*1
STATE West
Ray STOLLINGS, Petitioner, HAINES, Warden, S. Huttonsville
William Center, Virgi- and West
Correctional Board, Respondents.
nia Parole
No. 30442.
Supreme Appeals Court of Virginia. 5, 2002.
Submitted June
Decided 2002. June
Concurring Dissenting Opinion Albright August
Justice *2 WV, Bailey, Logan, for Peti- T.
Charles tioner. General, McGraw, Jr., Attorney
Darrell V. Connolly, Attorney A. Assistant Heather Charleston, WV, General, Respondents. PER CURIAM. (hereinafter Ray Stollings, re-
William peti- Stollings”) “Mr. filed this ferred to as corpus seeking a writ of habeas tion for his at the Huttons- release from confinement support of his ville Correctional Center. was petition, Stollings contends he Mr. arbitrarily capriciously denied Virginia respondent, West (hereinafter to as “the Parole referred Board”).1 alleges Stollings Mr. further findings to set out the Parole failed would not be reconsidered he of Pa- parole until two after the date upon initial denial. Based role Board’s arguments appeal, parties’ on the record des- review, perti- ignated appellate and the authorities, of habeas we the writ nent corpus.
I. AND FACTUAL PROCEDURAL HISTORY Stollings Mr. went to bar pistol. Logan, Virginia, armed with bar, Stollings Mr. met While twenty- estranged girlfriend, confronted his year-old Mr. three Terri Lea Sizemore. engaged in a Stollings and Ms. Sizemore him and she told their relation- conversation placed ship had ended. Mr. Sizemore then pistol and shot to Ms. Sizemore’s head her. 19, 1987, Stollings Mr. was
On March degree by a guilty of first murder found County jury. jury Logan recommended mercy. court Mr. Stoll- The trial sentenced 24, 1987, imprisonment ings April to life on ter, Haines, respondent. Bill was also named as 1. The warden of Correctional Cen- Huttonsville eligibility capricious by focusing primarily for release after fashion upon serving years. previous activity a minimum of ten criminal [his] confinement exclusion other relevant factors.” We 25, 2000, July Stollings Mr. had his On held, point also syllabus 3 of Tasker parole hearing. first The Parole Board elic- Mohn, S.E.2d 183 *3 testimony Stollings, from Mi*. and from ited (1980), parole that “[r]elease is a substan- community of the who testified members liberty procedures by tial interest and the against both favor of and his release. granted it is satisfy which or denied must Subsequent hearing, the Parole Board process standards.” parole Stollings to Mr. and set a denied new parole hearing of Stollings date of 2002. Mr. Mr. June to our decision in cites Rowe 668, Stollings petition Whyte, filed this habeas on Decem- v. 167 280 W.Va. S.E.2d 301 27, (1981), support ber his contention that
Parole Board failed to consider all relevant impacting factors decision grant its or II. deny him In Rowe the inmate was STANDARD REVIEW OF parole sought denied and immediate release case, proceeding. from this Court in a habeas this we have been asked to We determined in a final of the Rowe that the Parole Board review decision Parole Board provided inadequate an denying parole Stollings. the inmate with to Mr. This hear Court ing. specifically We that: syllabus point Whyte, indicated stated 3 of Rowe v. (1981), 301 The upon concentration of the board grant deny parole decision to “[t]he or is a petitioner’s criminal record and the discretionary by evaluation to be made negative community report sentiment lim- However, Virginia [Parole Board].
West
scope
inquiry
ited the
of
board’s
by
such a decision shall be reviewed
this
a
beyond
of
consideration
factors
[Parole
Court
determine if the
Board]
ability
petitioner modify
of the
after his
by acting
its
abused
discretion
an arbi
fact,
board,
incarceration.
trary
capricious
Syl.
fashion.” See also
emphasis
petitioner’s
its
upon the
criminal
part,
Duncil,
pt.
State ex rel. Eads v.
activity
incarceration,
prior to
acted in a
(“The
534
W.Va.
S.E.2d
sentencing
manner
similar to
court in
Virginia
...
[Parole]
must act in
which,
appropriately,
more
such criminal
unreasonable,
way
capricious,
which is not
activity
highly
would be
determinative.
arbitrary.”).
Rowe,
III. parole hearing purpose hold another for the requirements considering all con- DISCUSSION § pa- tained W. 62-12-13 Va.Code A. Denial of Parole role consideration. believe Rowe is dis- We tinguishable from instant case. dispositive The issue this case is whether the Parole Board’s decision to record review of the reveals that Our Stollings arbitrary complied to Mr. was the Parole Board with all fac capricious. Stollings § It is Mi*. contended tors contained in Va.Code 62-12- W. 13(i)(l).2 Rowe, arbitrary that the Parole Board “acted in an Unlike the decision 62-12-13(0(1) superintendent § 2. W. Va.Code den states: the state correctional center to which such inmate is sentenced: (i)(l). considering an When inmate of a (i) On the conduct record while in inmate's parole, state correctional center for release on custody, including detailed statement show- board is to have before it an authen- ing disciplinary all infractions rules copy report tic of or on the inmate’s current by the discipline administered nature and extent of inmate and the provided through record criminal the West therefor; Virginia police, depart- (ii) state the United States changes improvement On or other noted justice ment of or other reliable criminal infor- in the and moral inmate's mental condition reports including custody, expres- mation sources and written of the war- while in a statement Therefore, in in this a thor- view record case conducted the entire case, say Stollings and ad- cannot the Parole Board of Mr. we ough interview statutory denying Mr. required issues. its discretion Stoll- of the abused all dressed say Mr. ings parole. does not Nor can Stoll- transcript from the we degree ings process. attention to Mr. was denied due undue an reflect tran- history. The Stollings’ prior criminal Noncompliance ex rel. B. with State Board considered script the Parole revealed Carper v. Parole Board W. Va. crime, as the circumstances such Stollings assigned error to Mr. also conduct, record, present work criminal prior Parole Board’s to set out reasons failure record, programs, and participation prison parole any refusing to him for reconsider community regarding sentiments official last than two from his earlier release.3 *4 hearing. The Board contends that Parole Board listed decision the Parole The Stollings is moot will this issue because Mr. (1) denying parole: for circum- four 24-27, parole hearing on have another June (3) convictions, crime, prior of the stances agree Parole Board 2002. While we with the sentiment, offi- community/public moot, may technically we that this issue be Additionally, during cial/judicial sentiment. believe the falls within one of further matter interview, expressed the Parole the exceptions. this Court’s mootness dismay Stollings that Mr. still considerable placing syllabus point that he did not remember In 1 v. contended of Israel West killing to Ms. head and pistol Virginia Secondary Sizemore’s the Activities Com Schools Stollings, During hearing, mission, the Mr. 480 her. claiming responsibility (1989), for accept addressing to the while set out for we the basis crime, only that oc- could recall matters as moot issues follows: prior shooting to the and afterward. curred Three factors to considered decid- be trying give to Specifically, he recalled the ing technically to moot whether address pistol to Ms. He claimed Sizemore. first, court issues are as follows: the -will gun His process the went off. selective the determine sufficient collateral whether to medical recollection events is contrast consequences will from determina- result Indeed, testimony trial. offered at his questions presented tion of the so as to at trial that Ms. evidence indicated Sizemore relief; second, technically justify while impression had an on her head from the context, questions moot the immediate being placed directly against it. pistol public may great nevertheless interest guidance also note that Parole Board re- be addressed future We third, signed by public; hun- and of the issues petitions purportedly ceived bar community may repeatedly presented which be dreds of individuals who court, Stollings yet appel- argued against releasing escape Mr. trial at the review fleeting Parole Board also received let- level of them late because nature, may appropriately of Ms. Size- be ters from numerous relatives determinate requesting more that he not be released. decided. likely perform attitude and in inmate is most sive of the inmate’s current society toward which the general, judge who prison; toward the sen- when he to succeed or she leaves her, prosecuting
tenced him or tire (iv) toward physical, psychiatric ex- On mental and her, attorney prosecuted who him or toward conducted, aminations of the insofar inmate as policeman who arrested other officer pre- praclicable, within the two months next the inmate and toward the crime for which he ceding the board. consideration previ- under and his or her she is sentence record; ous criminal during argument 3. was some oral There debate (iii) On the industrial record while inmate's as to whether Parole Board considered custody which include: The nature of shall However, report Stollings. psychological of Mr. work, education, occupation his or her or day psychological report the record indicates that the average per number of he or she hours has was before the at the time of Parole Board custody employed been or in class while hearing. a recommendation to the nature and kinds as employment fitted which he or she is best presented Stollings relating Mr. simply The issue The decision the Parole Board de- firmly Carper must ad- Mr. Stollings decision be clares that be again would seen years.5 it is a matter than can es- Carper dressed because two demands more. Un- fact, cape Stollings’ Mr. is a Carper, review. case der the Parole Board cannot example escape this good of how issue can Stollings Mr. an annual review with- judicial is review. He now scheduled for a articulating justifications. out individualized Therefore, Therefore, on June strongly urge we the Parole matter, this unless Court addresses the Carper Board to follow the decision and set Camper repeated by violation could be justifications forth individualized for their de- again escaping Parole Board appellate thus Otherwise, may termination. this Court review. specific forced enunciate remedies for Car- per Stollings violations. Insofar Mr. as Stollings Mr. contends review, again up we need not Carper Court’s decision in State ex rel presently remedy fashion a Carper Bd., Virginia Parole Stollings violations. Should Mr. not be (1998), required S.E.2d the Parole 24-27, granted parole during his June findings set out two would however, hearing, board we caution pass he could before have another specific Board to follow the man- hearing.4 agree. syllabus We Carper. dates of *5 3, Carper, point part, in of we set out the following: IV. may only The Board of Parole extend period hearings
the between review CONCLUSION ... beyond year prisoners 1 [for whose prayed The writ for is denied. offenses at a occurred time when the law Writ denied. prescribed annual if the reviews] case-specific Board has amade individual- deeming MAYNARD Justice himself ized with findings determination reasoned disqualified, did in participate not the showing why on the record will be no there decision of case. disadvantage detriment or prisoner from Additionally, such an extension. KING, Judge sitting by temporary process requires that such a re- assignment. period ceiving a 1 review of than more ALBRIGHT, Justice, concurring part in year opportunity must afforded the dissenting part. in submit for information the consid- Board’s (Filed 2002) 5, Aug. any during period eration extended re- questing granted that a review be before My simply original intent concur in was to expiration period. of the extended majority opinion. fully reviewing After I opinion, part concur in have elected to case, In the instant is to the record part. I concur the decision dissent tally why void of stated reason as to respect with to the failure of the record to Parole Board refused consider Mr. Stoll complied that the Board disclose Parole ings period years. for In for a two the decision this Court in State ex rel. fact, the Board’s Parole Recommendations Board, Carper Virginia West 203 v. Parole page at sheet two states: (1998). 583, 509 W.Va. S.E.2d 864 Hearing Deny years/ Decision: —2 However, set-up PED separately If is for than I dissent more and write 6/2002. year, agree one in- reason time I do not that the record because re- crease:_ (hereinafter veals that the Parole Board Stollings offense which Mr. 5. did make clear is incarcer- The Parole Board’s decision Stollings that Mr. could additional mate- ated submit was committed at a time when the law during year period rial two an effort to prescribed annual reviews. expedited illustrate the need for an ing. hear- 50 Board”) parole has been Inmates to whom com- to as “the referred
sometimes to written statements denied are entitled factors set forth West all plied with 12—13(i)(l)(1999), of the reasons denial. sug- § Virginia Code 62— I majority opinion. also be- gested 55, at 184. W.Va. at 267 S.E.2d 165 majority lieve, contrary in the to assertions Rowe, holdings in we reiterated from the cannot determine that one opinion, and, of Tasker syllabus points one and three the Board degree of attention what record body relying point made on another Stollings’ aspects of Mr. positive gave the Tasker opinion, also held as follows confinement, record, his especially since syllabus point three: concluded, it in fact if the Board how or grant parole is a The decision to conclude, negative factors so did discretionary to be made evaluation indicates the which the record upon Virginia of Probation and Pa outweighed those denying parole relied However, shall be such decision role. especially critical factors. This is positive if by this to determine reviewed Court negative factors light of the fact Board of Probation and Parole abused its substantially beyond in the record are recited arbitrary by acting in an discretion change. power of the Mohn, capricious fashion. Tasker v. (1980). 183, 190 W.Va. 267 S.E.2d preferred that this Court I would at 301. 280 S.E.2d 167 W.Va. guidance re- Board further give the Parole Mohn, holdings in Tasker v. garding our proceeding to a discussion Before (1980), and Rowe Tasker, 267 S.E.2d Rowe and their prog- implications of (1981), Whyte, eny, emphasize that there are im- I wish to approach to cases in this Court’s policy the seminal portant public reasons —reasons one, syllabus points expectations the issue addition to the reasonable Tasker, that under we held parole eligible prisoners three and four this Court —for *6 First, laws of peo- and provisions parole process. of the Constitution address the justified in- highly a ple this State: of this State have assuring persons that unfit for re- terest in W.Va.Code, statute, 62-12- parole 1. Our parole, prison on are not released from lease (1979), expectation creates a reasonable 13 arbitrary by capri- particularly reason of prisoners parole in to those meet- interest Board, objec- cious actions of the when the objective ing criteria. its tive criteria parole are not met. On the parole on is a substantial liber- 3. Release hand, popu- ever-increasing prison other our by which it ty procedures and the interest lation, growth in state and fed- of which pro- satisfy must granted or denied recently facilities in the State has been eral cess standards. in na- reported growing to the fastest be building requires parole accompanying that re- cost of process tion —with the Due prisons to the convicts and the processes include the fol- new house interview lease persons in- very keeping cost of substantial lowing minimum standards: heavy imposes a financial bur- carcerated — taxpayers of this that den on the State (2) to access to An inmate is entitled by arbitrary and should not be exacerbated will in record which be information his keep person a incar- capricious decisions to to whether he receives used determine criteria, who, by objective should be cerated (absent overriding security con- parole paroled. must be recorded siderations which Moreover, to reliance on ob- respect with file); his criteria, likely jective recognize, I does Court, that no matter member of this each objective criteria are (4) record, thoroughly capable being of how such A which is to applied, and the decision writing, must made of articulated be reduced is, given prisoner in the final or not a interview to allow each release review; subjective judgment of Parole judicial analysis, a and
51
(1982),
concept
should not be disturbed
this
reinforced
Board which
Court
an
judiciary
truly
unless
arbi-
possesses
there
has been
the Board
Parole
the ultimate
capricious
trary and
action. Even
those
power
grant
deny parole
striking
circumstances,
that,
excep-
I submit
absent
regulation
down a
required
circumstances,
remedy
proper
tional
approval of the Commissioner of Corrections
arbitrary
capricious
and
action
any such
parolee’s
plan
of a
release
holding:
parole hearing
no
than
should be more
a new
W.Va.Code, 62-13-2(d) (1965), expressly
conforming
recog-
to the law. It is likewise
states that
the final
determination as
a
nized that
decision once made —to
prisoners
release of
on
is vested
refuse-may
good
grant or
turn out
be
the Board of Probation and Parole. This
decision,
or,
hindsight,
a bad
perhaps,
provision
language
reinforces the
in W.Va.
Parole Board is
to due and full
entitled
Code, 62-12-13, relating to
authority
decisions, deliberately
respect of its
grant parole.
the Board to
faithfully made.
231,
2. Convictions
(Public)
Community
Sentiment
Judicial)
(including
Sentiment
10. Official
incarceration,
in a
tivity prior to
acted
reason checked advised
preprinted
fifth
sentencing
to a
court
egregious
“an
manner similar
prisoner’s crime was
that the
which,
criminal
appropriately, such
justification for
more
warrants
violence that
act of
activity
highly
Finally,
would be
determinative.
parole consideration.”
extended
preprinted recommenda-
made three
(em-
at
at
306-07
167 W.Va.
for his next
tions
added.)
phasis
(2)
Stay
prison;
of trouble
hearing:
out
opinion,
point in the Rowe
Jus-
At another
programs;
in all recommended
participate
explained clearly
pro-
McHugh
tice
employment.
maintain
obtain
just
completion
requires more than
cess
form constitutes
in the blanks”
This “fill
he wrote:
of forms when
for the Board’s
record of the basis
the whole
Tasker,
to whom
As
“Inmates
we held
deny parole
prisoner.
this
decision to
to writ-
denied are entitled
has been
good
faith
recognize this form as
While I
of the reasons for denial.”
ten statements
which
is a record
to assure that there
effort
By
holding
at 191.
we
S.E.2d
positive, as
well
indicates consideration
that written
intended
reasons of
given parole applica-
negative, aspects of
denial
be more than
board
tion,
very
gives
form
no
it is
clear
quali-
“... characterized
a mechanistic
Board in
what consideration the
clue as to
ty.”
aspects
applica-
of the
gave
positive
fact
negative
tion nor
indication
(empha-
It is
that the
of W.Va.
clear
modify
Code, 62-12-13,
ability
petitioner to
after
of the
reflect an intention on
appar-
light
Id. In
of the
Virginia Legislature to
his incarceration.”
part of the West
prior
ently exemplary
of the
posi-
record
require
parole board
consider
*8
Board’s insis-
parole
to the
and the
negative
the
tive as well
postponing
parole consider-
parole
tence on
further
granting
or denial
The
of
years,
with
at
two
one is left
particularity all
ation for
least
should follow with
board
simply
impression that the Board
decided
regulations
and
the
statutes
its own rules
and
“expecta-
no
prisoner should have
concerning
The concen-
that this
parole decisions.
regardless
conduct in
parole,”
tion of
of his
parole
upon
peti-
the
tration
the
board
of
re-integration
suitability negative
prison or his
record and the
tioner’s criminal
society
might
developed
into
that he
have
report
limited the
community sentiment
Tasker,
W.Va. at
during incarceration.
scope
parole
inquiry to a
the
board’s
of
59-60,
Board
ability
at 186-87. The
beyond the
consideration of factors
any meaningful
without
reached that decision
petitioner modify
his incar-
the
to
after
of
board,
fact,
for it or
refer-
articulation of the basis
In
its
ceration.
the
by
objective
required
criteria
the
ac-
to the
emphasis upon
petitioner’s criminal
ence
the
statute, Tasker,
proge-
improve
Rowe
their
believe there have been substantial
procedure
ments in
since then —it still
ny.
must
said that
be
the
reasons for
written
the deni
strengthened
impression
by my
That
is
parole given
prisoner
ofal
to the
in this case
reading
transcript
of
the
the
hear-
by a
quality.”
are “characterized
mechanistic
family,
ing, the letters from
victim’s
the
Rowe,
APPENDIX STATE PAROLE BOARD WEST VIRGINIA Recommendations/Decision