo contendere to the grand theft auto charge. In July of 1998, Mr. Cotten was sentenced on the grand theft auto charge to seven and a half (7 1/2) years in the Florida Department of Correction with 135 days of jail credit. The order issued by the Florida court specified that the sentence was to run concurrently with any sentence Mr. Cotten received as a result of the pending parole revocation case in Tennessee.

In 1999, Mr. Cotten sought a transfer to a Tennessee prison, but was denied that transfer due to overcrowding in Tennessee jails and a statewide freeze on the transfer of out-of-state prisoners. Thereafter, Mr. Cotten filed a "request for leave to waive revocation hearing, admission to violation of parole and request to have parole hearing in absentia and affidavit" with the Board. His request to the Board contained the following: (1) a statement of the facts leading up to the issuance of the parole revocation warrant from Tennessee; (2) allegations that he possessed a "bona fide right and genuine interest in a timely disposition of the pending parole violation charges according to Tenn. Code Ann. 40-28-122"; (3) a request that the Board allow him to waive the right to be present at the revocation hearing and sentencing; and (4) a proposal that the Board allow any sentence he received as a result of his parole revocation to run concurrently with his Florida sentence. Mr. Cotten also attached an affidavit which merely reiterated the factual allegations encompassed in his request to the Board. He received no response to this request even after sending three letters¹ to the Director of the Board.

Mr. Cotten then filed a petition for writ of mandamus, asking the court to order the Board to grant his request for waiver of a parole violation hearing and sentence him in absentia. Specifically, his petition alleges that Tenn. Code Ann. 40-28-122(b) and (c) and the Due Process Clause of the Fourteenth Amendment entitle him to a timely response and/or disposition of his request "by virtue of the lawful execution of the parole violation warrant on March 19, 1998"; that he has waited more than a reasonable amount of time for the Board to act on his request; and that he has diligently sought resolution of the matter with the Board.

The trial court dismissed the case citing Tenn. Code Ann. 40-28-112² and Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274 (1976), stating that:

Moody held that there is no constitutional duty to provide an adversary parole hearing until the individual is taken into custody as a parole violator. The defendant here has no legal duty to provide the petitioner with a parole revocation hearing at this time. It is not under that duty until petitioner is returned to Tennessee. This case is clearly not appropriate for mandamus. See, e.g., Speakman v. State of Ohio, 520 N.E.2d 600 (Ohio App. 1987). The Court is aware that the petitioner contends that he was 'served' with a parole violation warrant in Florida. While the Court doubts the accuracy of that allegation, the Court is aware that the allegations in the petition must be assumed as true. There is no doubt, however, that the petitioner is not within the custodial control of the State of Tennessee. He is not, therefore "in custody" for purposes of the parole violation warrant.

Mr. Cotten filed a timely notice of appeal with this court, and has presented his issues in a well-organized and well-written brief. Resolution of the issues he raises depends upon the duty of the Board to a parolee in Mr. Cotten's situation.

II. Writ of Mandamus

The writ of mandamus is an extraordinary remedy. Peerless Constr. Co. v. Bass, 158 Tenn. 518, 522, 14 S.W.2d 732,733 (1929); State v. Thompson, 118 Tenn. 571, 102 S.W. 349 (1907); State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 570 (Tenn. Ct. App. 1994). Its purpose is to enforce a clearly established legal right, State v. Irick, 906 S.W.2d 440, 442 (Tenn. 1995), or to compel a public official to perform his or her legal duties. State ex rel. Ledbetter v. Duncan, 702 S.W.2d 163, 165 (Tenn. 1985). Therefore, to obtain the writ of mandamus, the petitioner must show a specific and complete right which is to be enforced. Winters v. Burfurd, 46 Tenn. (6 Cold.) 328, 330-31(1869); Hayes v. Civil Serv. Comm'n of Metro. Gov't, 907 S.W.2d 826, 829 (Tenn. Ct. App. 1995).

Mandamus cannot be used to control a public official's judgment or discretion. State ex rel. Harned v. Meador, 153 Tenn. 634, 640, 284 S.W. 890, 892 (1926); Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn. Ct. App. 1990). It serves only to control ministerial acts. Waters v. State, 583 S.W.2d 756, 763 (Tenn. 1991). Thus, the writ cannot be used to compel a public official to perform a discretionary act or to perform a discretionary act in a particular way. State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500, 505 (Tenn. Ct. App. 1991). A writ of mandamus is proper only when nothing is left to the public official's judgment. Tusant v. City of Memphis, 56 S.W.3d 10, 18 (Tenn. Ct. App. 2001).

Mr. Cotten argues that he has a constitutionally protected right to a revocation hearing within a reasonable time of the service of a parole revocation warrant and that Tenn. Code Ann. 40-28-122 requires the Board to hold such a hearing within a reasonable time.

III. When Must Hearing Be Held

The Board is "charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to such violation." Tenn. Code Ann. 40-28-118(c). Revocation is initiated by the issuance of a warrant for "the retaking" of a parolee if the director of the Board determines that parole may have been violated in an important respect. Tenn. Code Ann. 40-28-120. The warrant is executed "by taking the prisoner and returning the prisoner to a prison, workhouse or jail to be held to await the action of the board." Tenn. Code Ann. 40-28-121(a).

After those steps, parole revocation in Tennessee is generally a two-stage process. The first stage is a preliminary hearing to determine whether there is probable cause to believe that the parolee has violated the conditions of his parole in an important respect.³ The requirement of a preliminary hearing is triggered by the arrest of a parolee pursuant to execution of a parole violation warrant. Tenn. Code Ann. 40-28-121(c).

The second stage is a final hearing to determine whether revocation is warranted. The procedure for hearings on parole violations is set forth in Tenn. Code Ann. 40-28-122, which, in pertinent part, states:

(b) After being notified that a [parole revocation] warrant has been executed and a probable cause hearing has been held or waived, the board shall, as soon as...