Greenwood v. Tenn. Bd. of Parole

• Decision Date: 23 October 2017
• Docket Number: No. M2016–02059–COA–R3–CV,M2016–02059–COA–R3–CV
• Citation: 547 S.W.3d 207
• Parties: Billy Joe GREENWOOD v. TENNESSEE BOARD OF PAROLE
• Court: Tennessee Court of Appeals

547 S.W.3d 207

Billy Joe GREENWOOD

v.TENNESSEE BOARD OF PAROLE

No. M2016–02059–COA–R3–CV

Court of Appeals of Tennessee, Middle Section, AT NASHVILLE.

Assigned on Briefs August 1, 2017

FILED October 23, 2017

Application for Permission to Appeal Denied by Supreme Court February 14, 2018

Billy Joe Greenwood, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor General; and Thomas J. Aumann, Assistant Attorney General, for the appellee, Tennessee Board of Parole.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.

Thomas R. Frierson, II, J.

This appeal arises from the denial of parole to an inmate by the Tennessee Board of Parole ("the Board"). The inmate was convicted in 1990 of first degree murder and first degree burglary. The Board denied parole on the basis that the inmate's release at the time of the hearing would depreciate the seriousness of the crime for which he was convicted. The inmate filed a petition for writ of certiorari with the Davidson County Chancery Court ("trial court"), alleging violations of due process and equal protection. The trial court denied relief, determining that no grounds existed to disturb the Board's decision. Discerning no reversible error, we affirm.

I. Factual and Procedural Background

Billy Joe Greenwood is an inmate in the custody of the Tennessee Department of Correction, currently housed at the Morgan County Correctional Complex. In 1990, Mr. Greenwood was convicted of first degree murder and first degree burglary. He was sentenced to life in prison for the murder conviction and six years of incarceration for the burglary conviction, with such sentences to be served concurrently.¹ On direct appeal, Mr. Greenwood's convictions were affirmed by the Tennessee Court of Criminal Appeals, which recited the following facts underlying Mr. Greenwood's original convictions:

The record establishes that in April 1989, the defendant was quite distraught over his recent divorce from Alice Evonne Dishman and resulting separation from his young daughter. While in this troubled state of mind, the defendant began to consume excessive amounts of alcoholic beverages and drugs. During the day of 22 April 1989, he drank approximately two cases of beer, smoked marijuana, and ingested cocaine and valium.

That evening, Greenwood broke into the home of Sherry Dishman, Alice Evonne Dishman's sister, and took a loaded .30–.30 caliber rifle. Rifle in hand, he sat on the hood of his car in front of her home waiting for his former wife to stop by.

Sherry Dishman arrived first. She was accompanied by a male friend, Charles Haney. They did not observe Greenwood, and he permitted them to pass without incident.

A short time later, David Dishman drove up, and Greenwood confronted him. After saying to Dishman, "You ain't Evonne, you son-of-a-bitch," he shot Dishman in the stomach. Leaving Dishman on the ground where he had fallen, the defendant went to the front door of the home, kicked it in, and entered.

Once inside, he was met by Sherry Dishman and Haney. The rifle discharged as the three of them struggled over it. Unable to cock the rifle again, the defendant produced a knife and threatened to use it to kill them.

Haney and Dishman were able to eject the defendant. Outside again, the defendant noticed that David Dishman was attempting to stand. Dishman reached out to the defendant, called his name, and apologized for whatever he had done to him. In response, the defendant said that they would die together and thereupon shot Dishman a second time. Dishman later succumbed to these wounds

, and the defendant was arrested two days later.

State v. Greenwood , No. 01C01-9108-CC-00228, 1992 WL 38054, at *1 (Tenn. Crim. App. Mar. 3, 1992) (reinstated op.).²

According to Tennessee Board of Parole records, a parole hearing regarding Mr. Greenwood was held on July 14, 2009, following which the Board denied parole upon finding that Mr. Greenwood's release from custody at that time would have depreciated the seriousness of his crime. The Board recommended that Mr. Greenwood complete or participate in "anger [management], substance abuse [treatment], criminal thinking, etc. programs," and a review hearing was scheduled for July 2015.

This second parole hearing, held on July 23, 2015, is at issue now on appeal. Mr. Greenwood spoke during the hearing and requested that the Board release him from custody on parole. Evidence presented at the hearing included the factual circumstances concerning the criminal offense for which Mr. Greenwood is incarcerated, in addition to signatures supporting and in opposition to parole; oral statements in support of parole presented by Mr. Greenwood, two prison employees, and a friend of Mr. Greenwood's; certificates of completion from various programs in which Mr. Greenwood had participated while incarcerated, including Change Companies Residential Drug Abuse Program, Victim Impact Program, Pro–Social Life Skills Program, and Behavioral Therapeutic Community; letters both in support of and in opposition to Mr. Greenwood's release on parole; and oral statements from Alice Dishman, Sherry Dishman, Charles Haney, and a representative of the district attorney's office in opposition to Mr. Greenwood's release.

Following the parole hearing, the hearing officer, Board member Tim Gobble, informed Mr. Greenwood that he was voting to deny parole, having concluded that the seriousness of Mr. Greenwood's crime would be depreciated by his release at that time. When informing Mr. Greenwood of his recommendation, Mr. Gobble stated:

Mr. Greenwood, after considering the totality of the circumstances here and your file, there [are] some things I want to commend you on. I do want to commend you on your institutional behavior and your efforts there.

I want to commend you on your program participation and your efforts there with your substance abuse and addiction issues and your admitted anger issues that you were no doubt dealing with at the point of this offense.

But I also cannot overcome at this time the seriousness of this offense where a young man was ruthlessly and needlessly gunned down by you not once, but twice, and the 18–year-old young man had no involvement in anything at all with what you were angry about, and had a full life ahead of him that was taken away from him senselessly and needlessly.

And you having served less than 30 years of a life conviction prevents me from voting to parole you at this time because of the seriousness of the offense in which you were convicted of.

To do so at this time would depreciate the seriousness of the crime of which you've been convicted and promote disrespect for the law. So my vote is to deny your parole and review it again in July of 2020. That's five years from now.

I do want to commend you on the efforts that you are making towards rehabilitation. I think you are showing some progress. I want to see that continue.

I appreciate the comments that the prison officials have made, and I know they don't do that lightly.

And so I think you have made some strides. But again, the seriousness of this offense just prevents [me from] voting to parole you at this time, having served less than 30 years of a life sentence.

Three additional Board members adopted Mr. Gobble's reasoning and voted unanimously to deny parole. On August 4, 2015, the Board provided Mr. Greenwood with written notice that parole had been denied and that his next parole hearing would be scheduled for July 2020. Mr. Greenwood filed an administrative appeal with the Board, which was ultimately denied. Following a review of the Board's file and an audio recording of the hearing, the Board reasoned that Mr. Greenwood's allegation that significant procedural errors had occurred at the parole hearing was unsubstantiated.

Mr. Greenwood subsequently filed a petition for writ of certiorari with the trial court. Upon the Board's notice of no opposition to the issuance of a writ of certiorari, the trial court granted Mr. Greenwood's petition.³ In the trial court, Mr. Greenwood alleged that the Board's denial of parole violated "his Fourteenth Amendment right to due process of law under the United States Constitution and article one sections eight and nine of the Tennessee Constitution." Mr. Greenwood also alleged that his equal protection rights were violated, arguing that other inmates who were similarly situated had been released on parole.

The trial court subsequently entered an order dismissing Mr. Greenwood's petition upon finding that "[t]he declination of parole based upon seriousness of the offense is supported by evidence in the hearing transcript in this case, describing [Mr. Greenwood's] murder of a defenseless eighteen year old who was not involved in the dispute between [Mr. Greenwood] and his ex-wife." The court concluded that "the Board's final decision to decline parole based on the seriousness of the offense was proper pursuant to Tenn. Code Ann. § 40–35–503(b) and Arnold [v. Tenn. Bd. of Paroles , 956 S.W.2d 478 (Tenn. 1997).]." The trial court further found that the Board's deferral of parole for five years was "not unlawful or arbitrary." Regarding Mr. Greenwood's equal protection argument, the trial court concluded that a petition for writ of certiorari was "an improper vehicle for such a claim." Mr. Greenwood timely appealed to this Court.

II. Issue Presented

Mr. Greenwood presents one issue on appeal, which we have restated as follows:

Whether the trial court erred by denying relief to Mr. Greenwood upon his petition for writ of certiorari.

III. Standard of Review

Inmates may use the common law writ of certiorari to seek review of decisions made by prison disciplinary boards, parole eligibility review boards, and other similar tribunals. Willis v. Tenn. Dep't of Corr. , 113 S.W.3d 706, 712 (Tenn. 2003). The common law writ of certiorari has been used to "remedy (1)...