Vance v. Holland, 16881

• Decision Date: 19 March 1987
• Docket Number: No. 16881,16881
• Citation: 177 W.Va. 607,355 S.E.2d 396
• Parties: Arnold Lee VANCE v. Manfred HOLLAND, Warden, etc.
• Court: West Virginia Supreme Court

Page 396

355 S.E.2d 396

177 W.Va. 607

Arnold Lee VANCE v. Manfred HOLLAND, Warden, etc.

No. 16881.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 16, 1986.

Decided March 19, 1987.

Syllabus by the Court

1. "Our parole statute, W.Va.Code, 62-12-13 (1979), creates a reasonable expectation interest in parole to those prisoners meeting its objective criteria." Syl. pt. 1, Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183 (1980).

2. "Release on parole is a substantial liberty interest and the procedures by which it is granted or denied must satisfy due process standards." Syl. pt. 3, Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183 (1980).

3. "The decision to grant or deny parole is a discretionary evaluation to be made by the West Virginia Board of Probation and Parole. However, such a decision shall be reviewed by this Court to determine if the Board of Probation and Parole abused its discretion by acting in an arbitrary and capricious fashion." Syl. pt. 3, Rowe v. Whyte, --- W.Va. ---, 280 S.E.2d 301 (1981), quoting Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183, 190 (1980).

Jeff Woods, Jackson, Kelly, Holt & O'Farrell, Charleston, for petitioner.

Mary Beth Kershner, Asst. Atty. Gen., Charleston, for respondent.

PER CURIAM:

In this original proceeding in habeas corpus, the petitioner, Arnold Lee Vance, seeks his immediate release from incarceration at the West Virginia Penitentiary at Moundsville. Petitioner charges that his statutory right to a parole hearing was repeatedly denied by the West Virginia Board of Probation and Parole (hereinafter Board) and his immediate discharge from prison is therefore required. Petitioner also premises his request for release on the Board's refusal to grant him parole based on his violation of prison rules and regulations during the period when petitioner was denied access to the Board.

In November, 1962, the petitioner, who was sixteen years old, and a co-defendant were convicted of first degree murder in the Circuit Court of Fayette County and sentenced to life imprisonment. The statutory penalty for a first degree murder conviction at that time was either death or life imprisonment. Those who received a life sentence were entitled to a parole hearing after serving ten years, without the necessity for a recommendation of mercy. The petitioner has been continuously incarcerated since 1962 while his co-defendant was released on parole after serving ten years of his term.

In 1965, the death penalty in West Virginia was abolished by the legislature. W.Va.Code, 61-2-2 ¹ and 62-3-15 ², were amended to provide life imprisonment for first degree murder either with or without a recommendation of mercy at the discretion of the jury, or judge in cases where a plea is entered. ³

The Board granted petitioner a parole hearing in 1972, 1973 and 1974 and then failed to interview him annually from 1975 until 1982, as required by W.Va.Code, 62-12-13. ⁴ The Board interviewed petitioner in September, 1982, but at the end of the hearing concluded that he was ineligible for further interviews because his conviction order included no recommendation of mercy. The Board interviewed petitioner on September 3, 1985, and again ruled that he was ineligible for parole consideration for that same reason.

The Board then sought an opinion on petitioner's parole eligibility from the Office of the Attorney General. After being advised that petitioner had been eligible for parole consideration each year after his tenth year of incarceration, the Board notified petitioner that a new hearing would be scheduled. Following a hearing on January 21, 1986, the Board denied petitioner parole because "the circumstances of your crime merit continued punishment" and his "record of violation of prison rules indicates an inability to live by rules and regulations."

In support of its decision, the Board noted "strongly as negative factors": (1) petitioner had been cited for 94 disciplinary infractions during his 23 years of incarceration; (2) the facts and circumstances of his crime (murder); and, his current criminal record of one felony conviction (murder). The Board also considered the following "positive factors": (1) improvement in his mental or moral condition; (2) good work record in prison; and (3) adequate participation in the prison's educational, vocational and therapeutic programs. Petitioner's attitude toward those responsible for his incarceration, including the judge, prosecuting attorney and police officers, and his attitude toward the crime committed and society in general were rated by the Board as "neutral factors."

In response to the petition respondent filed a motion to dismiss due to mootness which asserted that, notwithstanding the Board's legal error, petitioner was not eligible for parole because between 1975 and 1980 he was almost continuously assigned to North Hall as punishment for violations of prison rules. ⁵ Respondent also states that since a parole hearing was granted petitioner in January, 1986, and a decision rendered on the merits, his claim for relief is now moot and the petition should be dismissed.

Petitioner contends he is entitled to immediate release from the penitentiary because the Board refused to hold parole hearings between both 1975 and 1982, and 1983 and 1985 on the erroneous legal assumption that without a mercy recommendation in his sentencing order, he was ineligible for parole. Petitioner asserts that the Board's conduct violated his constitutional right to due process and equal protection and that as a result, petitioner has been subjected to cruel and unusual punishment. Petitioner also asserts that when the disciplinary infractions which occurred during the years he was denied parole interviews are disregarded, he is eligible for immediate parole.

The petitioner was effectively denied a parole interview from 1975 until 1986 since the Board's rulings in both 1982 and 1985 precluded any meaningful review of his status. Petitioner notes that most of the disciplinary infractions in his record occurred during the earlier years of his incarceration. Petitioner also points out that the Board's refusal to grant any interviews affected his overall attitude and behavior and could account, in part, for the violation of rules during those years.

"Nothing in the constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met." Tasker v. Mohn, 165 W.Va. 55, 60, 267 S.E.2d 183, 187 (1980), quoting Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 19, 99 S.Ct. 2100, 2110, 60 L.Ed.2d 668, 683 (1979) (Powell, J., concurring and dissenting).

The majority in Greenholtz, supra, held that due process protection for a prisoner's interest in being granted parole depended on the language of each state's statute. In Tasker, however, we held that the due process clause of Art. III, § 10, W.Va. Const. required that certain procedural safeguards be defined for the protection of prisoners seeking parole. ⁶ "Release on parole is a substantial liberty interest and the procedures by which it is granted or derived must satisfy due process standards." Syl. pt. 3, Tasker, supra.

In addition we ruled that "[o]ur parole statute, W.Va.Code, 62-12-13 (1979), creates a reasonable expectation interest in parole to those prisoners meeting its objective criteria." Syl. pt. 1, Tasker, supra. Our requirement in Tasker that inmates must be given a written statement of reasons for a denial of parole can encourage rehabilitation by providing inmates specific goals which, if met, can lead to release in the future. See Sites v. McKenzie, 423 F.Supp. 1190 (1976). In petitioner's case it is reasonable to conclude that the wrongful denial of parole consideration over an eleven-year period could certainly have had the effect of encouraging despair and disrespect for prison authority.

The decision to grant or deny parole is a discretionary evaluation to be made by the West Virginia Board of Probation and Parole. However, such a decision shall be reviewed by this Court to determine if the Board of Probation and Parole abused its discretion by acting in an arbitrary and capricious fashion.

Syl. pt. 3, Rowe v. Whyte, --- W.Va. ---, 280 S.E.2d 301 (1981), quoting Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d 183, 190 (1980).

We hold that the Board abused its discretion by arbitrarily and capriciously refusing to grant petitioner a parole interview. The January, 1986 hearing failed to fully correct the injustice suffered by petitioner as a result of the Board's repeated violation of his statutory right ⁷ to annual parole consideration. The Board's denial of parole after this hearing was based in part on petitioner's disciplinary history, including infractions which occurred during years when access to the Board was denied. It is clear that the petitioner was entitled to annual parole hearings before the Board, after having served ten years of his sentence. Therefore, we do not believe it would be appropriate to...