JOSEPH BRENNAN, ET AL.
BOARD OF PAROLE FOR THE STATE OF TENNESSEE
Session October 5, 2016
by Permission from the Court of Appeals Chancery Court for
Davidson County No. 131171II Carol L. McCoy, Chancellor
Tennessee Board of Parole denied parole to a prisoner who was
serving a twenty-year sentence for convictions of attempted
rape of a child. The Board determined that the prisoner's
release from custody would depreciate the seriousness of the
crime for which he was convicted or promote disrespect for
the law. The prisoner filed a petition of certiorari
challenging the Board's decision. The trial court
affirmed the Board's decision, and the prisoner appealed.
The Court of Appeals did not review the issues raised on
appeal. Instead, it calculated the date the prisoner should
have been considered for parole and concluded that the Board
acted arbitrarily by conducting a parole hearing prematurely.
The Court of Appeals vacated and remanded with instructions
for the Board to give the prisoner an immediate parole
hearing. We hold that the Court of Appeals had no authority
to calculate the date the prisoner could be considered for
parole and did so incorrectly. The Tennessee Department of
Correction has the statutory authority to determine the date
a prisoner may be considered for parole by the Board. On
review, we affirm the trial court's decision.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; and Jennifer
L. Brenner, Senior Counsel, for the appellant, Tennessee
Board of Parole.
Alex Little (on appeal) and Mark C. Scruggs (at trial),
Nashville, Tennessee, for the appellee, Joseph Brennan.
G. Lee, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Holly
Kirby, JJ., joined. Roger A. Page, J., not participating.
G. LEE, JUSTICE
January 2009, Joseph Brennan pleaded guilty to two counts of
attempted rape of a child. He was sentenced to serve ten years,
consecutively, for each count of attempted rape for an
effective sentence of twenty years, with a release
eligibility of thirty percent. Mr. Brennan began serving his
sentence on April 3, 2009.
March 26, 2013, a Tennessee Board of Parole hearing officer
conducted a parole hearing for Mr. Brennan based on a release
eligibility date-the date a prisoner is eligible to be
considered for parole-of June 14, 2013. The hearing officer
received written statements and testimony from Mr. Brennan,
the victim, family members, friends, and the victim's
psychologist. The hearing officer recommended that parole be
denied. The Board concurred, determining that "[t]he
release from custody at this time would depreciate the
seriousness of the crime of which the offender stands
convicted or promote disrespect of the law, " and
deferred the next parole hearing until 2018. Mr. Brennan,
unsuccessful in his appellate remedies before the Board,
filed a petition of certiorari based on Tennessee Code
Annotated sections 27-9-101 and -102 in Davidson County
Chancery Court. Mr. Brennan asserted, among other things,
that the Board's decision was illegal, contrary to
established law, and arbitrary and capricious.
trial court dismissed Mr. Brennan's petition, finding
that the Board's decision to deny parole due to the
seriousness of the offense was not unfair, arbitrary, or
capricious. In its ruling, the trial court referenced the
written statements and testimony regarding Mr. Brennan's
work history, educational background, prison disciplinary
record, and completion of a sexual offender treatment
program. The trial court considered all issues raised by Mr.
Brennan and concluded that it could not inquire into the
intrinsic correctness of the Board's decision to deny
parole. Mr. Brennan appealed.
Court of Appeals did not consider the issues raised by Mr.
Brennan. Instead, the Court of Appeals determined Mr.
Brennan's release eligibility date was April 3, 2015,
which was six years from the date he began serving his
sentence with no deduction for sentence credits. The Court of
Appeals reasoned that Mr. Brennan had served only twenty
percent of his sentence by the 2013 parole hearing, and the
Board should have waited to consider his suitability for
parole until after he had served thirty percent of his
sentence. Based on its determination that Mr. Brennan's
hearing should have been in April 2015, the Court of Appeals
remanded the case to the trial court with instructions ...