133 Nev., Advance Opinion 415
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL P. ANSELMO, No. 67619
Petitioner,
vs.
CONNIE BISBEE, CHAIRMAN; SUSAN FilL ED
JACKSON, TONY CORDA, ADAM
ENDEL, COMMISSIONERS; AND THE JUN 2 9 2017
STATE OF NEVADA BOARD OF 1P. EI:10';AiN
PAROLE,
L1llLF Li
Real Parties in Interest.
Original petition for extraordinary relief requesting the Parole
Board to reconsider its decision to deny parole partially based on an
inapplicable aggravating factor.
Petition granted.
Brownstein Hyatt Farber Schreck, LLP, and Kirk B. Lenhard and Emily
A. Ellis, Las Vegas,
for Petitioner.
Adam Paul Laxalt, Attorney General, Jeffrey M. Conner, Assistant
Solicitor General, and Daniel M. Roche, Deputy Attorney General, Carson
City,
for Real Parties in Interest.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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OPINION
By the Court, STIGLICH, J.:
Generally, an inmate does not have any protectable due
process or liberty interest in release on parole, unless that right is created
by state statute. Given the clear discretionary language of Nevada's
parole statute, this court has consistently held that Nevada inmates have
no protectable liberty interest in release on parole. Accordingly, this court
will not disturb a determination of the Nevada Parole Board (Board) to
deny parole for any reason authorized by regulation or statute.
Nonetheless, eligible Nevada inmates do have a statutory
right to be considered for parole by the Board. When the Board clearly
misapplies its own internal guidelines in assessing whether to grant
parole, this court cannot say that the inmate received the consideration to
which they are statutorily entitled. Therefore, under the limited
circumstances presented in this case, we conclude that a new parole
hearing is warranted.
FACTS AND PROCEDURAL HISTORY
In 1972, appellant Michael P Anselmo was convicted of
murder and sentenced to life in prison without the possibility of parole.
He sustained subsequent convictions for escape in 1976 and 1977, and was
sentenced to a consecutive ten years for each conviction.
For the next twenty years, Anselmo largely became a model
prisoner. In 2006, the Pardons Board commuted his sentences to life with
the possibility of parole after five years, with one concurrent ten-year
sentence, and one consecutive ten-year sentence.
Between 2006 and 2012, Anselmo appeared before the Parole
Board on three separate occasions. Each time, the Board denied parole,
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primarily citing to the seriousness of Anselmo's underlying offense and/or
the impact of his offense on the victim.
Anselmo appeared before the Parole Board for the hearing at
issue on November 17, 2014. Pursuant to the standards promulgated in
the Nevada Administrative Code, the Board completed a Parole Risk
Assessment, which assigned Anselmo's offense a "severity level" of
"[h]ighest," and Anselmo a "Misk [s]core" of "Wow," indicating that the
Board should consider certain aggravating and mitigating factors in
determining whether parole was appropriate.
As mitigating factors, the Board noted that Anselmo had not
committed a disciplinary infraction since 2007, had community or family
support, would be paroled to his pending escape sentence, and had
participated in extensive educational programming. As aggravating
factors, the Board noted the impact on the victim and/or community, that
Anselmo had sustained two convictions for escape while incarcerated, and
that the "In]ature of criminal record is increasingly more serious: Previous
offenses are property crimes."
The three hearing members who conducted the parole hearing
recommended granting parole. That recommendation was not, however,
ratified by a majority of the Board, as the remaining four Board members
voted to deny parole. The Board's written decision indicated that the
In] ature of criminal record is increasingly more serious" and the "51mpact
on victim(s) and/or community." Anselmo filed a request for
reconsideration with the Board, which was denied.
Anselmo now argues that he is entitled to a new parole
hearing because (1) the Board's denial of parole based on certain
immutable characteristics, such as the seriousness of the underlying
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II
offense, violates the Due Process Clause; and (2) the Board failed to follow
its own internal guidelines in assessing the applicable aggravating and
mitigating factors.
DISCUSSION
Standard of review
"A writ of mandamus is available to compel the performance
of an act that the law requires . . . or to control an arbitrary or capricious
exercise of discretion." Intl Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197,
179 P.3d 556, 558 (2008); see NRS 34.160. "An
arbitrary or capricious exercise of discretion is one founded on prejudice or
preference rather than on reason, or contrary to the evidence or
established rules of law." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 931-32,
267 P.3d 777, 780 (2011) (citation
omitted) (internal quotation marks omitted). "[WI here there is [no] plain,
speedy and adequate remedy in the ordinary course of law," extraordinary
relief may be available. NRS 34.170; Smith v. Eighth Judicial Dist. Court,
107 Nev. 674, 677,
818 P.2d 849, 851 (1991).
In this case, there is no applicable statutory vehicle through
which Anselmo may challenge the Board's actions. Accordingly, we
consider whether the actions of the Board were contrary to the established
rules of law, warranting the issuance of a writ of mandamus.
The Board may deny parole for any reason authorized by statute
When an inmate becomes eligible for parole, "the [Parole]
Board shall consider and may authorize the release of the prisoner on
parole." NRS 213.140(1). Despite this guarantee that an eligible inmate
will be considered for parole, "the release. . . of a person on parole .. . is
an act of grace of the State. No person has a right to parole . ." NRS
213.10705.
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The United States Supreme Court has determined that an
inmate does not have any protectable due process or liberty interest in
release on parole, unless that right is created by state statute. Greenholtz
v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). This court
has consistently held that given its discretionary language, Nevada's
parole statute creates no "protectable liberty interest sufficient to invoke
the Due Process Clause." State, Bd. of Parole Comm'rs v. Morrow, 127
Nev. 265, 271,
255 P.3d 224, 228 (2011); see also Weakland v. Bd. of Parole
Comm'rs, 100 Nev. 218, 220,
678 P.2d 1158, 1160 (1984) (holding that
because no due process right to parole exists, the Board is not
constitutionally required to provide any reason for the denial of parole);
Severance v. Armstrong, 96 Nev. 836, 839,
620 P.2d 369, 370 (1980).
Despite this firmly settled law, Anselmo urges this court to
adopt the California approach taken in In re Lawrence, 190 P.3d 535 (Cal.
2008), with respect to the circumstances in which parole may be denied
based on the egregiousness of the underlying offense. Under Lawrence,
parole may be denied based on the egregiousness of the underlying offense
only if the parole board also finds that the inmate continues to pose a
current threat to public safety. Id. at 560. In other words, the court
concluded that "Mlle relevant inquiry for a reviewing court is not merely
whether an inmate's crime was especially callous, or shockingly vicious or
lethal, but whether the identified facts are probative to the central issue of
current dangerousness." Id. Accordingly, the California court determined
that where the record was "devoid of any evidence" indicating that the
inmate posed a current threat to public safety, the inmate's "due process
and statutory rights were violated by the. . . reliance upon the immutable
and unchangeable circumstances of her commitment offense." Id. at 564.
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There is, however, a significant difference between the parole
statutes at issue in Lawrence and those in Nevada that is central to the
decision in Lawrence. Specifically, the California Parole Board "must
grant parole unless it determines that public safety requires a lengthier
period of incarceration for the individual because of the gravity of the
offense underlying the conviction." Id. at 547 (internal quotation marks
omitted). Based on that language, the California Supreme Court has
determined that eligible California inmates have a due process right in the
grant of parole, such that a decision to deny parole is subject to judicial
review. See In re Rosenkrantz, 59 P.3d 174, 205 (Cal. 2002). This fact is
central to the conclusion in Lawrence that some evidence must support a
finding of current dangerousness. See 190 P.3d at 560.
In contrast, as discussed above, the Nevada statutory scheme
does not provide any due process right in the grant of parole. Therefore,
unlike the California courts, this court generally will not review the
evidence supporting a decision of the Board. See Morrow, 127 Nev. at 271-
72, 255 P.3d at 228 (reiterating that no cause of action exists when parole
is denied). Both NRS 213.1099(2)(c) and NRS 213.10885(2)(a) clearly
provide that the Board "shall" consider the seriousness of the underlying
offense in determining whether to grant or deny parole. Given that
Nevada law clearly allows for the denial of parole based on the severity of
the crime committed, it cannot be said that the Board acted contrary to
established law in considering the seriousness of the underlying offense.
As such, the Board's actions in this respect would not warrant relief in
mandamus See Armstrong, 127 Nev. at 931-32, 267 P.3d at 780
(explaining that writ of mandamus may issue upon a showing that a state
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agency acted "contrary to the . . . established rules of law" (internal
quotation marks omitted)).
The Board must follow its internal guidelines
Anselmo also argues that he is entitled to a new parole
hearing because the Board failed to follow its internal guidelines when it
noted as a reason for denial that the In] ature of criminal record is
increasingly more serious." This court agrees.
Pursuant to NRS 213.1099(2) and NRS 213.10885(1), the
Board must promulgate detailed standards to determine whether the
release of an inmate on parole is appropriate. These standards are
codified in the Nevada Administrative Code, Under. NAC 213.512(1), the
Board must first assign "a severity level" to the crime for which parole is
being considered. The Board must then assign "a risk level" "using a
combination of risk factors that predict recidivism." NAC 213.514(1)-(2).
Based on these scores, NAC 213.516 provides an assessment regarding
whether to grant parole, deny parole, or consider the other aggravating
and mitigating factors set forth in NAC 213.518.
In this case, the severity level of Anselmo's crime was rated
"Dilighest," while his risk level was considered "Wow." In these
circumstances, NAC 213.516 indicates that the Board should consider
aggravating and mitigating factors. The Board noted multiple mitigating
factors in Anselmo's favor, including his favorable disciplinary record, his
participating in programming, family support, and the fact that he would
be paroled to a consecutive sentence. See NAC 213.518(3)(a), (c), (g), and
(i). As aggravating factors, the Board noted the severe impact of the crime
on the victim, as provided by NAC 213.518(2)(g), and also noted that the
"[n] ature of criminal record is increasingly more serious," as provided by
NAC 213.518(2)(k).
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With respect to the aggravating factor under NAC
213.518(2)(k), the internal guidelines for the Division of Parole and
Probation state:
Nature of criminal record is
increasingly more serious.
Indicate this factor if criminal conduct of the
person has escalated over time to include violence
toward victims or others, or the scale of criminal
activity has increased over time. If the person is
now serving a sentence of life, or Murder/Sexual
Assault, don't use this as the person has already
committed the most serious of crimes This factor
is used as a possible indicator of more serious
activity in the future.
Nevada Parole Guidelines Aggravating and Mitigating Factors
Definitions, http://parole.nv.gov/uploadedFiles/parolenvgov/content/
Information/Aggravating_and_Mitigating_Factors_Definitions.pdf (last
visited March 21, 2017). Based on the plain language of the internal
guidelines, this aggravator should not have been applied to Anselmo.
This court will not review the ultimate decision of the Board to
grant or deny parole, as AnseImo has no liberty interest in release on
parole. Morrow, 127 Nev. at 271-72,
255 P.3d at 228. Nonetheless, NRS
213.140(1) clearly provides that "the Board shall consider" eligible inmates
for parole. Therefore, while AnseImo has no due process right in the grant
of parole itself, Nevada law clearly confers a right to be "consider [ed1" for
parole.
In evaluating whether the Board's error impacted Anse1mo's
right to be considered for parole, we find the South Carolina case of Cooper
v. South Carolina Department of Probation, Parole & Pardon Services, 661
S.E.2d 106 (S.C. 2008), to be instructive. In Cooper, the South Carolina
Supreme Court examined a case in which an inmate argued that the
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South Carolina Parole Board's failure to consider all statutorily mandated
criteria constituted an impermissible infringement on the inmate's
statutory right to be reviewed by the Board. Id. at 110. 1
While noting that it appeared the Board had denied parole for
entirely permissible reasons, the court observed:
If 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.
Undoubtedly, the Parole Board is the sole
authority with respect to decisions regarding the
grant or denial of parole. However, the
Legislature created this Board to operate within
certain parameters. We do not believe the
Legislature established the Board and intended
for it to render decisions without any means of
accountability.
Id. at 111. Accordingly, the court determined the inmate was entitled to
relief in the form of a new parole hearing. Id. at 112.
While not factually identical, Cooper indicates that while the
decision to grant or deny parole is not generally reviewable, the Board is
still obligated to act within established parameters. Notably, the error in
this case is not related to the weight or sufficiency of the evidence
underlying any of the criteria relevant to the decision to deny parole.
Rather, the Board's internal guidelines clearly indicated that the
aggravator set forth in NAC 213.518(2)(k) should not be used in those
'As in Nevada, parole in South Carolina is a privilege, not a right.
Cooper, 661 S.E.2d at 110. However, inmates who are eligible for parole
are entitled by statute to a yearly review by the parole board. S.C. Code
Ann. § 24-21-620 (2007).
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cases where the inmate is serving a life sentence for murder. Notably, the
decision of the Board was extremely close, with the three members voting
to grant parole. Under these limited circumstances, we conclude that the
Board's consideration of the inapplicable aggravator in NAC 213.518(2)(k)
infringed upon Anselmo's statutory right to receive proper consideration
for parole. Given the Board's clear error, we conclude that extraordinary
relief is necessary in this instance.
CONCLUSION
Parole is an act of grace in Nevada, and this court will not
disturb a decision to deny parole for any reason authorized by statute.
Nonetheless, eligible Nevada inmates have a statutory right to be
considered for parole by the Board This court cannot say that an inmate
receives proper consideration when the Board's decision is based in part
on an inapplicable aggravating factor.
Therefore, we grant Anselmo's petition for extraordinary
relief, and direct the clerk of this court to issue a writ of mandamus
instructing the Board to vacate its November 17, 2014, denial of parole
and conduct a new parole hearing in which NAC 213.518(2)(k) is not
applied.
J.
Stiglich
We concur:
°21-4721,
esty
Parraguirre
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