               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                        Assigned on Briefs September 2, 2016

CHRISTOPHER A. HAMILTON V. TENNESSEE BOARD OF PROBATION
                   AND PAROLE, ET AL.

               Appeal from the Chancery Court for Davidson County
                 No. 14-1837-IV   Russell T. Perkins, Chancellor


              No. M2016-00458-COA-R3-CV – Filed November 4, 2016


This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari,
claiming that the Tennessee Board of Probation and Parole acted arbitrarily and without
material evidence in denying his request for parole. The trial court granted the petition
but ultimately affirmed the denial of parole. The petitioner appeals. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, P.J., M.S., and KENNY ARMSTRONG, J., joined.

Christopher A. Hamilton, Mountain City, Tennessee, pro se.

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

                                       OPINION

                             I.     BACKGROUND

        Christopher A. Hamilton (“the Petitioner”) is an inmate housed in the Northeast
Correctional Complex in Mountain City, Tennessee, where he is currently serving a 40-
year sentence for two attempted first degree murder convictions relating to an incident of
gang violence in 1993. In addition to his current convictions, the Petitioner has an
extensive criminal history, including a third attempted first degree murder conviction and
a conviction for introducing contraband into a penal facility that have since expired. His
third attempted first degree murder charge arose out of his shooting of two police officers
while he was attempting to escape the Shelby County Jail in 1996. He has also been
charged with several misdemeanors, including disorderly conduct, escape, driving on a
suspended license, burglary, vandalism, and criminal trespass.

       The Petitioner has been considered for parole in recent years but was denied
release each time by the Tennessee Board of Probation and Parole (“the Board”) for
various reasons. In May 2012, he was denied parole on the ground that his “release from
custody at this time would depreciate the seriousness of the crime” for which he was
convicted pursuant to Tennessee Code Annotated section 40-35-503(b)(2). Another
hearing was held in May 2014, after which he was ordered to complete a psychological
evaluation before attending the next scheduled hearing in October 2014.

       At the hearing, Richard Montgomery, the Board Chairman, commended the
Petitioner for his participation in various classes while incarcerated. However, Chairman
Montgomery also noted Petitioner’s extensive criminal history and his 32 “write-ups”
while incarcerated, two of which occurred since May 2012. The Petitioner admitted he
had been cited for his alleged participation in a security threat group and possession of
marijuana since 2012. He admitted the circumstances surrounding the possession charge
but explained that he was never involved with a threat group while incarcerated. He
claimed that he was written up as a result of his status as a known gang member prior to
his incarceration. However, he accepted full responsibility for the two attempted first
degree murder convictions and expressed remorse for his actions. He cited an extensive
family support system and his desire to become a productive member of the community
as evidence of his ability to succeed once paroled.

       Following the hearing, Chairman Montgomery recommended a release date of
August 3, 2015, following the Petitioner’s completion of the Pro-Social Life Skills
program. The Petitioner later received notice that the remainder of the Board voted to
deny release on the ground that “[t]here is a substantial risk that [he] will not conform to
the conditions of the release program” pursuant to Tennessee Code Annotated section 40-
35-503(b)(1). He was also ordered to complete a Therapeutic Community program.

        The Petitioner appealed the Board’s decision and later filed a petition for writ of
certiorari in the Davidson County Chancery Court. The Board denied the appeal, but the
trial court granted the petition for writ of certiorari without objection from the State.

        The Petitioner argued that the Board’s decision was arbitrary and without basis in
fact or evidence of record that he posed a substantial risk of not conforming to his release
conditions. In support of his assertion, he cited his good behavior since the May 2012
hearing, strong family support and a letter of support from the Tennessee Department of
Correction’s Unit Manager, and the many programs he completed while incarcerated. He
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claimed that the denial of parole evidenced a significant procedural error when the record
was devoid of evidence supporting the decision and when the Board did not cite his
inability to conform as a reason for his denial of parole in May 2012. The State
responded that the Board was not limited to the criteria previously considered in denying
parole and further claimed that the Board did not act arbitrarily in reaching its current
decision as evidenced by the Petitioner’s criminal history and pattern of recidivism. The
trial court affirmed the Board’s decision. This appeal followed.

                                     II.    ISSUE

       The sole issue on appeal is whether the trial court properly affirmed the Board’s
decision.

                            III.   STANDARD OF REVIEW

       “In considering parole for prisoners, [the Board] is considered to be exercising a
judicial function which is not reviewable if done in accordance with the law.” Robinson
v. Traughber, 13 S.W.3d 361, 363 (Tenn. Ct. App. 1999) (citing Tenn. Code. Ann. § 40-
28-115(c)). “However, a limited form of review is available under the writ of certiorari
to determine whether the Board has exceeded its jurisdiction, or has acted illegally,
fraudulently or arbitrarily.” Id. (citing Powell v. Parole Eligibility Review Bd., 879
S.W.2d 871, 873 (Tenn. Ct. App. 1994)). Furthermore,

      Review under a common-law writ of certiorari does not extend to a
      redetermination of the facts found by the board or agency whose decision is
      being reviewed. The courts may not (1) inquire into the intrinsic
      correctness of the decision, (2) reweigh the evidence, or (3) substitute their
      judgment for that of the board or agency. However, they may review the
      record solely to determine whether it contains any material evidence to
      support the decision because a decision without evidentiary support is an
      arbitrary one.

Leonard Plating Co. v. Metro. Gov’t of Nashville and Davidson Cnty., 213 S.W.3d 898,
903-04 (Tenn. Ct. App. 2006) (internal citations and footnotes omitted); see also Flowers
v. Traughber, 910 S.W.2d 468, 470 (Tenn. Ct. App. 1995) (“Not the correctness of the
decision, but only the manner in which it was reached is reviewable.”). “This limited
standard of review applies to both the trial court and to this [c]ourt.” Abbington Center,
LLC v. Town of Collierville, 393 S.W.3d 170, 175-76 (Tenn. Ct. App. 2012).




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                                 IV.    DISCUSSION

       The Petitioner argues that the Board’s decision was arbitrary and without basis in
fact or evidence of record that he actually posed a substantial risk of not conforming to
his release conditions. He provides that the Board did not rely upon this ground in
denying his parole in May 2012 and that no programs were recommended or comments
made to inform him that he posed such a substantial risk. He notes that the record is
devoid of any behavior that would support the Board’s decision. To the contrary, he
claims that the record contains overwhelming evidence of his compliance with the rules
and regulations imposed upon him while incarcerated. The State responds that the trial
court did not err in affirming the Board’s denial of parole.

       “Release on parole is a privilege and not a right.” Tenn. Code Ann. § 40-35-
503(b). Furthermore, the statute expressly requires the Board to consider the inmate’s
substantial risk that he or she may not conform to the conditions of the release program.
Tenn. Code Ann. § 40-35-503(b)(2). Consideration of this ground was not only relevant
but necessary in every parole hearing conducted according to the law. Having reviewed
the record, which includes the Petitioner’s criminal history and documents his
continuation of criminal behavior once incarcerated, we hold that the Board did not act
arbitrarily or without material evidence in reaching its decision.


                                V.     CONCLUSION

       The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
Christopher A. Hamilton.


                                                _________________________________
                                                JOHN W. McCLARTY, JUDGE




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