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Stone v. Tennessee Board of Parole

Court of Appeals of Tennessee, Nashville

September 20, 2017

ERIC S. STONE
v.
TENNESSEE BOARD OF PAROLE

          Session April 13, 2017

         Appeal from the Chancery Court for Davidson County No. 15-1487-IV Robert E. Lee Davies, Senior Judge

         Petition for writ of certiorari; inmate appeals the trial court's order affirming the Tennessee Board of Parole's decision to rescind its earlier grant of parole and deny parole. We affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          David L. Raybin, Nashville, Tennessee, for the appellant, Eric Stone.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor General; Pamela S. Lorch, Senior Counsel, for the appellee, Tennessee Board of Parole.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         Eric Stone is an inmate at Bledsoe County Correctional Complex, serving a 25-year sentence for manufacturing methamphetamine. On March 16, 2015, Mr. Stone had a parole hearing; there were no letters sent in opposition to Mr. Stone being granted parole in advance of the hearing, and at the hearing, no one testified against his parole. On March 19 the Tennessee Board of Probation and Parole ("the Board") accepted the recommendation of the hearing officer and granted Mr. Stone parole, with an effective release date of June 8, 2015.

         After the decision to grant parole was made, the Board received letters from District Attorney General Lisa S. Zavogiannis and Warren County Sheriff Jackie Matheny stating they were unaware of the parole hearing and that they opposed his parole. General Zavogiannis' letter stated, inter alia, that she "adamantly opposed" parole based upon Mr. Stone's "lengthy history of criminal behavior" and his repeated parole violations. Sheriff Matheny's letter stated he opposed Mr. Stone's parole based on his "past history, " that the Warren County Sheriff's Department had expended substantial human and financial resources "making cases and arresting Mr. Stone, " and that he had agreed to serve 45 percent of his 25-year sentence under the terms of his plea agreement. On May 11, Mr. Stone was notified that, as a result of "new information received after [the parole] hearing, " the Board had voted to schedule a pre-parole rescission hearing on June 16.

         At the June 16 hearing, the hearing officer opened by stating that the hearing was being held "because the board received significant new information not presented at the [parole] hearing, " that the hearing officer wanted to "go over this information again with you to make sure that the board has everything they need to decide if your parole should be rescinded, " and that the hearing officer would be making a nonbinding recommendation to the Board in that regard. At the conclusion of the hearing, the officer summarized his recommendation:

Mr. Stone this isn't an easy decision for me. I -- don't know if I would have done the hearing -- your previous hearing different than your other hearing officer, or not, but that's neither here nor there.
You know, you -- we went -- we went through the whole thing. They granted you. They came and talked to your mom. A release plan was approved. And then they pulled it back due to these -- this opposition that we got.
I don't really think the opposition gave me more -- any more information than what I already had about you. I mean, we -- we knew every time you violated. We knew all your charges and everything else.
So that being said, I'm just going to leave it that the previous decision remains. The board will make the final decision on that though.

         By notice dated July 8, Mr. Stone was advised that the Board declined to grant him parole, based on a "substantial risk that the offender will not conform to the conditions of his release" and that "[r]elease from custody at this time would depreciate the seriousness of the crime . . . or promote disrespect of the law."[1] The notice advised Mr. Stone of his right to appeal the decision pursuant to Tennessee Code Annotated section 40-28-105(d)(11), by sending a request to the Appeals Unit of the Board within 45 days. Mr. Stone, through counsel, sent a letter to the Board on August 20, appealing the decision and asserting that the Board made "significant procedural errors" in rescinding his parole.

         By letter dated November 5, 2015, the Parole Administrator advised Mr. Stone that "your allegation of significant procedural errors by the Hearing Official(s) was not substantiated, " and his appeal had been denied; the notice further advised that "[t]his disposition is final and there is no further appeal recourse to you on this matter through the Tennessee Board of Parole." Notwithstanding the latter representation, the Parole Administrator notified Mr. Stone by letter dated December 3 that "a review of the record of [the June 15, 2015 parole grant hearing] warrants further review by the Board as to whether a new hearing will be held"; that his file had been sent to the Board for further review; and that he would be notified of the decision when the review was completed.

         On December 9, Mr. Stone filed a Petition for Writ of Certiorari in Davidson County Chancery Court, seeking review of the Board's decision to rescind his parole. On December 14, the Parole Administrator sent Mr. Stone a letter advising him that the Board had granted his request for an appeal hearing, and on January 21, 2016, Mr. Stone's counsel was notified that the appeal hearing had been set for February 26.

         On January 25, Mr. Stone filed a motion in the certiorari proceeding seeking a stay of the administrative proceeding; he asserted that the Board's initial decision to deny Mr. Stone's appeal and statement that no further relief was available from the Board were final decisions for purposes of challenging the rescission of his parole. The Board responded, opposing the motion and moving the court to stay the certiorari proceeding on the ground that the administrative proceeding was not yet complete. The court denied both motions on February 19, 2016.

         The appeal hearing was held on February 26. The hearing officer explained that the hearing had been granted because Mr. Stone had not been provided with copies of the March 25, 2015 letters from General Zavogiannis and Sheriff Matheny prior to the June 16, 2015 hearing and that the hearing would proceed first to determine whether the previous recommendation that Mr. Stone be granted parole should be rescinded, and, if so, to hold a new parole hearing.[2] The hearing officer then allowed Mr. Stone and his counsel to state "the reasons you feel like or you would ask the Board to - - to let that previous decision [to grant parole] remain." After Mr. Stone and his counsel responded, the hearing officer ruled:

The fact that the letters came in and the Board's procedure when --after a -- after the votes have been done in a particular case, if -- if things come to light, if new information becomes available, whether it be opposition letters or letters of support or new convictions or judgments, anything that triggers that, the Board will always come back and revisit the case. And that's what they did in this case, sir, because of the letters.
Now, I understand your position today, sir. I will be making a recommendation to the Board.
And, again, I have -- I have two options, Gentlemen: To let the previous decision remain or to rescind that decision -- or recommend to rescind it and go to a grant hearing. Now, these letters came in after the initial date. The Board was not aware of the letters at the time when they --when they initially voted. All right.
Based on that new information today, Gentlemen, my recommendation to the Board as to the rescission is going to be that they rescind that previous decision and that we go to a grant hearing today.
So, Gentlemen, what we will be doing now is going into a -- a -- a grant hearing on the sentence. And we'll go over some more facts in just a moment, and we'll let you give me some more information, if you want to, sir. We'll be going over your prior record.
And at the conclusion of this hearing, I will be making a recommendation whether or not to recommend to the Board that you be granted parole or declined parole.
The original decision, Mr. Raybin [counsel for Mr. Stone], was to parole, with an effective date in June. That date has passed. So, technically, to let the previous decision remain -- well, we have passed that date. So I am going to recommend to rescind that decision and go into a grant hearing.
All right. Mr. Stone, we are seeing you today on a 25-year sentence out of Warren County for Schedule II drug charges. ...

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