                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               September 22, 2015 Session

JOSEPH BRENNAN, ET AL. v. BOARD OF PAROLE FOR THE STATE OF
                         TENNESSEE

                Appeal from the Chancery Court for Davidson County
                    No. 131171II Carol L. McCoy, Chancellor

                          ________________________________

     No. M2014-01591-COA-R3-CV – Filed October 21, 2015
                    _________________________________

        This appeal arises from a decision by the Tennessee Board of Parole (the “Board”) to
deny an inmate parole after his initial parole review hearing. In 2009, the inmate pled guilty
to two counts of attempted rape of a child and two counts of incest and was sentenced to 20
years in prison with parole eligibility after serving 30% of his sentence. Apparently because
of his good behavior, the Board considered the inmate for release on parole after he had
served only 20% of his sentence. Without further explanation, the Board denied the inmate
parole based solely on its finding 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 review of his parole application for five years. The
inmate filed a petition for common-law writ of certiorari, arguing, among other things, that
the Board acted arbitrarily in denying him parole based solely on the seriousness of the crime
without providing any support or explanation for its decision. The trial court affirmed the
Board’s decision and this appeal followed. On appeal, we conclude that the Board acted
arbitrarily in deferring further review of the inmate’s parole application beyond the time
when he would have otherwise been parole eligible—at 30% of his 20-year sentence.
Because the inmate has already served more than 30% of his 20-year sentence, we hold that
he should immediately be granted a new parole hearing. We therefore vacate the judgment of
the trial court and remand this case for further proceedings consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Vacated
                                   and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR.,
P.J., M.S., and KENNY ARMSTRONG, J., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Joseph Brennan.
Jim Todd, Nashville, Tennessee, for the appellant, Jessy Brennan.

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

                                               OPINION

                           I. BACKGROUND AND PROCEDURAL HISTORY

       Joseph Brennan is an inmate in the custody of the Tennessee Department of
Correction. In 2009, Mr. Brennan pled guilty to two counts of attempted rape of a child and
two counts of incest. He was sentenced to 20 years in prison with parole eligibility after
serving 30% of his sentence for the two convictions for attempted rape of a child. His
sentences for the two convictions for incest have expired. The victim of Mr. Brennan’s
crimes was his adopted sister.

        A parole hearing for Mr. Brennan was held on March 26, 2013 before a hearing
officer appointed by the Board.1 Eleven individuals, including the victim, appeared in
support of Mr. Brennan’s release at the hearing and were allowed to testify on his behalf.
The hearing officer also reviewed letters from Mr. Brennan’s friends and family supporting
his release and the results of a psychiatric evaluation that concluded that Mr. Brennan “does
not pose the likelihood of committing sexual assaults upon his release from confinement.”
No opposing testimony was presented. At the conclusion of the hearing, the hearing officer
stated that he would recommend to the Board that Mr. Brennan be denied parole due to the
seriousness of his offense and that further review of his parole application should be deferred
for five years. No other explanation or basis for the decision was given by the hearing
officer.

        On April 3, 2013, the Board formally notified Mr. Brennan that it had adopted the
recommendations of its hearing officer and denied his application for parole. In support of
its decision, the Board stated in its formal notice that “[t]he release from custody at this time
would depreciate the seriousness of the crime of which the offender stands convicted or

1
 We note that Mr. Brennan had not served 30% of his 20-year sentence on March 26, 2013. While the record
does not indicate why he was granted a parole hearing at that time, counsel for the Board represented to this
Court during oral argument that Mr. Brennan was considered for release after serving only 20% of his sentence
as a result of good behavior while incarcerated.

                                                     2
promote disrespect of the law.” The Board also informed Mr. Brennan that he would not be
considered for parole again until March 2018.

        After exhausting his remedies before the full Board,2 Mr. Brennan filed a petition for
a common-law writ of certiorari in the Chancery Court for Davidson County on August 16,
2013. Among other things, Mr. Brennan argued that the Board’s decision to deny him parole
based solely on the seriousness of his crime was arbitrary and capricious because there was
no evidence in the record to establish that his particular case was more serious than any other
case involving the same offense. Pursuant to the issuance of the writ of certiorari, Mr.
Brennan’s certified parole hearing record was filed in the trial court. Arguments on the
petition for certiorari were heard by the trial court on June 5, 2014. On July 17, 2014, the
trial court entered a final order affirming the Board’s decision. The trial court concluded that
Mr. Brennan failed to show that the Board’s decision-making process was arbitrary or illegal
because “seriousness of the offense” is a valid ground for denying parole under Tennessee
Code Annotated section 40-35-503(b)(2) and because the record reflects that the Board’s
officer considered the testimony presented by Mr. Brennan’s witnesses at his parole hearing.
Mr. Brennan filed a timely notice of appeal to this Court.3

                                                  II. ISSUE

          Mr. Brennan raises the following primary issue on appeal, as we have restated it:

          1. Whether the trial court erred in concluding that the Board’s denial of Mr.
             Brennan’s parole application was not arbitrary or illegal.

                                      III. STANDARD OF REVIEW

       Prisoners do not have an absolute right to be released from prison prior to the
expiration of their sentences. Hopkins v. Tenn. Bd. of Paroles & Prob., 60 S.W.3d 79, 82
(Tenn. Ct. App. 2001). Thus, parole is a privilege and not a right. Tenn. Code Ann. § 40-35-
503(b) (2014). “Whether a prisoner should be granted parole is a decision entrusted to the
Board, not the courts.” Hopkins, 60 S.W.3d at 82 (citations omitted).



2
    The Board denied Mr. Brennan’s request for an appeal on June 28, 2013.
3
 We note that the victim of Mr. Brennan’s crimes, his adopted sister, also filed a notice of appeal in this case.
Because the issues she presented for appeal are pretermitted by our decision, we will not discuss them in this
opinion.

                                                       3
        “The common-law writ of certiorari serves as the proper procedural vehicle through
which prisoners may seek review of decisions by prison disciplinary boards, parole eligibility
review boards, and other similar administrative tribunals.” Settle v. Tenn. Dept. of Corr., 276
S.W.3d 420, 425 (Tenn. Ct. App. 2008). Review under a common-law writ of certiorari is
limited to an examination of whether the lower board exceeded its jurisdiction or acted
illegally, fraudulently, or arbitrarily. Id. This Court, like the trial court, does not review the
correctness of the Board’s decision, but only considers the manner in which the decision was
reached. Id. Consequently, our scope of review under a common-law writ of certiorari is
very narrow.

                                             IV. DISCUSSION

       Mr. Brennan contends that the Board acted illegally and arbitrarily in denying him
parole based solely on the seriousness of the offense when all of the evidence presented at his
parole hearing supported his release and the Board gave no other reason for its decision. He
points out that, in enacting the statutory scheme that governs sentencing in Tennessee, the
General Assembly determined that individuals convicted of the offenses for which he was
convicted are eligible for parole after serving a percentage of their sentence.4 Accordingly,
he argues that the Board should be required to provide some support or explanation to
indicate that it considered his specific conduct and not just the nature of the statutory offense
for which he was convicted.

        The Board counters that Tennessee Code Annotated section 40-35-503(b)(2) expressly
states that it “shall” deny parole where it finds that “[t]he release from custody at the time
would depreciate the seriousness of the crime of which the defendant stands convicted or
promote disrespect for the law.” Additionally, the Board points out that the courts have held
repeatedly that the Board’s consideration of the seriousness of an inmate’s offense in making
a parole decision does not implicate any constitutional right. See Arnold v. Tenn. Bd. of
Paroles, 956 S.W.2d 478, 483 (Tenn. 1997) (citing Kell v. United States Parole Comm’n, 26
F.3d 1016, 1020 (10th Cir. 1994)); Hopkins, 60 S.W.3d at 83; Robinson v. Traughber, 13
S.W.3d 361, 363 (Tenn. Ct. App. 1999). Thus, the Board emphasizes that release on parole
is a privilege and not a right, see Tenn. Code Ann. § 40-28-117(a); Tenn. Code Ann. § 40-35-
503(b), and argues that the seriousness of the inmate’s offense is a proper basis for denying
parole even if it is the only basis for denial.



4
 Individuals convicted of certain other offenses are not eligible for parole. Tennessee Code Annotated section
40-35-501(i)(2) provides a list of fifteen offenses for which there is no release eligibility date. Individuals
committing one of those enumerated offenses on or after July 1, 1995 must serve 100% of the sentence
imposed by the court. Tenn. Code Ann. § 40-35-501(i)(1).
                                                      4
        Past cases that have upheld denial of parole based on the seriousness of the offense
have concluded that the Board considered facts and circumstances specific to the individual
inmate and not just the nature of the offense of which the inmate was convicted. See Arnold,
956 S.W.2d at 482-83 (noting that the Board also considered the number of victims and the
risk to re-offend); Harris v. Tenn. Bd. of Prob. & Parole, No. M2009-01904-COA-R3-CV,
2010 WL 3219491, at *3-4 (Tenn. Ct. App. Aug. 13, 2010) (noting the inmate’s prior
conviction for parole violation and that the Board’s decision was also based on “a substantial
risk that he would not conform to the conditions of his release”); Hopkins, 60 S.W.3d at 83
(noting the inmate’s disciplinary infractions and positive drug screen during his incarceration
and that the Board’s decision was also based on the adverse effect on institutional discipline);
Robinson, 13 S.W.3d at 363-64 (noting that the Board heard testimony from two police
officers related to the inmate’s specific offenses). While we cannot discern from this record
that the Board considered facts and circumstances specific to the individual inmate and not
just the nature of the offense of which the inmate was convicted, it is not necessary that we
address that issue in this case.

       Mr. Brennan was sentenced to 20 years in prison with release eligibility after serving
30% of his sentence on April 3, 2009. Accordingly, his original release eligibility date was
April 3, 2015. Apparently because of his good behavior, the Board granted Mr. Brennan an
early parole hearing in March 2013 to determine whether he should be released after serving
only 20% of his sentence. Following the March 2013 hearing, the Board denied Mr. Brennan
parole and deferred further parole consideration until March 2018. By March 2018, Mr.
Brennan will have served approximately 45% of his 20-year sentence. In our view, the
Board’s decision to grant Mr. Brennan an early parole hearing and then defer his next parole
hearing beyond the time that he should have otherwise received a parole hearing was
arbitrary.

        The whole concept of parole is based on the theory that people can change over time
and that even a convicted felon may be able to live in accordance with the law after serving a
percentage of his or her sentence. Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d 429, 434
(Tenn. Ct. App. 2003). Thus, the Board’s determination that Mr. Brennan would not be a
suitable candidate for parole after serving 20% of his sentence is not conclusive evidence that
he would not be a suitable candidate for parole after serving 30% of his sentence. Under the
terms of his sentence, Mr. Brennan’s release eligibility date was April 3, 2015. The Board
was required to conduct a hearing within a reasonable time prior to that date to determine his
fitness for parole. See Tenn. Code Ann. § 40-35-503(d)(1). The Board cannot deprive Mr.
Brennan of a parole hearing that he otherwise would have been eligible to receive by
determining that he is not ready to be released two years prior to that time. Thus, the Board
should have considered his fitness for release within a reasonable time prior to his original
eligibility date on April 3, 2015. Accordingly, because the time when Mr. Brennan should
                                              5
have received a parole hearing has already passed,5 we hold that he should be granted a new
hearing immediately on remand.

       In light of our disposition of the foregoing issues in this case, the remaining issues
raised by the parties have been pretermitted and we do not find it necessary to discuss them.

                                         V. CONCLUSION

       In light of the foregoing, we vacate the order of the trial court affirming the Board’s
decision and remand this case to the trial court with instructions that the case be further
remanded to the Board for an immediate hearing on Mr. Brennan’s application for parole.
The costs of this appeal are taxed to the appellee, the Tennessee Board of Parole.


                                                      _________________________________
                                                      ARNOLD B. GOLDIN, JUDGE




5
  Based on 30% of his 20-year sentence, Mr. Brennan should have been granted a parole hearing within a
reasonable time prior to April 3, 2015.
                                                  6
