McClain v. Tenn. Bd. of Parole
| Decision Date | 11 December 2018 |
| Docket Number | No. M2018-00205-COA-R3-CV,M2018-00205-COA-R3-CV |
| Parties | JOHNNY McCLAIN, JR. v. TENNESSEE BOARD OF PAROLE ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Davidson County
Russell T. Perkins, Chancellor
This is an appeal from the dismissal of an inmate's petition for common law writ of certiorari. The Tennessee Board of Parole denied petitioner parole, citing the seriousness of the offense, the substantial risk that petitioner would not conform to the conditions of his release, the adverse effect his release would have on institutional discipline, and his need to complete therapeutic community. Petitioner appealed the Board's decision by petition for writ of certiorari. The petition was dismissed by the trial court, which found that the petitioner had failed to present any facts that would support a claim that the Board acted illegally, fraudulently, arbitrarily, or in excess of their jurisdiction. This appeal followed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
Johnny McClain, Hartsville, Tennessee, Pro se.
Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor General, and Charlotte Davis, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Board of Parole, Zane Duncan, Gary M. Faulcon, Ma'Tessa Fields, Helen D. Ford, Tim Gobble, Gay Gregson, Roberta Nevil Kustoff, Richard Montgomery, and Barrett Rich.
OPINIONJohnny McClain ("Petitioner") is an inmate in the custody of the Tennessee Department of Correction, serving 35 years for especially aggravated robbery, 15 years for aggravated robbery, 10 years each for two counts of aggravated assault, and 15 years for facilitation of an attempted first-degree murder—all of which occurred on August 1, 1994. On that date, James Walsh, his wife, and his two sons—ages seven and two at the time—were on their way home from a vacation trip to Florida and stopped in Nashville to spend the night. The family planned to visit Opryland USA the next day, so Mr. Walsh had reserved a room at the Ramada Inn on Music Valley Drive near the theme park. The family arrived at the hotel, and, while unloading their luggage, Mr. Walsh noticed a man approaching him. The man then pulled out a gun, pointed it at Mr. Walsh, and demanded money. Mr. Walsh complied. The gunman, however, became angered by the small amount Mr. Walsh had given him and pointed the gun at Mrs. Walsh and the children, threatening to shoot them.
In an effort to protect his family, Mr. Walsh lunged at the gunman. In the ensuing struggle, the gun discharged three times, and one of the bullets struck Mr. Walsh in the left shoulder, lodging itself dangerously close to his spine. The gunman fled, but not before firing a fourth shot at Mr. Walsh, which narrowly missed him. Mr. Walsh yelled after the gunman, who had at this point joined up with an accomplice. The two men jumped into a red car being driven by Petitioner, and the three men sped away.
During the robbery and the shooting, Patrick Hamblin, an off-duty Cheatham County Deputy, was across the street from the hotel. Hearing the shots and witnessing the struggle between Mr. Walsh and the gunman, Deputy Hamblin rushed to the hotel parking lot in his pickup truck to offer assistance. He reached the lot at the same time the three men in the car attempted to flee the scene. He positioned his truck to block the three men's exit, announcing his presence as law enforcement and ordering the three men out of the car. Petitioner disregarded Deputy Hamblin's order, pulled around his truck blocking the exit, and sped away.
Deputy Hamblin gave chase and followed the car as it sped down McGavock Pike. The chase lasted for several miles and reached speeds between 85 and 100 miles per hour. Deputy Hamblin testified that Petitioner ignored traffic lights, stop signs, and drove on the wrong side of the road. At one point, the accomplice riding in the backseat hung out the window and fired a shot at Deputy Hamblin's truck. Eventually, Deputy Hamblin got close enough to the car and struck it with his truck, causing it to crash into a porch railing. The three men then jumped out of the car. Instead of fleeing on foot, Petitioner charged towards the truck while Hamblin was still seated behind the wheel. Unable to see Petitioner's hands, Deputy Hamblin shot him in the chest as he reached thetruck's driver-side window. Petitioner then turned and fled. Police arrived soon after, and Petitioner was found a few blocks away and arrested. Petitioner was subsequently incarcerated in the custody of the Tennessee Department of Correction.
Petitioner's hearing in front of the Board of Parole ("the Board") was held on July 21, 2016. Mr. Walsh traveled from Pennsylvania to Nashville, Tennessee to voice his opposition to granting Petitioner parole. At the hearing, Mr. Walsh described his injuries, testifying that they had prevented him from being able to work for over a year after the incident. He also testified to the effect the incident had on his marriage. According to Mr. Walsh, his wife began drinking heavily after the incident, which led to the gradual deterioration of their marriage.1 Nicholas Bailey, one of the prosecutors in the case, also voiced his opposition to granting Petitioner parole. He told the Board: "[T]he reason that I'm here 18 years after I left the DA's office is because if there was ever anybody I felt the public needed to be protected from, it is [Petitioner]."
Other evidence submitted to the Board demonstrated that Petitioner has a long history of criminal activity and recidivism. At Petitioner's trial for the crimes underlying this appeal, the trial court remarked that Petitioner had been in and out of court "like a revolving door." Also at that trial, Petitioner admitted that there had been only one calendar year since he turned eighteen in which he was not arrested or sent to jail. Specifically, Petitioner received two stolen property possession convictions and two simple robbery convictions in 1987 and a third-degree burglary conviction in 1988. Petitioner served time for these offenses and was paroled in 1989; however, he violated his parole when, in 1990, he received another robbery conviction. He served time and was paroled for this offense, but, in 1993, he again violated his parole due to his (1) unlawful possession of a weapon, (2) failure to report an arrest, (3) failure to work at lawful employment; (4) two driver's license violations, and (5) criminal impersonation.
Petitioner has also had numerous disciplinary problems in prison while serving out his current sentence. Since he has been incarcerated, Petitioner has received 49 disciplinary write-ups. Of those 49, the more egregious include eight positive drug screens, two attempts to alter a drug screen, two instances of possession of drug paraphernalia, one instance of possession of marijuana, three infractions for fighting—a fourth for assaulting a staff member while trying to flush marijuana down the toilet—one instance of possession of a pop lighter, two instances of possession of homemade knives, and one instance of possession of a cell phone.
After the parole hearing, and after the Board's review of all of the evidence referenced above, all four members of the Board voted against granting Petitioner parole. The reasons cited for such denial included: the seriousness of the offense; the substantialrisk that Petitioner would not conform to the conditions of his release; the adverse effect his release would have on institutional discipline; and his need to complete therapeutic community. Petitioner appealed the Board's decision in the Chancery Court of Davidson County via a petition for common law writ of certiorari. On December 21, 2017, the trial court dismissed the petition for writ of certiorari, finding that Petitioner had failed to present any facts that would support a claim that the Board had acted illegally, fraudulently, arbitrarily, or in excess of their jurisdiction. Petitioner now appeals that decision.2
Petitioner raises only one issue on appeal: Whether the trial court erred in affirming the Tennessee Board of Parole's decision to deny Petitioner parole due to the seriousness of his offense, the substantial risk to reoffend, the need to complete therapeutic community, and the substantial adverse effect on institutional discipline.
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) fundamentally illegal rulings; (2) proceedings inconsistent with essential legal requirements; (3) proceedings that effectively deny a party his or her day in court; (4) decisions beyond the lower tribunal's authority; and (5) plain and palpable abuses of discretion." Id.
The decision of whether to grant or deny parole to an inmate is vested with the Board, not the courts. See Hopkins v. Tenn. Bd. of Parole & Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001). Therefore, judicial review of a Board's decision concerning parole is limited. Id. As our Supreme Court has noted:
Judicial review of a parole decision made by the Board is narrow; it is limited to consideration of whether the Board exceeded its jurisdiction or acted illegally, arbitrarily, or fraudulently. Tenn. Code Ann. § 27-8-101; Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012); Willis v. Tenn. Dep't of Corr., 113 S.W.3d 706, 712 (Tenn. 2003). The reviewing court does not inquire into the intrinsic correctness of the Board's decision,...
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