Opinion
Appellate Case No. 2015-000196 Unpublished Opinion No. 2016-UP-163
04-06-2016
James Tinsley, Appellant, v. South Carolina Department of Probation, Parole and Pardon Services, Respondent.
James Tinsley, pro se. Tommy Evans, Jr., of the South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. Appeal From The Administrative Law Court
S. Phillip Lenski, Administrative Law Judge
REVERSED AND REMANDED
James Tinsley, pro se. Tommy Evans, Jr., of the South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent. PER CURIAM : James Tinsley appeals the Administrative Law Court's (ALC's) order affirming the South Carolina Parole Board's (Parole Board's) denial of his parole. Tinsley argues the ALC erred when it found it did not have jurisdiction to review whether the Parole Board used inaccurate information as a basis to deny him parole. Specifically, Tinsley argues the Parole Board considered information that was expunged from his criminal record in making its decision and thereby deviated from the statutory criteria. We reverse and remand to the ALC to hold an evidentiary hearing to determine if the Parole Board is using false information to deny Tinsley parole. We recognize "[p]arole is a privilege, not a right." Cooper v. S.C. Dep't of Prob., Parole & Pardon Servs., 377 S.C. 489, 496, 661 S.E.2d 106, 110 (2008). "The [P]arole [B]oard . . . has the sole authority to determine parole eligibility separate and apart from the court's authority to sentence a defendant." Id. "However, the Legislature created [the Parole Board] to operate within certain parameters. We do not believe the Legislature established the [Parole] Board and intended for it to render decisions without any means of accountability." Id. at 499, 661 S.E.2d at 111. In Cooper, our supreme court recognized a distinction between the ALC's jurisdiction to review the Parole Board's decision "denying parole versus a determination that an inmate is not parole eligible." Id. at 497, 661 S.E.2d at 110. The Cooper court noted an inmate need not be permanently denied parole eligibility in order to secure ALC review of the decision because "a sufficient liberty interest may be implicated to trigger due process requirements even though the Parole Board's decision did not constitute a permanent denial of parole eligibility." Id. at 498, 661 S.E.2d at 111. Rather, "the question becomes whether Cooper's claim raises a sufficient state-created liberty interest to trigger due process requirements." Id. at 499, 661 S.E.2d at 111. The court held, "[i]f a Parole Board deviates from or renders its decision without consideration of the appropriate criteria, we believe it essentially abrogates an inmate's right to parole eligibility and, thus, infringes on a state-created liberty interest." Id. Here, we believe the ALC has jurisdiction to review whether the Parole Board deviated from the statutory criteria for parole by using allegedly expunged records. We find the ALC has "limited authority to review the decision to determine whether the [Parole] Board followed proper procedure" in considering the information it used to deny Tinsley parole. Id. at 500, 661 S.E.2d at 112.
We decide this case without oral argument pursuant to Rule 215, SCACR.
We recognize Tinsley has already had a second parole hearing, and an appeal stemming from that hearing is currently being held in abeyance in this court. We note the issue in this appeal is not rendered moot by the subsequent appeal because the use of the allegedly inaccurate information in making parole determinations is capable of repetition but evading review. See Curtis v. State, 345 S.C. 557, 568, 549 S.E.2d 591, 596 (2001) ("[A]n appellate court can take jurisdiction, despite mootness, if the issue is capable of repetition but evading review."). --------
REVERSED and REMANDED.
HUFF, A.C.J., and WILLIAMS and THOMAS, JJ., concur.