             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                     FILED
                                                      February 18, 1999

DONALD R. TURNER,                      )             Cecil Crowson, Jr.
                                       )            Appellate Court Clerk
       Petitioner/Appellant,           )
                                       )   Appeal No.
                                       )   01-A-01-9803-CH-00144
VS.                                    )
                                       )   Davidson Chancery
                                       )   No. 97-1837-III
TENNESSEE BOARD OF PAROLES,            )
                                       )
       Respondent/Appellee.            )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

            THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




DONALD R. TURNER
Brushy Mountain Correctional Complex
P. O. Box 2000
Wartburg, Tennessee 37887
       Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP
Attorney General and Reporter

JOHN R. MILES
c/o Attorney General & Reporter
425 5th Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Respondent/Appellee




                           AFFIRMED AND REMANDED




                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.


                                OPINION
             An inmate in the custody of the Department of Correction filed a

complaint which alleged that the Board of Paroles had acted arbitrarily and

fraudulently in denying him parole. The State filed a motion to dismiss for lack of

jurisdiction and a motion for summary judgment. The trial court granted both motions.

We affirm.



                                          I.



             Donald R. Turner pled guilty to aggravated sexual battery and he was

sentenced to eight years imprisonment on July 8, 1993. It appears that at the time he

was already serving a sixteen year sentence in a federal prison in California. The

court ordered that the sentence on the sexual battery conviction, as well as sentences

on four forgery charges he had been convicted of earlier, be served concurrently with

his federal sentence.



             On April 18, 1995, Mr. Turner was paroled from federal prison. He

traveled to Oregon, but was subsequently extradited to this state to complete his

Tennessee sentence. On March 11, 1997, Mr. Turner received a parole hearing,

which was conducted by Board of Paroles member Tom Biggs.                  Mr. Biggs

recommended that Mr. Turner not be granted parole, citing seriousness of offense as

a reason. Two other Board members concurred, and parole was denied on March 21,

1997.



              On April 7, 1997, the Board received a document entitled “The Truth Will

Set You Free,” in which Mr. Turner criticized the manner in which Mr. Biggs conducted

his parole hearing, asserted his innocence, challenged the legality of his extradition

from Oregon, and complained of the cost borne by taxpayers to keep him locked up.

The Board treated this document as a request for an administrative appeal, and


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denied the request by letter on April 17, 1997, because “[it] does not meet any of the

established criteria for granting a parole hearing.” Mr. Turner later stated that he had

prepared the document to send to the newspapers, but that his mother had mistakenly

sent it instead to the Board of Paroles.



              On April 15, 1997, Mr. Turner submitted a standard Board of Paroles

form titled “Request for Appeal Hearing,” with an attached letter, in which he asserted

that Mr. Biggs had failed to consider, or even to look at, evidence that Mr. Turner had

completed a course of therapy while in federal custody. The Board denied the

request, for the same reason cited in its letter of April 17.



              Mr. Turner filed a petition for writ of certiorari in the Chancery Court of

Davidson County on June 3, 1997. He claimed that “Seriousness of Offense” was so

frequently used by the Board that it had lost all meaning, and thus had become invalid

as a basis for denying parole. He also claimed that the Board had acted fraudulently

and arbitrarily by not considering all the information available at the parole hearing.

The Board filed motions for dismissal and for summary judgment.



              The trial court granted the motion to dismiss, finding that since the

petition had been filed more than 60 days after the Board’s decision of March 21,

1997, the court had been deprived of the jurisdiction required to grant a writ of

certiorari. See Tenn. Code Ann. § 27-9-102. The trial court also granted the Board’s

motion for summary judgment, finding that Mr. Turner had not raised any genuine

issues of material fact to refute the affidavit in the record. This appeal followed.



                                           II.



              Our courts have had many opportunities to rule upon the significance

of the statutory time limit found in Tenn. Code Ann. § 27-9-102 for filing a petition for


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a writ of certiorari. Failure to file within sixty days of the administrative action

complained of results in the trial court losing jurisdiction over the decision in dispute.

Fairhaven Corp. v. Tennessee Health Facilities Commission, 566 S.W.2d 885 (Tenn.

App. 1976); Thandiwe v. Traughber, 909 S.W.2d 802 (Tenn. App. 1994).



              The Board of Paroles permits the filing of an administrative appeal from

an adverse parole decision, if the appeal is filed within twenty-one days of that

decision. Rules of the Board of Paroles 1100-1-1-.07(3)(c). In an unpublished

opinion, this court has stated that the filing of a timely appeal with the Board of

Paroles tolls the statutory sixty day period, Phelps v. Tennessee Board of Paroles,

Appeal No. 01-A-01-9603-CH-00102 (filed Nashville November 19, 1997). But even

if this opinion could be validly cited as controlling authority, it appears to us self-

evident that an untimely appeal would have no such effect.



              In the present case, Mr. Turner asserts that he filed his “official”

administrative appeal with the Board on April 15, 1997, and admits that the letter the

Board received on April 7 was sent in error. It follows that there was no timely

administrative appeal, and therefore that the petition for writ of certiorari was itself

untimely.



              But even if we were to consider Mr. Turner’s letter of April 7, 1997 to

have constituted a valid and therefore timely appeal, it is clear that he still would not

be entitled to the writ he seeks. Under the common law writ of certiorari, the decisions

of the Parole Board may be reviewed only to determine whether the Board has

exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. Powell v.

Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. App. 1994). The intrinsic

correctness of the Board’s decision is not reviewable under the writ. Arnold v.

Tennessee Board of Paroles, 956 S.W.2d 478 (Tenn. 1997).




                                          -4-
                 Though he stated in his petition that the Board acted fraudulently and

arbitrarily, Mr. Turner has not alleged facts sufficient to support this conclusion. He

does allege one procedural irregularity: that the hearing officer refused to accept

evidence that Mr. Turner had completed a course of therapy while in federal custody.

But since the basis for declining parole was unrelated to the completion or non-

completion of therapy, the conduct complained of does not raise an inference of fraud

or illegality.



                 In support of its motion for summary judgment, the State offered the

affidavit of Vernise Thompson, Custodian of the Records of the Tennessee Board of

Paroles. Ms. Thompson’s affidavit indicated that the conduct of the hearing was

consistent with Mr. Turner’s rights with the Rules of the Board of Paroles. See Wells

v. Tennessee Board of Paroles, 909 S.W.2d 826 (Tenn. App. 1995). She reviewed

the audiotape of the one hour hearing and identified five witnesses (all relatives) who

appeared on Mr. Turner’s behalf, three of whom spoke in support of parole. She also

stated that Mr. Turner gave Mr. Biggs letters of recommendation and other

documents, which Mr. Biggs placed in Mr. Turner’s file, and that these documents

were more focused upon the petitioner’s convictions than upon other parole

considerations.



                 Mr. Turner offered no evidence to refute the affidavit of Ms. Thompson,

nor does he offer any such evidence on appeal.            Instead, he emphasizes the

unfairness of the decision, especially the use of Seriousness of Offense as a basis for

denying parole. However our Supreme Court has conclusively stated in Arnold v.

Tennessee Board of Paroles, 956 S.W.2d 478 (Tenn. 1997), that the Board must

consider the seriousness of the offense in its determinations, in order to comply with

Tenn. Code Ann. § 40-35-503(b), and that the denial of parole on the basis of this

factor does not raise any constitutional issues.




                                           -5-
              It appears to this court, as it appeared to the trial court, that Mr. Turner

is attacking the intrinsic correctness of the Board’s decision, but not alleging any

fundamental irregularity in the Board’s procedures that would require issuance of a

writ of certiorari. We therefore reject his appeal.



                                           III.



              The order of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




                                           _________________________________
                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




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