                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs April 1, 2003

       TONY BALDWIN v. TENNESSEE BOARD OF PAROLES, ET AL.

                     Appeal from the Chancery Court for Davidson County
                      No. 01-2533-I   Irvin H. Kilcrease, Jr., Chancellor



                    No. M2002-01428-COA-R3-CV - Filed August 15, 2003


A prisoner in the custody of the Tennessee Department of Correction became eligible for parole after
serving over twenty years of his sentence. The Parole Board conducted a hearing, and voted to deny
him parole. They also decided to defer further parole consideration for another twenty years. The
prisoner filed a Petition for Writ of Certiorari, which the trial court denied. We reverse the deferral,
because we find that the decision to defer further parole consideration for so many years constitutes
an arbitrary exercise of the Parole Board’s authority.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Tony Baldwin, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A.
Hudson, Senior Counsel, for the State of Tennessee.

                                              OPINION

                                       I. A PAROLE HEARING

        Tony Renee Baldwin was convicted of first degree murder in January of 1979, and was
sentenced to life imprisonment. At the time of his conviction, a prisoner sentenced to life became
eligible for parole after serving thirty years. The application of sentence reduction credits had the
potential to accelerate his parole eligibility to a still earlier date.

       Mr. Baldwin became eligible for parole in 2001. The Parole Board conducted a hearing on
January 31 of that year. Three members of the Board initialed the document declining to release him
on parole, checking off the seriousness of his offense as their reason. Their “Notice of Board
Action” also indicated that Mr. Baldwin’s next parole hearing would not take place until February,
2021. No reason was given for deferring the next hearing for so long a period of time.

        The prisoner filed an administrative appeal, in which he cited several alleged procedural
errors in the conduct of the original hearing. His appeal was denied. On August 13, 2001, he filed
a Petition for Writ of Certiorari in the Chancery Court of Davidson County.

       Mr. Baldwin’s Petition alleged that the Board had violated the ex post facto clause by not
granting him the annual review hearings that were mandated by the rules of the Board of Paroles at
the time of his sentencing. He also claimed that it was arbitrary for the Board to use “Seriousness
of Offense” as a reason for denying him parole, especially in view of his alleged rehabilitation and
good institutional record. The Board filed a Motion to Dismiss.

       The Chancery Court agreed with the Board. The court cited California Dept. of Corrections
v. Morales, 514 U.S. 499 (1995) as authority for the proposition that “a change in the timing of
parole hearings to the possible detriment of a prisoner sentenced is not a violation of the Ex Post
Facto Clause.” The court also found that Mr. Baldwin did not set forth any set of facts showing that
the Board had acted illegally, fraudulent or arbitrarily. The Motion to Dismiss was accordingly
granted. This appeal followed.

                             II. THE SERIOUSNESS OF THE OFFENSE

         The Tennessee Legislature has specifically required the Board of Paroles not to grant parole
to a prisoner if 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 of the law.” Tenn. Code
Ann. § 40-35-503(b)(2). See also Rules of the Board of Paroles No. 1100-1-1-.06(1)(a) and (3)(b).

         This court has previously ruled on several challenges to the above statute. The petitioners
in those cases have argued that since the seriousness of the crime has already been factored into their
sentence, declining parole on the same basis amounts to double jeopardy. Dyer v. Tennessee Bd. of
Paroles, No. M1999-00787-COA-R3-CV (Tenn. Ct. App. April 23, 2001); Mosley v. Tennessee
Board of Paroles, No. 01-A-01-9604-CH-00162 (Tenn. Ct. App. Nov. 1, 1996).

         Although some courts in other jurisdictions have agreed with that argument, we have
rejected it, and so has the Tennessee Supreme Court. In Arnold v. Tennessee Bd. of Paroles, 956
S.W.2d 478, 482 (Tenn. 1997), our Supreme Court held that when the Parole Board declines parole
because of the seriousness of the offense, it is not imposing another punishment for the same crime,
but simply perpetuating a validly imposed sentence. Thus, Mr. Baldwin’s argument as to the
grounds for denying him parole is without merit.

                              III. THE EX POST FACTO ARGUMENT




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        Ex post facto laws are forbidden under both the U.S. and Tennessee Constitutions. U.S.
Const., art.1, §§ 9 and 10; Tenn. Const. art. I, sec. 11. The Tennessee Supreme Court has defined
one type of ex post facto law as that which “changes punishment or inflicts a greater punishment
than the law annexed to the crime when committed.” Miller v. State, 584 S.W.2d 758, 761 (Tenn.
1979).

        Mr. Baldwin is arguing that the rules of the Board of Paroles in effect at the time of his
sentencing are annexed to his sentence, and that any change in those rules amounts to an ex post
facto violation as to him. Prior cases of this court have made it clear that most penal regulations are
not annexed to a prisoner’s sentence, and thus that changes in those regulations do not normally
implicate the ex post facto prohibition. These include rule changes involving the classification of
prisoners, Jaami v. Conley, 958 S.W.2d 123 (Tenn. Ct. App. 1997) and disciplinary procedures,
Smith v. Campbell, 995 S.W.2d 116 (Tenn. Ct. App. 1999).

        Changes to the Rules of the Board of Paroles are more problematic, because in some cases
they can directly affect the actual term of confinement that a prisoner must serve. Kaylor v. Bradley,
912 S.W.2d 728 (Tenn. Ct. App. 1995). But the procedures the Board must follow (as opposed to
the standards for granting parole) are not usually considered a part of law annexed to the crime.
When prisoners claim that changes to those procedures constitute an ex post facto violation,
“[d]eterminations of these claims are usually made on a case-by-case basis. The outcome depends
on the significance of the right involved and the significance of the impairment. In close questions,
the decisions often times hinge on such subtle factors as the court’s sense of fair play and justice.”
912 S.W.2d at 732.

                                      A. THE MORALES CASE

        While there are many similarities between California Dept. of Corrections v. Morales, supra,
and the case before us, the differences are significant enough to prevent us from adopting the
reasoning of the trial court and automatically extending the result in the California case to Mr.
Baldwin’s situation. In the Morales case, the appellant received a sentence of fifteen years to life
for the 1980 murder of his wife. The law in existence at the time of his sentencing required the
California Parole Board to conduct annual reviews of his suitability for early release, once he became
eligible for parole.

         The California legislature amended the law in 1981, to permit the Board to defer subsequent
parole hearings for up to three years for certain classes of offenders, including murderers. Mr.
Morales became eligible for parole in 1990. After a hearing, the Board declined to grant him parole,
and scheduled his next hearing for three years subsequent, pursuant to the amended statute. Morales
filed a habeas corpus petition in Federal District Court, arguing that the application of the amended
statute to him was a violation of the ex post facto clause.

        The Federal District Court denied his petition, but the U.S. Court of Appeals for the Ninth
Circuit reversed. The Unites States Supreme Court took certiorari to determine if the challenged


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statute retroactively increased “the quantum of punishment” imposed on the offender. The Court’s
determination that it did not resulted from a close examination of the statute, and of its likely effect
on the prisoner’s chance for parole.

        The Court ruled that a change in parole procedures did not automatically implicate ex post
facto concerns, but its opinion leaves the possibility open that changes of a sufficient magnitude to
lengthen a prisoner’s expected term of actual confinement could constitute an ex post facto violation.
The Court noted that the focus of the California amendment was “to relieve the [Board] from the
costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no
reasonable chance of being released.” The Court noted also that the Board’s authority under the
amendment was carefully tailored to that end, and that it was required to conduct a full hearing,
review all relevant facts, and state the bases of its finding. In light of these considerations, the Court
concluded that the legislation at issue “creates only the most speculative and attenuated risk of
increasing the measure of punishment attached to the covered crimes,” and that it did not therefore
violate the ex post facto clause.

                                       B. THE PRESENT CASE

        When Mr. Baldwin was sentenced, the rules of the Tennessee Parole Board provided that if
a prisoner was denied parole, “a future hearing date shall be specified to be within one year of the
current hearing.” In 1992, that rule was amended so that if parole was denied, “a future hearing date
shall be specified.” It appears to us that the amendment is a procedural change. It is not facially
unconstitutional, and thus Mr. Baldwin is not entitled to the annual parole hearings that were
mandated by the earlier version of the rule.

        It can be argued, however, that the amended rule was applied to Mr. Baldwin in an
unconstitutional way, and that deferring further parole consideration for twenty years does amount
to an ex post facto violation. But it is a fundamental principle that courts should decide
constitutional issues only when it is absolutely necessary to do so. State v. Taylor, 70 S.W.3d 717
(Tenn. 2002). Since this case can be decided by reference to the standards underlying the Writ of
Certiorari, we do not believe it necessary to reach the constitutional question.

                                   IV. AN ARBITRARY DECISION

        The grant of parole is a discretionary matter, vested exclusively in the Board of Paroles.
Doyle v. Hampton, 340 S.W.2d 891 (Tenn. 1960). Decisions of the Board are not reviewable by the
courts, if done in accordance with the law. Tenn. Code Ann. § 40-28-115(c); Flowers v. Traughber,
910 S.W.2d 468 (Tenn. Crim. App. 1995). The question of whether such decisions are lawful is
subject to limited review, however, under the common law Writ of Certioriari.

        As we have stated on many occasions, the scope of review under the writ is limited to an
examination of whether the Board exceeded its jurisdiction, or acted illegally, fraudulently or
arbitrarily. Turner v. Tennessee Board of Paroles, 993 S.W.2d 78 (Tenn. Ct. App. 1999); Powell


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v. Parole Eligibility Review Board, 879 S.W.2d 871 (Tenn. Ct. App. 1994); Yokley v. State, 632
S.W.2d 123 (Tenn. Ct. App. 1981).

        Both versions of the rule at issue state that “if the case is continued or parole denied, a future
hearing date shall be specified,” with the one year requirement deleted from the amended rule. The
state’s argument implies that the amended rule grants the Board absolute and unbridled discretion
over the timing of subsequent hearings. It appears to us, however, that the statutes relating to the
Board of Paroles do not support this interpretation.

        Tenn. Code Ann. § 40-28-116(a)(1) establishes the right of the Board of Paroles over prisoner
release: “The board has the power to cause to be released on parole any person who has been
declared eligible for parole consideration by the board.”1 Further, “[i]t is also the duty of members
of the board to study the prisoners confined in the prisons, workhouses and jails when they are
eligible for parole consideration so as to determine their ultimate fitness to be paroled.” Tenn. Code
Ann. § 40-28-118(d).

         The grounds for parole are set out in Tenn. Code Ann. § 40-28-117, which reads in part,

                 (a) Parole being a privilege and not a right, no prisoner shall be released on
         parole merely as a reward for good conduct or efficient performance of duties
         assigned in prison, but only if the board is of the opinion that there is reasonable
         probability that such prisoner, if released, will live and remain at liberty without
         violating the law, and that the prisoner's release is not incompatible with the welfare
         of society . . . .

        Tenn. Code Ann. § 40-35-503(b)(2) and (3) set out grounds for declining parole because of
the detrimental effects of releasing the prisoner “at the time.” The thrust of these statutes, and indeed
of the whole concept of parole, is that over time people can change, and that even a convicted felon
may be able to live in accordance with the law, if he or she is released before the end of his sentence.
Further, the determination of when a prisoner is ready to be released is not an easy one, and the
provision for periodic hearings gives the Board the opportunity to re-evaluate its own decisions.
Finally, Mr. Baldwin implies that private conversations with the victims of his crime, conducted
before his parole hearing, had a significant impact on the Board’s decision. We venture to think it
possible that even these victims may experience a change of heart at some point, and not insist on
his continued incarceration.

       We note that the seven Board members are appointed for staggered six year terms, after
which they are eligible for (but not necessarily entitled to) reappointment. Tenn. Code Ann. § 40-28-
103(c). Thus the effect of the twenty-year deferral is not only to preclude reconsideration of Mr.


         1
           In actua lity, the calculation of initial paro le eligibility is a function of the D epartment of Co rrection. See
Board of Paroles Rule No. 1100-1-1-.07(1)(b). Howe ver, the Bo ard is empo wered to schedule subsequent hearings in
acco rdance with its rules.

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Baldwin’s case by the members of the panel that declined to parole him, or by the other members
of the current Board, but also to prevent the members of the Board that may be sitting in the years
2005, 2010, 2015 or 2020 from even making an initial consideration of whether Mr. Baldwin could
be a suitable candidate for parole. Under the panel’s ruling, it is possible that the entire membership
of the Board can completely turn over more than once before his case comes up for decision once
again.

        It appears to us that the Board’s decision constitutes an arbitrary withdrawal of the power to
parole from future Board members, and that a twenty-year deferral would undermine the very
provisions of the parole statutes that empower the Board to grant parole. In addition, the essential
effect of the Board’s action is to change Mr. Baldwin’s sentence to life without parole, contrary to
what the Legislature intended. We think Mr. Baldwin has stated a cause of action which entitles him
to the writ of certiorari. Therefore, we reverse the chancellor’s order dismissing his claim that the
Board acted arbitrarily in deferring the next consideration of parole for him for twenty years.

                                                  V.

       The order of the trial court is reversed. Remand this cause to the Chancery Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellee, the Tennessee Board of Paroles.




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




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