Miller v. Board of Paroles

• Court: Court of Appeals of Tennessee
• Decided: March 24, 1999
• Docket: 01A01-9804-CH-00177
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED March 24, 1999

JAMES R. MILLER, ) Cecil Crowson, Jr. ) Appellate Court Clerk Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9804-CH-00177 VS. ) ) Davidson Chancery ) No. 97-3423-III TENNESSEE BOARD OF PAROLES, ) ) Respondent/Appellee. )

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

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

JAMES R. MILLER, #135058 South Central Correctional Facility P. O. Box 279 Clifton, Tennessee 38425-0279 Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP Attorney General & Reporter

PATRICIA C. KUSSMANN Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL PRESIDING JUDGE, M.S.

CONCUR: KOCH, J. CAIN, J. MEMORANDUM OPINION1

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

for writ of certiorari, claiming that the Board of Paroles acted unconstitutionally in

refusing to parole him. The chancery court dismissed the petition. We affirm the

chancery court.

I.

On May 11, 1990, James R. Miller pled guilty to charges of rape, incest

and aggravated rape, and was sentenced to eighteen years imprisonment. The victim

was his daughter, who was less than thirteen years of age at the time. Mr. Miller first

became eligible for parole consideration in 1993. The Parole Board declined to parole

him because of the seriousness of his offenses and the need to complete a sex

offender treatment program. After the next parole hearing in 1995, he was again

denied parole. The Board cited as their reasons the seriousness of the offense and

negative disciplinary reports. On March 12, 1997, Mr. Miller came up for a hearing

again, and the Board again voted to deny parole because of the seriousness of his

offenses.

On October 15, 1997, Mr. Miller filed a petition for writ of certiorari to

review the action of the Parole Board. The Parole Board moved to dismiss the

petition on the ground that it failed to state a claim upon which relief could be granted.

The trial court dismissed the petition on March 2, 1998. This appeal followed.

1 Rule 10(b) of the Rules of the Court of Appeals reads as follows:

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a form al opin ion w ould h ave n o pre ced entia l value . W hen a cas e is de cided by memorandum opinion it shall be designated “MEMORAN DUM OPINION,” shall not be published, and s hall not be cited or relied on for any reason in a subsequent unrelated case.

-2- II.

A petition for writ of certiorari must be filed within sixty days of the entry

of the order or judgment appealed from. Tenn. Code Ann. §27-9-102. Failure to file

a petition within the sixty day time limit results in the trial court losing jurisdiction of the

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

App. 1976). Since over seven months elapsed between the decision of the Parole

Board and the filing of Mr. Miller’s petition, it appears that the petition should have

been dismissed for lack of jurisdiction. We note however, that even if Mr. Miller’s

petition had been timely filed, the court would still have been compelled to find it to

have no merit.

Large portions of both Mr. Miller’s petition for writ of certiorari and his

brief on appeal are devoted to challenges to his conviction. Mr. Miller claims that the

indictment was faulty, and that he pled guilty on the advice of a court-appointed

attorney who assured him that if he did so he would be home in five months. Of

course the Board of Paroles had no part in Mr. Miller’s conviction and sentencing, and

neither the chancery court nor this court has any jurisdiction over those matters.

The remainder of Mr. Miller’s argument is that the Board acted

unconstitutionally or illegally by basing its decision on the seriousness of his offense.

The courts of this state have had several opportunities to examine the question of

whether seriousness of offense is a constitutionally valid basis for denial of parole,

and have determined that it is. South v. Board of Paroles, 946 S.W.2d 310, 312

(Tenn. App. 1996); Arnold v. Board of Paroles, 956 S.W.2d 478, 482 (Tenn. 1997).

We note that the legislature has authorized the Board of Paroles to deny

parole if release would depreciate the seriousness of the offense, Tenn. Code Ann.

§ 4-35-503(b)(2). Rule No. 1100-1-1-.06(3)(b) of the Board of Paroles follows the

-3- legislative directive. Certainly, it would depreciate the seriousness of Mr. Miller’s

conduct if he were not severely punished for it. We thus find that the Board’s actions

cannot be considered unconstitutional or illegal.

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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