Flowers v. Traughber

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE

MELVIN J. FLOWERS, )
)
Petitioner/Appellant, ) Davidson Chancery No. 95-3632-I
)
VS. ) Appeal No. 01A01-9609-CH-00392
)
CHARLES TRAUGHBER, et al, )
)
Respondents/Appellees. )

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

FILED
March 27, 1997

MELVIN J. FLOWERS, pro se Cecil W. Crowson
Nashville, Tennessee Appellate Court Clerk

CHARLES W. BURSON
Attorney General & Reporter
PATRICIA C. KUSSMANN
Assistant Attorney General
Nashville, Tennessee
Attorneys for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
 In this action, Melvin Flowers (“Flowers”) filed a petition for writ of certiorari or,

alternatively, a writ of habeas corpus in the chancery court seeking judicial review of the

Parole Board’s (“Board”) decision to postpone his parole eligibility hearing until he received

an updated psychological evaluation. The chancery court denied Flowers’ petition for writ

of certiorari and held that the Board did not act arbitrarily, capriciously or in excess of its

jurisdiction in making its decision to delay Flowers’ parole eligibility hearing. Flowers has

appealed the judgment of the chancery court, arguing that his constitutional rights were

violated by the Board’s decision to defer his parole hearing. For the reasons stated

hereafter, we affirm the judgment of the chancery court.

FACTS

In 1971, Flowers was charged with the murder of his first wife in Alabama. An

Alabama Grand Jury returned a no true bill and did not indict Flowers for this offense. In

1988, Flowers was charged with the murder of his second wife in Tennessee. On

September 25, 1989, Flowers was convicted of second degree murder for the murder of

his second wife and sentenced to twelve years in prison.

When Flowers first became eligible for parole in September 1991, Assistant District

Attorney Edward Wilson, wrote a letter to the Board protesting the early release of Flowers

on parole. Mr. Wilson’s letter states in part as follows:

Mr. Flowers was convicted for the offense
of second degree murder out of the Criminal
Court for Sullivan County on September 25,
1989. The victim in this case was his wife. Mr.
Flowers’ first wife died from gunshot wounds
under mysterious circumstances several years
prior to the present incident for which he is
serving a sentence.
At the time of the murder of his second
wife, he and his wife were talking to their
Catholic Priest on the phone, and the priest
heard what he described as being gunshot(s)
over the phone, and the phone was hung up.
The investigation also revealed that at the time
of the murdering of his wife the couple’s small
child was present in the home.
Due to the mysterious circumstances
involved at the death of Mr. Flowers’ first wife

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 and taking into consideration the events and
facts of the murder of his second wife, the State
feels that a confinement period of approximately
two years is much too lenient when you consider
the value of human life. Therefore, the District
Attorney is strongly opposed to the granting of
any early release to Mr. Flowers.

Flowers was denied parole in September 1991 and in November 1993 due to the

seriousness of his offense, his high risk to society and his need to participate in a mental

health program. Flowers was scheduled to come before the Board again in November

1995, yet the Board notified Flowers on October 5, 1995 that his parole hearing would be

continued so that Flowers could first undergo a psychological examination.

Due to the Board’s continuance of his parole hearing, Flowers filed a petition for writ

of certiorari or, alternatively, for a writ of habeas corpus in the chancery court on November

17, 1995. In his petition, Flowers argued that his due process and equal protection rights

had been violated by the Board’s decision to postpone his parole hearing and by the

Board’s alleged reliance upon the aforementioned letter from the district attorney’s office

in determining Flower’s parole eligibility. Flowers contends that the Board relied upon false

assertions contained in the letter in making their decision postpone his parole hearing.1

Flowers also argued that the delay of his parole eligibility hearing constitutes cruel and

unusual punishment.

Flowers filed a motion for a preliminary injunction and for a permanent or temporary

restraining order seeking an order from the chancery court directing the Board and the

Department of Correction to eliminate all information in their files implicating Flowers for

the murder of his first wife and directing the Board to schedule a parole hearing for him.

Flowers then filed a “motion for order to be brought to court” wherein he sought a court

order requiring his presence during the hearing on his motion for injunctive relief.

1
Flowers asserts that because an Alabama grand jury returned a no true bill regarding the charges
brought against him for the murder of his first wife, all information implicating him for the death of his first
wife s hou ld be e xpu nge d from his records w ith the B oard .

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 Flowers thereafter filed a petition for writ of supersedeas and again petitioned the

court for an order directing the Board to expunge from their records all information

implicating Flowers for the murder of his first wife and for an order directing the Board to

schedule a parole hearing for him.

The Respondents filed a motion to dismiss Flowers’ petition for failure to state a

claim upon which relief can be granted.2 In response, Flowers filed a “motion to grant writ

of certiorari and deny respondent motion to dismiss” and a “motion to be brought to court”

wherein he sought a court order requiring his presence during the hearing on the

Respondents’ motion to dismiss.

The chancery court denied Flowers’ request for a temporary restraining order or

preliminary injunction holding that Flowers failed to show that he would suffer irreparable

harm prior to a decision on the merits of his case. The chancery court also denied Flowers’

petition for a writ of supersedeas holding that a writ of supersedeas was an inappropriate

remedy for the type of relief that Flowers requested. The chancery court thereafter granted

the Respondents’ motion to dismiss and held that the Board did not act arbitrarily,

capriciously or in excess of its jurisdiction when it postponed Flowers’ parole eligibility

hearing until he received an updated psychological evaluation.

After the Board once again denied Flowers release on parole on February 6, 1996,

Flowers filed a “motion to reconsider dismissal of his writ of certiorari due to a

supplemental issue” and argued that the Board’s decision to deny him parole violated his

equal protection and due process rights under the constitution. The chancery court denied

Flowers’ motion for reconsideration.

Flowers thereafter filed a petition for “writ of certiorari on supplemental issues,”

seeking review of the Board’s decision to decline to release him on parole. Flowers next

filed a motion for summary judgment, seeking a court order directing the Board to release

2
Flow ers nam ed m em bers of the Boa rd of Paroles and the warde n of the Nash ville Com m unity
Service Center as Defendants. They are also described in the pleadings as Respondents.

4
him on parole. Flowers then filed a second motion for a preliminary injunction and

temporary restraining order and again sought an order from the chancery court directing

the Board to release him on parole.

After filing the foregoing motions, Flowers filed a motion for appointment of counsel

and requested that the court appoint an attorney to represent him during the hearings on

these motions. Flowers subsequently filed a motion requesting the court to order discovery.

Because the chancery court had previously dismissed Flowers’ action and had

previously denied Flowers’ motion to reconsider, the chancery court denied Flowers’

motion for a preliminary injunction and temporary restraining order, motion to compel

discovery and motion for summary judgment and held that Flowers’ no longer had an

action pending before the court.

Flowers appealed the judgment of the chancery court and filed a notice designating

his issues on appeal. The Respondents then objected to two of the issues that Flowers

designated on appeal: class certification and prison overcrowding. The chancery court

thereupon issued an order denying Flowers request to supplement the record to include

these two additional issues that were not properly raised in the chancery court.

LAW

The issues before this Court are as follows:

1) Whether the chancery court erred in holding that the Board’s decision to

postpone Flowers’ parole eligibility hearing until he received an updated psychological

examination did not deny Flowers his constitutional right to due process;

2) Whether the chancery court erred in holding that the Board’s decision to

postpone Flowers’ parole eligibility hearing until he received an updated psychological

examination did not deny Flowers his constitutional right to equal protection;

3) Whether the chancery court erred in holding that the Board’s application of

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amended Board policy rules, which became effective over two years after Flowers’

conviction, did not violate the prohibitions under the Ex Post Facto Clause;

4) Whether the chancery court erred in denying Flowers’ motion to expunge from

his record with the Board all information implicating him for the death of his first wife?

5) Whether the chancery court erred in denying Flowers’ motion for appointment of

counsel;

6) Whether the chancery court erred in denying Flowers the opportunity to be

present in court;

7) Whether the chancery court erred in denying Flowers’ request to supplement the

record to include two additional issues not properly raised in the chancery court; and

8) Whether the chancery court erred in dismissing Flowers’ petition for writ of

certiorari holding that the Board did not act arbitrarily, capriciously or in excess of its

jurisdiction in making its decision to delay Flowers’ parole eligibility hearing.

The scope of review under a common law writ of certiorari is very narrow. Powell

v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). It covers only

an inquiry into whether the Board has exceeded its jurisdiction or is acting illegally,

fraudulently or arbitrarily. Foster v. First National Bank, 430 S.W.2d 450, 451 (Tenn.

1968); Hoover Motor Exp. Co., Inc. v. Railroad. & Pub. Util. Comm’n, 261 S.W.2d 233, 238

(Tenn. 1953); Fite v. State, 925 S.W.2d 543, 544 (Tenn. Ct. App. 1996); Powell, 879

S.W.2d at 873; Yokley v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). It is not the

correctness of the decision that is subject to judicial review; rather, it is the manner in which

the decision is reached. State ex rel McMorrough v. Hunt, 192 S.W. 931 (Tenn. 1917);

Powell, 879 S.W.2d at 873; Yokley, 632 S.W.2d at 126. If the Board reached its decision

in a constitutional or lawful manner, then the decision will not be subject to judicial review.

Id.

Flowers argues that he was denied due process by the Board’s decision to postpone

his parole eligibility hearing until he received an updated psychological examination. In

determining whether a due process violation has occurred, the existence of a protected

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right must be the threshold determination. Howard v. Grinage, 82 F.3d 1343, 1349-50 (6th

Cir. 1996). In the absence of a protected right, a plaintiff fails to state a due process claim.

Id.

T. C A. § 40-35-503(b)(1996 Supp.) provides as follows:

(b) Release on parole is a privilege and not a right, and no inmate
convicted shall be granted parole if the board finds that:
(1) There is a substantial risk that the defendant will not conform to the
conditions of the release program;
(2) The release from custody at the time would depreciate the seriousness
of the crime of which the defendant stands convicted or promote disrespect
for the law;
(3) The release from custody at the time would have a substantially adverse
effect on institutional discipline; or
(4) The defendant's continued correctional treatment, medical care or
vocational or other training in the institution will substantially enhance the
defendant's capacity to lead a law-abiding life when given release status at
a later time.

The legislative grant of probation is therefore a privilege and cannot be demanded as a

right. State v. Correll, 626 S.W.2d 699, 701 (Tenn. 1982); Hooper v. State, 297 S.W.2d

78, 81 (Tenn. 1956); Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn. Ct. App. 1995) .

The Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7(1979), stated that there is no inherent right of a convicted

individual to be conditionally released before the expiration of a valid sentence. “[G]iven

a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”

Id., quoting Meachum v. Fano, 427 U.S. 215, 224 (1976). Furthermore, there is no

constitutional guarantee that the administrative decisions of a parole board will result in

error-free determinations. Greenholtz, 442 U.S. at 7.

Similarly, our Court has recently stated that the “mere possibility of parole is not a

constitutionally protected liberty interest.“ Kaylor, 912 S.W.2d at 732, citing Greenholtz,

442 U.S. at 7; See also, Wright v. Trammell, 810 F.2d 589, 591 (6th Cir. 1987) (holding

that under the rules of the Tennessee Board of Parole, inmates do not have a

constitutionally protected liberty interest in the expectancy of release upon parole and due

process is not required in connection with the Parole Board’s determination of whether to

7
grant parole to an inmate). Therefore, because Flowers does not have a statutory or

constitutionally protected right to release on parole before the expiration of his twelve year

sentence, Flowers’ due process rights were not violated by the Board’s decision to delay

Flowers’ parole hearing until he received an updated psychological examination.

Flowers also claims that his equal protection rights were violated by the Board’s

decision to delay his parole eligibility hearing until he received an updated psychological

evaluation. The concept of equal protection espoused by the federal and state constitutions

guarantees that all persons similarly situated shall be treated alike. State v. Tester, 879

S.W.2d 823, 828 (Tenn. 1994); Tennessee Small School Systems v. McWherter, 851

S.W.2d 139, 153 (Tenn. 1993). Equal protection analysis requires strict scrutiny of a

legislative classification when the classification interferes with the exercise of a

“fundamental right” (e.g., right to marry, right to vote or right of privacy) or when the

classification operates to the peculiar disadvantage of a “suspect class” (e.g., alienage or

race). State v. Tester, 879 S.W.2d at 828; Harrison v. Schrader, 569 S.W.2d 822, 825

(Tenn. 1978); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16(1973);

Baker v. Carr, 369 U.S. 186 (1962) (right to vote); Griswold v. Connecticut, 381 U.S. 479

(1965) (right to privacy); Shapiro v. Thompson, 394 U.S. 618 (1969) (right to interstate

travel). The right to parole, however, is not a fundamental right. Although the right to

personal liberty is fundamental, that right is not implicated after a person is convicted of a

crime and the only issue is the manner of service of the sentence imposed. Tester, 879

S.W.2d at 828; See also, State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn.

Crim. App. 1992). Furthermore, the Tennessee Supreme Court has previously held that

the right to probation is a privilege and not a right. Tester, 879 S.W.2d at 828; State v.

Correll, 626 S.W.2d 699, 701 (Tenn. 1982); See also, Hooper v. State, 297 S.W.2d 78, 81

(Tenn. 1956).

Where the right infringed upon is not a fundamental right, a reduced level of scrutiny

applies. Tester, 879 S.W.2d at 828-30. Accordingly, we will apply the rational basis test

in analyzing Flowers’ equal protection challenge. Under this standard, an equal protection

8
challenge must fail if some reasonable basis can be found for the classification, or if any

state of facts may reasonably be conceived to justify the classification. Tester, 879 S.W.2d

at 828; Tennessee Small School Systems v. McWherter, 851 S.W.2d at 153; Harrison v.

Schrader, 569 S.W.2d at 825.

Our legislature has given the Board the discretion in determining when and under

what conditions prisoners serving felony sentences of more than two years may be

released on parole. See T.C.A. § 40-28-118(a)(1990); T.C.A. § 40-35-504(a)(1990). See

also, T.C.A. § 40-22-109(1990). Because it is reasonable for our legislature to clothe the

Board with the authority to determine which prisoners serving valid sentences will be

released on parole, we conclude that Flowers’ equal protection challenge is without merit.

Flowers next asserts that the Board breached the prohibitions under the Ex Post

Facto Clause by applying Board policy rules, which became effective over two years after

Flowers’ conviction, to determine the scheduling of Flowers’ parole eligibility hearings.

Flowers contends that because the Board could decrease the frequency of his parole

eligibility hearings under the more recent Board policy rules, his rights under the Ex Post

Facto Clause have been violated.

Both the state and federal constitutions contain prohibitions against ex post facto

laws. U.S. Const. Art. I, § 10, cl. 1; Tenn. Const. Art. I, § 11. The United States Supreme

Court and the Tennessee Supreme Court have adopted complementary constructions of

these provisions. Kaylor, 912 S.W.2d at 731. The United States Supreme Court has

recently stated that the Ex Post Facto Clause is “aimed at laws that ‘retroactively alter the

definition of crimes or increase the punishment for criminal acts.’” Id., quoting California

Dep’t of Corrections v. Morales, 115 S.Ct. 1597, 1601 (1995). The Tennessee Supreme

has likewise stated that the critical question in an ex post facto analysis is “whether the law

changes the punishment to the defendant’s disadvantage, or inflicts a greater punishment

than the law allowed when the offense occurred.” State v. Pearson, 858 S.W.2d 879, 883

(Tenn. 1993).

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 Both the federal and state precedents establish that two elements must be present

in order for a criminal or penal law to run afoul of the Ex Post Facto Clause. First, the law

must apply retrospectively to events occurring before its enactment. Kaylor, 912 S.W.2d

at 732; Weaver v. Graham, 450 U.S. 24, 28 (1980); Lindsey v. Washington, 301 U.S. 397,

401 (1937). Second, the law must disadvantage the offender affected by it. Id. The

courts, however, have resisted devising a bright line test for analyzing ex post facto claims.

Morales, 115 S.Ct. at 1603. Determinations of these claims are based on a case-by-case

basis. Kaylor, 912 S.W.2d at 732. The outcome depends on the significance of the right

involved and the significance of the impairment. Id.

In Dobbert v. Florida, 432 U.S. 282, 293 (1977), the Supreme Court held that the

prohibition of ex post facto laws does not extend to every change of law that “may work to

the disadvantage of a defendant.” Instead, it is intended to secure “substantive personal

rights” from retroactive deprivation and does not “limit the legislative control of remedies

and modes of procedure which do not affect matters of substance.” Id.

The Court in Portley v. Grossman, 444 U.S. 1311 (1980), was faced with an issue

similar to the one in the present case. In Portley, the appellant contended that the parole

commission violated the constitutional prohibition against ex post facto laws by utilizing

administrative guidelines, which had changed from those in effect at the time the appellant

was sentenced, in determining the appellant’s eligibility for parole. 444 U.S. at 1312. In

holding that the parole commission did not violate the prohibition against ex post facto

laws, the Court stated as follows:

[t]he guidelines operate only to provide a framework for the
Commission’s exercise of its statutory discretion. The terms of
the sentence originally imposed have in no way been altered.
. . . The guidelines, therefore, neither deprive applicant of any
pre-existing right nor enhance the punishment imposed. The
change in guidelines assisting the Commission in the exercise
of its discretion is in the nature of a procedural change found
permissible in Dobbert, supra.

Portley v. Grossman, 444 U.S. at 1312-1313.

In addition, the Supreme Court has recently addressed this same issue in California

10
Dep’t of Corrections v. Morales, 115 S.Ct. 1597 (1995). In 1981, the State of California

amended its parole procedures to allow the Board of Prison Terms to decrease the

frequency of parole suitability hearings under certain circumstances. In Morales, the Court

was faced with the question of whether the application of this amendment to prisoners who

committed their crimes before it was enacted violated the Ex Post Facto Clause. 115 S.Ct

at 1599. In holding that the amendment’s application to prisoners who committed their

crimes before it was enacted did not violate the Ex Post Facto Clause, the Court stated as

follows:

[t]he amendment did not increase the “punishment” attached
to respondent’s crime. It left untouched his indeterminate
sentence and the substantive formula for securing any
reductions to the sentencing range. By introducing the
possibility that the board would not have to hold another parole
hearing in the year or two after the initial hearing, the
amendment simply alters the method to be followed in fixing a
parole release date under identical substantive standards.
....
Under respondent’s expansive view, the Clause would forbid
any legislative change that has any conceivable risk of
affecting a prisoner’s punishment.
....
Respondent’s approach would require that we invalidate any
of a number of minor (and perhaps inevitable) mechanical
changes that might produce some remote risk of impact on a
prisoner’s expected term of confinement. Under respondent’s
approach, the judiciary would be charged with the
micromanagement of an endless array of legislative
adjustments to parole and sentencing procedures, including
such innocuous adjustments as changes to the membership of
the Board of Prison Terms, restrictions on the hours that
prisoners may use the prison law library, reductions in the
duration of the parole hearing, restrictions on the time allotted
for a convicted defendant’s right of allocution before a
sentencing judge, and page limitations on a defendant’s
objections to presentence reports or on documents seeking a
pardon from the governor. These and countless other
changes might create some speculative, attenuated risk of
affecting a prisoner’s actual term of confinement by making it
more difficult for him to make a persuasive case for early
release, but that fact alone cannot end the matter for ex post
facto purposes.

Morales, 115 S.Ct. at 1598-1599, 1602-1603.

Because application of the amended Board policy rules to determine the scheduling

of Flowers’ parole eligibility hearings creates only the most speculative and attenuated

possibility of producing the prohibited effect of increasing the measure of Flowers’

11
punishment, we conclude that the Board’s use of the amended policy rules to determine

the scheduling of Flowers’ parole hearings does not violate the prohibitions under the Ex

Post Facto Clause.

Flowers further contends that the chancery court erred in not ordering the Board to

expunge from their records all information implicating Flowers for the murder of his first

wife. Because Flowers was formally charged with the crime of killing his first wife but was

not indicted for this offense, Flowers argues that such information should be eliminated

from the Board’s files. In support of his argument, Flowers relies upon T.C.A. § 40-32-

101(1996 Supp.). Although T.C.A. § 40-32-101 provides for the destruction of all “public

records” of a person who was charged with a crime but whose charges were later

dismissed, it specifically excludes from the definition of public records the following:

arrest histories, investigative reports, intelligence information
of law enforcement agencies, or files of district attorneys
general that are maintained as confidential records for law
enforcement purposes and are not open for inspection by
members of the public.

T.C.A. § 40-32-101(b)(1996 Supp.).

The statute, therefore, expressly permits law enforcement agencies to maintain

information in their files regarding individuals who have been charged with specific crimes.

Thus, the chancery court did not err in denying Flowers’ request to order the Board to

expunge from their records all information implicating Flowers for the murder of his first

wife.

Next, Flowers argues that the chancery court erred in not appointing an attorney to

represent him. The Unites States Supreme Court in Douglas v. People of State of

California, 372 U.S. 353 (1963), held that the Fourteenth Amendment guarantees the right

to counsel to an indigent defendant through the first appeal as of right. Once the process

goes beyond the trial and the direct appeal as of right stage, the state has no duty to

provide an attorney for the indigent defendant. Ross v. Moffitt, 417 U.S. 600, 616 (1974);

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Dankert v. Wharton, 733 F.2d 1537,

12
1538 (11th Cir. 1984). Accordingly, the federal constitution does not require that the states

provide an attorney to an indigent post-conviction petitioner, even in capital cases. Murray

v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. at 554-555; Ross v.

Moffitt, 417 U.S. at 616; See also Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Furthermore, it is a well-settled in Tennessee that the scope of the right to counsel is

limited and applies only through the first appeal as of right. House v. State, 911 S.W.2d

705 (Tenn. 1995). It does not apply to post-conviction proceedings. Id; Davis v. State, 912

S.W.2d 689, 696 (Tenn. 1995); State v. Oates, 698 S.W.2d 79, 80-81 (Tenn. Cr. App.

1985); State v. Wilson, 667 S.W.2d 113, 114 (Tenn. Cr. App. 1983).

Because there is no right to counsel under either the federal or the state

constitution beyond a criminal defendant’s first appeal as of right, the chancery court did

not err in failing to appoint an attorney for Flowers in his post-conviction action in chancery

court.

Flowers further contends that the chancery court erred in denying his motion to be

present in court during the hearing of his case. We note, however, that an individual’s

Sixth Amendment right to be present at all stages of the trial does not extend to post-

conviction proceedings. Turner v. State, 580 S.W.2d 797, 799 (Tenn. Crim App. 1979).

A post-conviction proceeding is not a trial nor an extension of it; rather, a post-conviction

action is a wholly collateral lawsuit. Id. Flowers presence, therefore, would have made no

difference to the outcome of this action. Thus, the chancery court did not err in denying

Flowers’ motion to be present in court during the hearing of his case.

Flowers also argues that the chancery court erred in denying Flowers’ request to

supplement the record to include two additional issues which were not properly raised in

the chancery court. It has long been the rule that an issue not raised or litigated in the trial

court is waived. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); T.R.A.P. 36(a).

A party may not raise an issue for the first time on appeal. Id; State v. Turner, 919 S.W.2d

346, 356-57 (Tenn. Cr. App. 1995); Jones v. State, 915 S.W.2d 1, 2-3 (Tenn. Crim. App.

13
1995). Thus, the chancery court did not err in denying Flowers’ request to supplement the

record to include additional issues on appeal.

Finally, Flowers contends that the chancery court erred in dismissing his petition for

writ of certiorari holding that the Board did not act arbitrarily, capriciously or in excess of

its jurisdiction in making its decision to delay Flowers’ parole eligibility hearing. Because

the Tennessee legislature has given the Board the discretion in determining when and

under what conditions prisoners serving felony sentences of more that two years may be

released on parole and because the Board did not act illegally, fraudulently, arbitrarily or

in excess of its jurisdiction when it decided to postpone Flowers’ parole hearing until he

received an updated psychological evaluation, the chancery court did not err in dismissing

Flowers’ petition for writ of certiorari.

The decision of the chancery court is hereby affirmed. Costs on appeal are taxed

to Flowers for which execution may issue if necessary.

HIGHERS, J.

CONCUR:

FARMER, J.

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LILLARD, J.

15