ORDERS:
ORDER
Grievance No. PCI-0563-00
This appeal is before the Administrative Law Judge Division ("Division") pursuant to the Notice of Appeal filed by Charles
L. Stevens, Jr. ("Appellant") on May 9, 2001. Appellant alleges in his grievance filed with the Department of Corrections
("DOC") that the South Carolina Department of Probation, Parole and Pardon Services ("DPPPS") has created an "ex post
facto law" which provides for retroactive application which is in violation of his constitutional rights.
This case has a tortured history and the following sequence of events, as posited by Appellant, may help move it to some
resolution:
- In 1986, Appellant was indicted (86-GS-24-853) for murder in a term of court at Greenwood, South Carolina. The date
of the offense was October 25, 1986. Appellant requested a jury trial and was found guilty and sentenced to life in
prison; however, upon the service of twenty years he would be eligible for parole.
- Thereafter, Appellant has been in the custody of the DOC.
- Subsequently, Appellant was advised in letter by the DOC that he had a previous violent conviction (armed robbery) in
1971 (indictment 87-GS-23-3117) and that he was "non-eligible" for parole because the 1986 Omnibus Criminal Justice
Improvements Act prevented such.
- In 1994 Appellant attempted to clarify his status with the Classification section of the DOC.
- On August 9, 1999 while in custody of the DOC at the Perry Correctional Institution, Appellant requested a transfer to a
county jail.
- Subsequently, he attempted to file an application for post conviction relief which was denied (99-CP-24-1010).
- On August 3, 2000, the South Carolina Supreme Court remanded the post conviction matter to circuit court for a
determination whether the relief sought by Appellant should be sought with either the DOC or the DPPPS. The court
cited Jernigan v. State, 304 S.C. 256, 531 S.E.2d 507 (2000) and Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742
(2000).
- The Hon. Gary E. Clary heard the matter on remand on March 12, 2001 in Greenwood County. Appellant was
represented by Douglas Bell, Esq. and the State of South Carolina was represented by Howard L. Steinberg, Assistant
Attorney General. Mr. Steinberg sought for the case to be "submitted to the DOC because they have a procedure to deal
with reviews and appeals of administrative decisions." Further, Mr. Steinberg advised the court that the General
Counsel for the DPPPS "agrees that DPPPS does not offer the necessary reviewing procedure for this matter." The
court noted that Appellant had no objection to the case being remanded to the DOC.
- The court found that Applicant was "entitled to file a claim to be considered parole eligible and his claim may be
appealed through the procedures outlined in Al-Shabazz, supra."
- Subsequently, the DOC complied with the Order of Judge Clary and advised the Appellant on April 24, 2001 that if he
had not filed a grievance previously, to file one within fifteen days of the notice. Further, they advised Appellant that
he had already filed the Step 1, then he must file the Step 2 within five days. They also advised Appellant that if he had
already received a final agency decision from the DOC, that he had thirty days to file a Notice of Appeal with the
Division.
- Appellant had previously filed a Step 1 with the DOC. In its final agency decision dated April 19, 2000, the DOC
stated that "Per SCDC Policy Ga.01-12 (OP) Inmate Grievance System, Page 4, Section d (3) Parole Board decisions are
considered an issue outside of the control of the Department. The Parole Board is a separate entity. Therefore, you need
to address your problem with them."
- On May 3, 2000, in response to further inquiry by the Appellant, the DOC contacted Mr. Stephen Sutherland, an
employee with the DPPPS, concerning the parole date for Appellant. Mr. Sutherland opined that Appellant was
"deemed a subsequent violent offender in 1995. This means you have two (2) violent offenses. These offenses are
Murder and Armed Robbery. Therefore you are not eligible for parole."
- Appellant filed its Notice of Appeal of the DOC's final agency decision with the Division on May 9, 2001. On October
8, 2001, the DOC filed a Motion to Dismiss with the Division, alleging that it does not have jurisdiction to hear the
parole eligibility request made by Appellant, but rather that jurisdiction over parole eligibility determinations is vested in
the DPPPS.
DISCUSSION
Jurisdiction
In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the South Carolina Supreme Court held that if an inmate
raises a "non-collateral matter" with the DOC, then the state Administrative Procedures Act ("APA") applies. Further, it
held that Al-Shabazz applied to all Post Conviction Relief ("PCR") actions pending at the time of the filing of Al-Shabazz
in which the DOC had decided a "non-collateral" matter and the inmate had not had an opportunity to be heard.
Subsequently, the court held that an ex post facto claim is also considered a "non-collateral" matter and the appropriate
agency must make final agency decisions when an inmate raises such a claim. Jernigan v. State, 304 S.C. 256, 531 S.E.2d
507 (2000).
DOC or DPPPS
The circuit court, pursuant to the remand from the Supreme Court, was mandated to send this case either to the DOC or to
the DPPPS. Based upon the agreement of counsel, the court sent it to DOC. However, in its final decision, DOC held that
it does not have jurisdiction to make any determinations regarding Appellant's parole eligibility, but rather that any such
determinations are properly within the jurisdiction of the DPPPS.
Administrative agencies, such as the DOC and DPPPS, are creatures of statute, and they must find within their enabling
statutes the basis for the exercise of any authority which they claim. Calhoun Life Ins. Co. v. Gambrell, 245 S.C. 406, 140
S.E.2d 774 (1965). Furthermore, administrative agencies are held to possess only such powers as are expressly conferred
or necessarily implied for them to effectively fulfill the duties with which they are charged. Captain's Quarters Motor Inn,
Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991). Any reasonable doubt of the existence in the agency of
any particular power should ordinarily be resolved against its exercise of the power. Piedmont & Northern Ry. Co. v.
Scott, 202 S.C. 207, 24 S.E.2d 353 (1943).
The DOC was created pursuant to S. C. Code Ann. § 24-1-30 (1976) as an administrative agency to implement and carry
out the policy of the State of South Carolina with respect to its prison system. It is governed by a director appointed by the
Governor who is vested with the exclusive management and control of the prison system and who has authority to make
and promulgate rules and regulations, including those governing the humane treatment, training, and discipline of
prisoners. See S.C. Code Ann. §§ 24-1-40, 24-1-90, 24-1-130 and 24-1-140. However, nowhere in its enabling statutes is
the DOC granted the authority to hear matters concerning paroles and pardons.
The DPPPS board, on the other hand, is mandated by statute to hold regular meetings to carry out its duties and authorizes
the chairman to direct the members to meet as three-member panels to hear matters relating to paroles and pardons. Any
unanimous vote of the members meeting in a three member panel shall be considered the final decision of the board and the
panel may issue an order of parole with the same force and effect of an order issued by the full board. S.C. Code Ann. §
24-21-30 (Supp. 2001). The board is vested with the responsibility of determining if and when a prisoner meets the
prerequisites of parole eligibility, pursuant to Section 24-21-640. State v. McKay, 300 S.C. 113, 386 S.E.2d 623 (1989).
Based upon a review of the applicable statutes, I conclude that the DOC lacks subject matter jurisdiction to make a
determination concerning Appellant's parole eligibility. Instead, that authority is vested solely in the DPPPS board.
Accordingly, the final decision of the DOC as to its lack of jurisdiction to hear this matter is hereby affirmed.
Ex post facto Violations
Assuming arguendo that the DOC had the authority to act on Appellant's claim, this appeal must nevertheless fail for the
following reasons.
An ex post facto violation occurs when a change in the law retroactively alters the definition of a crime or increases the
punishment for a crime. Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); California Dep't of
Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1955); Farris v. State, 334 S.C. 21, 511 S.E.2d
688 (1999). The law existing at the time of the offense determines whether an increase of punishment constitutes an ex post
facto violation. Elmore v. State, 305 S.C. 456, 409 S.E.2d 397 (1991). In this case, the gist of Appellant's claim is that the
1986 Omnibus Criminal Justice Improvements Act has been improperly applied to him so as to increase the punishment for
his crime and to change the definition of his armed robbery conviction to that of a "violent crime."
Appellant was convicted of a murder which took place on October 25, 1986. At the time of his offense and conviction,
the1986 Omnibus Criminal Justice Improvements Act (Act 462), which became effective June 3, 1986, was already in
effect. Act 462 provided that certain crimes, including the crimes of murder and armed robbery, were "violent crimes" for
purposes of definition under South Carolina law. S.C. Code Ann. § 16-1-60. Act 462 further amended S.C. Code Ann. §
24-21-640 to provide that, as of June 3,1986, prisoners convicted of any violent crimes, as enumerated in S.C. Code Ann.
§ 16-1-60, and who have a prior conviction for one of the specified crimes, would not be eligible for parole consideration
on the recent conviction and must complete service of their entire sentences. (1) Appellant was given a life sentence on the
murder conviction, with the provision that after serving twenty years, he could be considered for parole. However,
subsequent to Appellant's incarceration, the DPPPS learned of another violent crime, i.e. armed robbery, for which
Appellant had a prior conviction. DPPPS then determined, based upon its interpretation of Section 24-21-640, that
Appellant would never be eligible for parole because of his prior conviction.
The South Carolina Supreme Court has addressed a claim similar to the Appellant's claim in this case. In Phillips v. State,
331 S.C. 482, 504 S.E.2d 111 (1998), the respondent committed several crimes in 1986 and 1987, including four counts of
first degree burglary, all committed after June 3, 1986, to which he pled guilty. The respondent also had a prior conviction
in 1982 for armed robbery. Based on Section 24-21-640, the respondent was denied parole eligibility on the 1987 burglary
pleas because of his 1982 armed robbery conviction. He brought a post-conviction relief action, claiming that his ex post
facto rights were violated as a result of the enactment of Section 16-1-60 and the amendments to Section 24-21-640, and
their application to his case. The circuit judge granted the respondent's petition for post-conviction relief. The Supreme
Court reversed the order of the circuit court, holding that "[i]t is not a violation of the ex post facto clause for the legislature
to enhance punishment for a later offense based on a prior conviction, even though the enhancement provision was not in
effect at the time of the prior offense." Id. at 112 (emphasis added). Even though Act 462 had not been enacted at the time
of Appellant's armed robbery offense and conviction in 1971, it was in effect when Appellant committed murder in 1986.
Therefore, it is not a violation of the ex post facto clause to deny Appellant eligibility for parole based on his prior armed
robbery conviction. (2)
For all the foregoing reasons, it is hereby
ORDERED that the final agency decision of the Department of Corrections is AFFIRMED.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
April 3, 2002
Columbia, South Carolina
1. Although Section 24-21-640 has been amended several times since 1986, the language prohibiting individuals with a
prior conviction for a "violent crime" from being considered for parole after a subsequent conviction for such a crime has
remained intact.
2. Appellant asserts that Section 16-1-60 was amended, effective January 1, 1994, to provide that "[f]or a person to be
considered guilty of a violent crime, the offense must be defined as a violent crime. . . at the time of the commission of the
crime." However, this amendment was repealed effective January 15, 1995. Moreover, the Supreme Court in Phillips
noted the existence of the amendment, and declined to comment on its effect on persons committing offenses during the
time the amendment was effective. Phillips, 504 S.E.2d at 112 n.2. Since, at the time Appellant committed murder, the
amendment had not been enacted, the amendment has no effect on Appellant's claim. |