Ellard v. State

• Decision Date: 26 June 1984
• Docket Number: 3 Div. 927
• Citation: 474 So.2d 743
• Parties: Richard Mark ELLARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 743

474 So.2d 743

Richard Mark ELLARD v. STATE.

3 Div. 927.

Court of Criminal Appeals of Alabama.

June 26, 1984.

Rehearing Denied Aug. 14, 1984.

Ira A. Burnim and Ralph I. Knowles of Drake, Knowles & Pierce, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Richard Mark Ellard, was paroled to the prison authorities of the State of Georgia by the Alabama Board of Pardons and Paroles (hereinafter referred to as the "Board") to continue serving a Georgia prison sentence. The Board revoked the parole on the grounds that its action in granting it initially violated statutory requirements which were mandatory, rendering its action null and void. Ellard unsuccessfully petitioned the Circuit Court of Montgomery County to declare the action of the Board, in revoking the parole, illegal and unconstitutional, and he now appeals to this court.

The report of investigation in the record shows that on September 4, 1971, Richard Mark Ellard abducted Charlotte Parks and Nancy Conn from a parking lot in Birmingham and forced them to accompany him to a remote area in Blount County, Alabama, where he murdered Charlotte Parks by stabbing her repeatedly with a knife. He beat Nancy Conn, held her head under water in an effort to drown her, and threw her off of a large embankment, leaving her for dead. She survived. In June 1971, prior to the incident involving Charlotte Parks and Nancy Conn, Richard Mark Ellard had abducted Sandra Dee Swisher, a student at the University of Alabama in Birmingham, from the campus of the University and forced her to accompany him to Douglas County, Georgia, where he murdered her by stabbing her with a knife or sharp instrument. There was evidence of rape and mutilation.

On May 9, 1972, Ellard pleaded guilty in the Circuit Court of Blount County to the offense of murder in the first degree in the case involving Charlotte Parks and was sentenced to life imprisonment. He pleaded guilty on the same date to the offense of assault with intent to murder Nancy Conn and was sentenced to 20 years in the penitentiary. It was ordered that the two sentences run concurrently.

On March 26, 1976, Ellard pleaded guilty in the Superior Court of Douglas County, Georgia, to the murder of Sandra Dee Swisher and was sentenced to life imprisonment. It was ordered that the Georgia sentence run concurrently with the Alabama sentences.

After serving the equivalent of ten years in the Alabama prison system, he became eligible for parole consideration in 1980 and was evaluated for that purpose by the Board.

Following a parole hearing in early 1981, and with the consent of two of the three members of the Board, a certificate of parole was issued to Ellard on March 2, 1981. In compliance with a Georgia detainer, Ellard was then transferred to the Georgia penal system, where he was to complete the life sentence imposed by the Superior Court of Douglas County, Georgia. The evaluation report contained in the Board's file indicated that Ellard would become eligible for parole consideration in Georgia in May of 1981.

The certificate of parole contained certain conditions, among which was number eight, which is as follows: "I hereby waive all extradition rights and process and agree to return when said Board directs at any time before expiration of my maximum sentence."

In April 1981, the Board served Ellard with a notice of violation of condition eight of the certificate of parole. The notice is quoted as follows:

"Richard Mark Ellard, AIS 105,115

"B. Technical Violations:

"# 8--Ordered to return by Parole Board on basis of new information.

"DIRECTED TO RETURN BY THE BOARD under provisions of Condition # 8 of your Conditions of Parole; to wit: 'I hereby waive all extradition rights and process and agree to return when said Board directs at any time before expiration of my maximum sentence.'

"You have been directed by the Board to return for a hearing to determine whether your parole to a Georgia detainer, granted March 2, 1981, should be revoked and rescinded. The basis of this action is as follows:

"Subsequent to your parole to the Georgia detainer on March 2, 1981, the Board received new material and pertinent information, not known to the Board at the time parole was ordered, causing the Board to determine that it should consider the revocation and rescission of your parole to the Georgia detainer.

"On April 16, 1981, the Attorney General of Alabama was requested to render an official opinion on the question of whether or not the Board had the power and authority to rescind, revoke, nullify, or otherwise withdraw and make null and void a grant of parole which had been legally issued and executed in favor of a detainer warrant from another jurisdiction but prior to actual release of the prisoner from prison custody to the community. On April 17, 1981, the Attorney General of Alabama issued his opinion in the affirmative stating '... it is my opinion that the Board of Pardons and Paroles has failed to carry out the responsibility mandated to the Board in § 15-22-25 and § 15-22-31. It is my opinion that the Board should take immediate steps to reconsider and revoke the parole granted to Richard Mark Ellard in light of the abject failure of the Board to consider the crimes of this individual. In order to carry out the responsibilities charged to the Board in the Code of Alabama they must take that action immediately.'

" 'In order to accomplish the reconsideration or revocation of parole, it is further my opinion that the Board should follow the due process mandates outlined in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)....'

"You were, therefore, declared delinquent by the Board, April 17, 1981, as a technical violator under provisions of parole condition # 8 as noted above pending a hearing on the issue of revocation and rescission of your parole.

"The new information to be considered at your hearing is based on the following items:

"1. Alleged threats against victim Nancy Conn and/or members of her family.

"2. Additional evidence of propensity for criminal behavior.

"a. Escape from custody in 1971.

"b. Arrest for Altering U.S. Postal Money Orders, November 3, 1977.

"c. Vehicle theft--Theft of Automobile owned by Gregory Yestadt, Hattiesburg, Mississippi, on or by July 1, 1977.

"d. Possession of pistol ... while on escape in 1977.

"e. Attempted abduction of A.L. Saucier, Hattiesburg, Mississippi, while on escape in 1977.

"3. Additional evidence regarding your offenses which significantly magnify the seriousness of the crimes.

"a. Extent of injuries to and mutilation of body of Charlotte Parks.

"b. Extent of injuries to Nancy Conn.

"c. Sexual abuse of victims.

"d. Report of Lunacy Commission evaluation, December 1971.

"4. Additional evidence of extraordinary public opposition to parole.

"a. Magnitude and extent of protests from individual citizens.

"b. Extensive editorial and news story opposition by press, radio, and television.

"c. Censure of Board of Pardons and Paroles by the House of Representatives of the Alabama State Legislature.

"d. Opposition expressed in official report of House of Representatives Special Legislative Investigation Committee.

"e. Vigorous, extensive denunciation and opposition from the Attorney General of Alabama."

The governors of Alabama and Georgia entered into an agreement whereby Ellard was returned to Alabama to attend hearings in reference to the possible revocation of his parole.

A preliminary hearing was held before a hearing officer on May 11, 1982, for the purpose of determining whether there was probable cause for the revocation of the parole. On May 14, 1982, the hearing officer found that sufficient probable cause did exist, and referred the case to the Board for further consideration.

An evidentiary hearing was held before the Board July 7, 1982, and on July 15, 1982, the Board ordered the revocation of the certificate of parole, citing the Attorney General's Opinion of April 17, 1981, and new evidence. Ellard was returned to the Georgia penal system and the Board lodged a detainer with the Georgia authorities requesting that upon his release in Georgia he be returned to the Alabama prison system.

On August 30, 1982, Ellard filed a petition for writ of habeas corpus in the Circuit Court of Montgomery County, Alabama, alleging that the actions of the Board in revoking his parole and filing the detainer with the Georgia penal authorities were illegal. The State of Alabama, the Board of Pardons and Paroles, individual members of the Board, and the Commissioner of the State Department of Corrections of the State of Alabama were made parties respondent to his petition.

On September 8, 1982, the above named respondents moved to dismiss the petition for writ of habeas corpus on the grounds that it was not an appropriate remedy, since none of the respondents had custody of Ellard, and that Ellard was imprisoned in the State of Georgia. Ellard amended his petition for writ of habeas corpus to ask in the alternative for a common law writ of certiorari to review the legality of the actions of the Board. The record reflects that the parties agreed to treat the proceedings as a petition for writ of certiorari and therefore the trial court did not rule upon the motion to dismiss the petition for writ of habeas corpus, noting in the case action summary that the motion to dismiss was moot.

The trial court issued the writ of certiorari September 28, 1982, ordering the Board to certify its complete record pertaining to Ellard to the court. The Board filed its return to the writ and the parties stipulated that the complete record of the Board was before the trial court. The case was submitted on the records of the Board, briefs, and arguments of counsel.

The trial court entered its final order on the merits August 31, 1983, holding, inter alia, that at...