Burton 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

Johnny Burton, Respondent,

v.

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

Appellate Case No. 2016-002131

Appeal From The Administrative Law Court
John D. McLeod, Administrative Law Judge

Unpublished Opinion No. 2018-UP-304
Submitted June 1, 2018 – Filed July 5, 2018

REVERSED

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

Johnny Burton, pro se.

PER CURIAM: The South Carolina Department of Probation, Parole and Pardon
Services (the Department) appeals an Administrative Law Court (ALC) order
reversing and remanding the parole board's (the Board's) denial of inmate Johnny
Burton's parole. On appeal, the Department argues the ALC erred by finding it
denied Burton due process by failing to inform him that it would perform a
COMPAS1 assessment prior to his parole hearing. We reverse.2

Section 24-21-10(F)(1) requires the Board to use a risk assessment tool when
deciding whether to grant or deny parole. The risk assessment is a separate
requirement that the Board must consider along with "the written, specific criteria"
for granting parole referenced in section 24-21-640 of the South Carolina Code
(Supp. 2017). See § 24-21-640 ("The [B]oard must establish written, specific
criteria for the granting of parole and provisional parole. This criteria must reflect
all of the aspects of this section and include a review of a prisoner's disciplinary
and other records."). Although section 24-21-640 requires that the criteria for the
granting of parole "must be made available to all prisoners at the time of their
incarceration," section 24-21-10(F)(1) does not contain such a requirement. We
find that if the legislature had intended to require the Department to provide an
inmate with prior notice of the Board's use of a risk assessment tool, it would have
included a notice requirement in section 24-21-10(F)(1). See Savannah
Riverkeeper v. S.C. Dep't of Health & Envtl. Control, 400 S.C. 196, 201, 733
S.E.2d 903, 905 (2012) (providing that the primary rule of statutory construction is
to ascertain and effectuate the intent of the legislature). Because the Department is
not required to provide inmates with notice of the Board's use of a risk assessment
tool and because the Department properly notified Burton of the criteria to be
considered by the Board as required by section 24-21-640, no statutory or due
process violation occurred. See Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 15 (1979) ("[W]e find nothing in the due process concepts as
they have thus far evolved that requires the Parole Board to specify the particular
'evidence' in the inmate's file or at his interview on which it rests the discretionary
determination that an inmate is not ready for conditional release."); id. at 15-16
("To require the parole authority to provide a summary of the evidence would tend
to convert the process into an adversary proceeding and to equate the Board's
parole-release determination with a guilt determination."). Accordingly, we hold
the ALC's order was affected by an error of law. See S.C. Code Ann. §
1-23-610(B) (Supp. 2017) (providing this court may reverse the ALC's decision if
it is affected by an error of law); see also Chapman v. S.C. Dep't of Soc. Servs.,
420 S.C. 184, 188, 801 S.E.2d 401, 403 (Ct. App. 2017) ("Unless there is a
compelling reason to the contrary, appellate courts 'defer to an administrative

1
COMPAS is an acronym for "Correctional Offender Management Profile for
Alternative Sanctions," which is a risk assessment tool used by the Department in
compliance with section 24-21-10(F) of the South Carolina Code (Supp. 2017).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
agency's interpretations with respect to the statutes entrusted to its administration
or its own regulations.'" (quoting Kiawah Dev. Partners, II v. S.C. Dep't of Health
& Envtl. Control, 411 S.C. 16, 34, 766 S.E.2d 707, 718 (2014))).3

REVERSED.

LOCKEMY, C.J., and WILLIAMS and KONDUROS, JJ., concur.

3
The Department also contends it cannot comply with the ALC's order to hold a
new parole hearing for Burton within thirty days because South Carolina law
requires it to provide thirty days' notice to the victims, solicitor's office, and law
enforcement involved in Burton's case. Because we are reversing the ALC's order
above, we need not address this argument. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an
appellate court need not address remaining issues when disposition of a prior issue
is dispositive).