Opinion
92 2023
10-16-2023
ALAN T. BROOKS, Petitioner Below, Appellant, v. DAVID HENDERSON & PAROLE BOARD MEMBERS, ET AL. Respondents Below, Appellees.
Submitted: August 25, 2023
Court Below-Superior Court of the State of Delaware C.A. N22M-08-002
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
N. CHRISTOPHER GRIFFITHS, JUSTICE
(1) The appellant, Alan T. Brooks, filed a petition for a writ of mandamus challenging the revocation of his parole. The Superior Court granted the respondents' motion to dismiss the petition and denied Brooks's motion for reargument. Brooks has appealed to this Court. For the reasons discussed below, we remand to the Superior Court for further proceedings.
(2) In 1987, Brooks was convicted of numerous felonies, including first-degree murder. The Superior Court sentenced him to life imprisonment for the murder conviction and to a total of fifty-two years of incarceration for the other offenses. In September 2018, Brooks was granted parole.
Skinner v. State, 575 A.2d 1108 (Del. 1990).
Brooks v. State, 2010 WL 2197622 (Del. June 2, 2010).
(3) On October 10, 2020, Brooks was arrested on assault and cocaine-possession (Tier III) charges. On November 2, 2020, the Board of Parole (the "Board") presented Brooks with a "Notice of Probable Cause Hearing for an Interstate Violation of Probation/Parole" (the "Preliminary Hearing Notice").Brooks appears to have signed a "Waiver of Probable Cause Hearing" form ("Waiver Form") on that same day, indicating that he waived his right to the preliminary hearing. In addition to waiving the preliminary hearing, the Waiver Form states that Brooks admitted to violating condition numbers 1 and 7 of his parole. Condition number 1 required Brooks not to commit a new criminal offense. The Waiver Form identified the alleged violation of condition number 1 as "Assault 2d, Possession Tier 3." Condition number 7 required Brooks not to possess or consume a controlled substance unless lawfully prescribed. The Waiver Form identified the alleged violation of condition number 7 as "Found in possession of 22.7 grams of crack cocaine."
We refer to this notice as the "Preliminary Hearing Notice" because the document appears to give notice of the preliminary hearing required by Board of Parole Rule 19. Rule 19 requires that the Board hold a preliminary hearing "within approximately ten (10) working days after the Hearing Officer receives the violation report to determine whether probable cause exists to conclude that the offender has violated the conditions of release on 'technical' grounds." DEL. Bd. of Parole R. 19, available at https://boardofparole.delaware.gov/rules; see also Morrissey v. Brewer, 408 U.S. 471, 484-85 (1972) (examining the "process that is due" before revoking parole, and identifying "two important stages in the typical process of parole revocation," including "an inquiry . . . in the nature of a 'preliminary hearing' to determine whether there is probable cause or reasonable ground to believe that the arrested parole has committed acts that would constitute a violation of parole conditions"). Rule 19 also provides that the offender may waive the preliminary hearing. Del. Bd. of Parole R. 19. We note that although the Preliminary Hearing Notice in this case purports to give notice of a hearing, it does not include any information about when such hearing would occur.
We do not opine on the voluntariness or effect of any such admission under the circumstances.
(4) On May 18, 2021, the Board held a hearing, by videoconference, after which the Board (i) found Brooks guilty of violating conditions 1 and 7 of his parole; (ii) revoked his parole; (iii) advised Brooks that he would lose his previously earned good-time credit; and (iv) advised him that he would serve the balance of his original sentence, subject to his eligibility to reapply for parole consideration in thirty-six months (May 2024).
The record does not reflect the basis for the Board's finding-specifically, the record does not reflect whether the Board relied solely on Brooks's signing of the Waiver Form or whether it based its decision on other evidence of the violation.
(5) In the new criminal case, on March 16, 2021, before the parole-revocation hearing, the State dismissed the assault charge. The Tier III cocaine possession charge remained pending at the time of the Board's revocation hearing in May 2021. Later, on March 14, 2022, Brooks pleaded guilty to possession of cocaine, a Class B misdemeanor, as a lesser-included offense of the Tier III possession charge. The Superior Court sentenced him to six months of incarceration suspended for one year of probation.
(6) On August 2, 2022, Brooks filed a petition for a writ of mandamus in the Superior Court. The petition alleged that the Board revoked his parole based on charges for escape after conviction and motor-vehicle offenses, with which he had not been charged. The petition further alleged that the Board's procedures did not satisfy the minimum requirements of due process-specifically, the right to appear in person, to receive advance written notice of the time and place of the hearing and written notice of the alleged violations, and the right to appear with counsel. The petition asked the Superior Court to compel the Board to perform its duties in accordance with 11 Del. C. § 4352 and the Fourteenth Amendment to the United States Constitution. The petition further asked the Superior Court to require the Board to rescind its May 18, 2021 order revoking his parole and restore his good-time credit; it also requested that his punishment for the misdemeanor conviction be limited to the sentence imposed in the criminal case.
(7) The Superior Court granted the respondents' motion to dismiss. The court determined that Brooks had failed to establish entitlement to mandamus relief because he had not established that he had a clear legal right to the performance of a duty that the respondents had failed to perform. The court also concluded that Brooks had an alternative legal remedy available in the form of an action in federal court under 42 U.S.C. § 1983. Brooks moved for reargument. Citing Randolph v. State and White v. State, he argued that the court had erred by dismissing the petition without ensuring that the Board's procedures comported with the minimum requirements of due process. The Superior Court denied the motion for reargument. The court held that Brooks had not shown that the court had misapprehended any law or fact that would change its conclusion that Brooks had not established a clear legal right to the performance of a duty or the unavailability of another adequate legal remedy.
2017 WL 512471 (Del. Feb. 6, 2017).
2007 WL 1138470 (Del. Apr. 18, 2007).
(8) On appeal, Brooks argues that the Superior Court erroneously concluded that he had failed to establish a clear legal right to the performance of a duty. He contends that the Board had a duty to afford him the minimum requirements of due process and that it failed to do so by holding the parolerevocation hearing by videoconference, not providing him with advance written notice of the time and place of the hearing, not giving him proper written notice of the alleged violations, and not allowing him to have private or appointed counsel. As he did in the Superior Court, Brooks also asserts that the Board revoked his parole based on escape and motor-vehicle charges that he did not incur and of which he did not receive notice. In response, the State concedes that the record lacks sufficient information to determine whether the parole-revocation process satisfied the minimum requirements of due process. But the State argues that the Superior Court nevertheless correctly dismissed the petition for failure to establish that Brooks had a clear right to the performance of a duty by the Board and that no other adequate legal remedy was available.
This particular allegation appears to be based on a misapprehension of the Board's letter regarding the revocation of his parole.
(9) "A writ of mandamus is an extraordinary remedy that the Superior Court may issue to a state agency or official to compel the performance of a non-discretionary duty to which the petitioner has established a clear legal right." "In cases involving the Board of Parole, the Superior Court has an obligation to ensure that the process afforded to the parolee comports with the minimum requirements of due process," as set forth by the United States Supreme Court in Morrissey v. Brewer. In Morrissey, the Court held that the revocation of parole involves a deprivation of conditional liberty interests and that the minimum requirements of due process therefore must be satisfied before parole may be revoked. In addition to requiring a probable-cause determination, and certain procedures relating to that determination, Morrissey set forth the following minimum requirements of due process for the revocation of parole: (i) written notice of the claimed violations; (ii) disclosure to the parolee of the evidence against him; (iii) opportunity to be heard in person and to present witnesses and documentary evidence; (iv) the right to confront and cross-examine adverse witnesses; (v) a neutral and detached hearing body; and (f) a written statement by the factfinders of the evidence relied on and reasons for revoking parole.
Randolph, 2017 WL 512471, at *2 (citing 10 Del. C. § 564 and Clough v. State, 686 A.2d 158, 159 (Del. 1996)).
Id. at *2; see also White, 2007 WL 1138470, at *1 ("In cases involving the Board of Parole, the court must ensure that the Board followed the procedures set out in the parole statutes and the Board's regulations."); Bradley v. Del. Parole Bd., 460 A.2d 532, 534 (Del. 1983) ("In that the granting of parole is a matter of discretion with the Board, our task on review [of dismissal of a writ of mandamus] is to determine whether the Board followed the procedures set forth in the parole statutes and in its own regulations.").
408 U.S. 471 (1972).
Id. at 480-84.
Id. at 489.
(10) Delaware law authorizes the Board to revoke parole for "violation of any of the conditions of release." The statute provides that, after a parolee is arrested for an alleged violation of parole, the Board "shall cause the person to be brought promptly before it for a hearing on the violation charge, under such rules and regulations as the Board may adopt." The Board's rules provide as follows with respect to revocation hearings:
See 11 Del. C. § 4352(a), (d) (providing that parole may be revoked for a violation of the conditions of release if the violation is established at a hearing).
Id. § 4352(c); see also id. § 4343(2) (providing that the Board shall "[e]stablish rules and regulations for the conduct of its own proceedings, and rules of procedure for the effective enforcement of this Chapter").
19. REVOCATION HEARINGS: The Board's standards pertaining to hearings for revocation of parole or mandatory release are adopted from those prescribed by the 1972 Supreme Court decision on [sic] Morris[s]ey v. Brewer. Essentially, the Court prescribed two hearings-the preliminary and revocation (or final) hearings-in cases where the offender has been alleged to have committed a "technical"
violation of the conditions of release. In cases where the offender has been already convicted, a preliminary hearing is not held.
1. Preliminary Hearing: In accordance with procedures adopted by the Department, a preliminary hearing should be held within approximately ten (10) working days after the Hearing Officer receives the violation report to determine whether probable cause exists to conclude that the offender has violated the conditions of release on "technical" grounds. The offender, however, has the right to waive this hearing.
2. Final Revocation Hearing: The final revocation hearing is an informal process structured to assure that the findings of a parole hearing will be based on facts and that the decision will be based upon an accurate knowledge of the parolee's behavior (Morris[s]ey v. Brewer). The Board will attempt to conduct the final revocation hearing within two (2) months of receipt of the report alleging a new conviction or two (2) months of receipt of the results of the preliminary hearing alleging a "technical" violation, whichever is relevant. The offender is entitled to rights as follows:
1. advance written notice of the time and place of the hearing, and of specific parole violations;
2. a written copy of charges;
3. presence of counsel of choice or to have counsel appointed;
4. an opportunity to be heard in person and to present evidence and/or witnesses and for a limited right to cross-examine witnesses;
5. a timely, written decision
The testimony of witnesses must be relevant to the alleged violation and not cumulative. If there is any question about the nature of the testimony, the Board may require a written summary before the hearing. The written summary shall state how the testimony is relevant to the alleged violation. The offender has the right to confront and cross-examine adverse witnesses unless there is good cause (e.g., risk
of harm to the witness) for not allowing this confrontation. At the request of the offender, the Board will postpone the hearing until the offender can have counsel present.
DEL. BD. OF PAROLE R. 19, available at https://boardofparole.delaware.gov/rules.
(11) The State correctly observes that the Board's "final decision to revoke or continue parole is . . . entirely discretionary and is not subject to mandamus relief." But Brooks did not merely challenge the Board's discretionary decision. Rather, he alleged that the Board did not conduct its proceedings in accordance with the minimum requirements of due process and sought to require the Board to do so. In mandamus actions involving the Board of Parole, the Superior Court must ensure that "the Board followed the procedures set out in the parole statutes and the Board's regulations" and "that the process afforded to the parolee comports with the minimum requirements of due process set forth in Morrissey." The State concedes that the record lacks sufficient information to determine whether Brooks's parole-revocation hearing satisfied the minimum requirements of due process or whether the Superior Court considered that question. We therefore conclude that the Superior Court erroneously dismissed the petition on the grounds that Brooks had not established a clear legal right to the performance of a duty that the respondents had failed to perform.
See Randolph, 2017 WL 512471, at *2; White, 2007 WL 1138470, at *1 ("[M]andamus relief will not lie to review the Board of Parole's discretionary decision."). Cf. Semick v. Dep't of Corrections, 477 A.2d 707, 708 (Del. 1984) (stating, in appeal from denial of writ of mandamus, that mandamus "does not lie in this case due to the discretionary nature of the Parole Board's action," but "deem[ing] the case to be in this Court as though on a Writ of Certiorari" because of "the serious nature of the issues raised").
White, 2017 WL 1138470, at *1; Bradley, 460 A.2d at 534.
Randolph, 2017 WL 512471, at *2; see also White, 2017 WL 1138470, at *1 ("Having determined that there were no procedural defects, mandamus relief will not lie to review the Board of Parole's discretionary decision.") (emphasis added).
(12) The State also argues that the Superior Court correctly determined that Brooks had an adequate legal remedy in the form of a Section 1983 action that he filed in federal court. The State does not identify any decision that has held that mandamus relief is not available to a parolee asserting due-process claims arising under Morrissey because the parolee could assert those claims in federal civil rights litigation. Indeed, the State's position is contrary to this Court's decisions stating that in a mandamus case involving the Board of Parole, the Superior Court has a duty to ensure that the Board followed the minimum requirements of due process.
NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED to the Superior Court for further proceedings consistent with this order. Jurisdiction is not retained.