Tate v. SCDPPPS

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ronald Tate, Appellant,

v.

South Carolina Department of Probation, Parole and
Pardon Services, Respondent.

Appellate Case No. 2014-001047

Appeal From The Administrative Law Court
S. Phillip Lenski, Administrative Law Judge

Unpublished Opinion No. 2016-UP-269
Submitted April 1, 2016 – Filed June 8, 2016

AFFIRMED

Ronald Tate, pro se.

Tommy Evans, Jr., of the South Carolina Department of
Probation, Parole and Pardon Services, of Columbia, for
Respondent.

PER CURIAM: Ronald Tate appeals the order of the Administrative Law Court
(ALC) affirming the decision of the South Carolina Department of Probation,
Parole and Pardon Services (the Department) to deny him parole. Tate argues the
ALC erred in finding the Department did not (1) commit ex post facto violations
by applying sections 16-1-60 and 24-21-645(A) of the South Carolina Code (Supp.
2015), (2) commit ex post facto violations by applying section 24-21-640 of the
South Carolina Code (Supp. 2015), and (3) deprive Tate of his parole eligibility by
failing to hold annual hearings. Tate also argues the cumulative changes in the
parole laws violate the Ex Post Facto Clause of the United States and South
Carolina Constitutions. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities.

1. As to whether the ALC erred in finding the Department did not commit ex post
facto violations by applying sections 16-1-60 and 24-21-645(A): Sanders v. S.C.
Dep't of Corr., 379 S.C. 411, 417, 665 S.E.2d 231, 234 (Ct. App. 2008) ("In an
appeal of the final decision of an administrative agency, the standard of appellate
review is whether the AL[C]'s findings are supported by substantial evidence."); id.
("In determining whether the AL[C]'s decision was supported by substantial
evidence, this court need only find, considering the record as a whole, evidence
from which reasonable minds could reach the same conclusion that the AL[C]
reached."); Barton v. S.C. Dep't of Prob., Parole & Pardon Servs., 404 S.C. 395,
403, 745 S.E.2d 110, 114 (2013) ("A measure is an ex post facto law when it
retroactively alters the definition of a crime or increases the punishment for a
crime." (citing Jernigan v. State, 340 S.C. 256, 261, 531 S.E.2d 507, 509 (2000)));
id. ("The relevant inquiry regarding an increase in punishment is whether a
legislative amendment 'produces a sufficient risk of increasing the measure of
punishment attached to the covered crimes.'" (quoting Jernigan, 340 S.C. at 261,
531 S.E.2d at 509)); id. (stating an ex post facto violation does not occur when "the
amendment produces only a 'speculative and attenuated possibility' of increasing
an inmate's punishment" (emphasis added) (quoting Jernigan, 340 S.C. at 261, 531
S.E.2d at 509)).

2. As to whether the ALC erred in finding the Department did not commit ex post
facto violations by applying section 24-21-640: Sanders, 379 S.C. at 417, 665
S.E.2d at 234 ("In an appeal of the final decision of an administrative agency, the
standard of appellate review is whether the AL[C]'s findings are supported by
substantial evidence."); id. ("In determining whether the AL[C]'s decision was
supported by substantial evidence, this court need only find, considering the record
as a whole, evidence from which reasonable minds could reach the same
conclusion that the AL[C] reached."); Barton, 404 S.C. at 403, 745 S.E.2d at 114
("A measure is an ex post facto law when it retroactively alters the definition of a
crime or increases the punishment for a crime." (citing Jernigan, 340 S.C. at 261,
531 S.E.2d at 509)); id. ("The relevant inquiry regarding an increase in punishment
is whether a legislative amendment 'produces a sufficient risk of increasing the
measure of punishment attached to the covered crimes.'" (quoting Jernigan, 340
S.C. at 261, 531 S.E.2d at 509)); id. ("Furthermore, a change in law that merely
affects a mode of procedure, but does not alter substantial personal rights is not ex
post facto." (citing State v. Huiett, 302 S.C. 169, 172, 394 S.E.2d 486, 487
(1990))); Huiett, 302 S.C. at 171-72, 394 S.E.2d at 487 ("Even though a procedural
change may have a detrimental impact on a defendant, a mere procedural change
which does not affect substantial rights is not ex post facto.").

3. As to whether the ALC erred in finding the Department did not deprive Tate of
his parole eligibility by failing to hold annual hearings: Mathis v. S.C. State
Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973) ("[An issue]
becomes moot when judgment, if rendered, will have no practical legal effect upon
existing controversy. This is true when some event occurs making it impossible
for [the] reviewing [c]ourt to grant effectual relief.").

4. As to whether the cumulative changes in the parole laws violate the Ex Post
Facto Clause: Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 519,
460 S.E.2d 410, 417 (2002) ("[I]ssues not raised to and ruled on by the AL[C] are
not preserved for appellate consideration."); Helms Realty, Inc. v. Gibson-Wall
Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487-88 (2005) (stating the appellant has
the burden of establishing a sufficient record on appeal).

AFFIRMED.1

SHORT and THOMAS, JJ., and CURETON, A.J., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.