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Wells v. Tennessee Board of Probation and Parole

Court of Appeals of Tennessee, Nashville

October 6, 2014

JOHN C. WELLS, III
v.
TENNESSEE BOARD OF PROBATION AND PAROLE

Assigned on Briefs September 02, 2014

Appeal from the Chancery Court for Davidson County No. 12976I Claudia C. Bonnyman, Chancellor

John C. Wells, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and Jennifer L. Brenner, Senior Counsel, for the appellee, Board of Probation and Parole and Charles Traughber.

Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins, and W. Neal McBrayer, JJ., joined.

OPINION

ANDY D. BENNETT, JUDGE

Background

In 1997, John C. Wells, III, was convicted of nine counts of aggravated sexual battery and given an aggregate sentence of ninety years in the custody of the Department of Correction. His initial parole hearing took place on April 2, 2012, at the Northeast Correctional Complex. The four participating Board members were Yusuf Hakeem, who presided over the hearing, Chairman Charles Traughber, Patsy Bruce, and Ronnie Cole, all of whom were appointed by the Governor. Mr. Hakeem and Mr. Traughber's appointments were both set to end on December 31, 2011.

During the course of the hearing, Mr. Wells's personal history was reviewed, as well as the nature of his crimes. Mr. Wells accepted responsibility for his crimes and assured the Board that he would not commit a crime again because he now takes his time, deliberates before he acts, and does not jump to conclusions. Mr. Wells stated that he does not believe he is a pedophile and that his crimes were committed because things just "got out of hand." The Board reviewed Mr. Wells's programming history and determined that Mr. Wells had neither applied for nor completed any programs during his incarceration. Mr. Wells explained this was because, at the time of his Transition Accountability Plan ("TAP") assessment in 2007, his counselor told him none of the recommended programs were offered at his compound. He stated that he was told not to apply to such programs because they would be assigned to him from Nashville once he became eligible.

Mr. Hakeem and Mr. Traughber both voted to deny parole. Their decision was primarily based on the seriousness of Mr. Wells's crimes and the likelihood that he would commit similar crimes upon release. Mr. Hakeem conveyed these reasons as follows:

Mr. Wells, to say the least, I would have liked to have seen you take more programming. . . . I hear what you say about programming that you can take and you can't take, but I don't see the effort on your part, as far as programming, that would give us the [mind set] or the belief that you're not the same person today that you were when you came in.
What we -- what we need to see is some effort on your part. See, you can tell us about how you deliberate now and all of these things, but we need more than that, in my mind. We need to be able to see that you've been through programming that gives you more thoughts, more ideas of how to deal with situations and so forth. And there are programs identified for persons who are incarcerated for the kind of thing that you're incarcerated for.
I cannot see myself voting today to grant you parole, sir. I do think that you have some ways to go, in regards to not being a threat to society. It's going to be my vote, sir, to decline you for seriousness of the offense, and my vote is to put you off for six years, sir. Mr. Traughber adopted Mr. Hakeem's decision and added the following:
Your sentence was imposed for a reason. Since your sentence does not expire until 2075, your sentences were -- ran consecutive, because [the] crimes you did [were] (inaudible) on vulnerable boys. You took advantage of them. You had control, and it didn't get out of hand. You set it in motion. And what you did resulted in very inappropriate sexual activities with these underage boys. You do not see that you have a problem, and you describe what you believe the kind of person that would do such behavior would be. You need to give that some more thought, because you never thought this would happen, you said, but you let yourself do it. And if you are not prepared to deal with it in some kind of fashion, this can happen again.
I would have to concur with Mr. Hakeem, to release you at this point would depreciate the seriousness of the crime or promote disrespect for the law. The other (inaudible) is, I consider you a high risk to possibly do this again to some kids if you are granted parole at this time. So my vote is to decline and see you in April of 2018.

Mr. Hakeem's and Mr. Traughber's decision was adopted by Ms. Bruce and Mr. Cole. Notice of the Board's decision was served on May 2, 2012. A Request for Appeal was filed on that same date. After receiving no response, Mr. Wells filed a petition for a writ of certiorari to the Chancery Court of Davidson County. In his petition, Mr. Wells argued that the Board exceeded its authority, followed unlawful procedure, and acted illegally, arbitrarily and capriciously. This was based on Mr. Wells's claims that:

Mr. Hakeem and Mr. Traughber improperly considered possible pending charges from Austin, Texas in reaching their decision.[1]
Mr. Hakeem and Mr. Traughber determined that Mr. Wells would likely commit another sex offense upon release, without the aid of a clinical psychologist as contemplated by section 40-28-116(a)(2) of the Tennessee Code.
Mr. Hakeem acted arbitrarily and capriciously by denying parole because he did not see any evidence that Mr. Wells attempted to take any programs while incarcerated.
The Board was an illegally and arbitrarily impaneled board because only two of the seven members met the qualifications set forth by section ...

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