COLES (BRENT) VS. BISBEE , 2018 NV 62 ( 2018 )

134 Nev., Advance Opinion &Z,
IN THE SUPREME COURT OF THE STATE OF NEVADA
BRENT A. COLES, No. 74707
Appellant,
vs.
CONNIE S. BISBEE, CHAIRMAN; THE
FILED
NEVADA BOARD OF PAROLE AUG 0 2 2018
COMMISSIONERS; THE NEVADA
DEPARTMENT OF CORRECTIONS;
AND THE STATE OF NEVADA, BY
Respondents.
Pro se appeal from a district court order dismissing a petition
for declaratory relief. First Judicial District Court, Carson City; James E.
Wilson, Judge.
Affirmed.
Brent A. Coles
in Pro Se.
Adam Paul Laxalt, Attorney General, and Kathleen Brady, Deputy
Attorney General, Carson City,
for Respondents.
BEFORE PICKERING, GIBBONS and HARDESTY, JJ.
OPINION
PER CURIAM:
In this appeal, we address whether the Parole Board's use of •
the Static-99R recidivism risk assessment complies with the relevant
statutory provisions governing parole review for prisoners convicted of
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sexual offenses, as well as whether changes to the statutory scheme
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regarding parole review violate the Ex Post Facto Clause of the United
States Constitution. We conclude that the use of the Static-99R assessment
comports with NRS 213.1214's assessment requirements and that changes
to parole procedures do not constitute an ex post facto violation unless they
create a significant risk of prolonging the inmate's incarceration, which is
not the case here. Further, we reject appellant's argument that the use of
the Static-99R assessment violates an inmate's due process rights and
reaffirm that Nevada's parole statute does not create a liberty interest to
sustain a due process claim.
FACTS AND PROCEDURAL HISTORY
Appellant Brent A. Coles is currently incarcerated for a sexual
offense and eligible for parole. As part of his parole review, Coles' recidivism
risk was assessed with the Static-99R risk assessment. The assessment
scores ten characteristics of an inmate's personal history and are "static" in
that they are based on objective facts about the inmate and the offense and
do not change, except as to the inmate's age at release. The assessment
classified Coles as a high risk to recidivate, and the Parole Board denied
parole.
Coles filed a petition for declaratory judgment, arguing that
(1) the Static-99R assessment does not constitute a "currently accepted
standard of assessment" for purposes of NRS 213.1214(1); (2) assessing the
risk of recidivism is relevant only where an inmate is to be paroled into the
community, not here where Coles would be paroled to serve a consecutive
sentence, and the assessment should accordingly not be considered in this
instance; (3) he has a due process right to be provided with a copy of the risk
assessment; (4) changes to the parole statutes enacted after Coles was
initially convicted violate the constitutional prohibition against ex post
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facto punishments; and (5) he should receive a new risk assessment that
includes "dynamic" as well as "static" factors. The State moved to dismiss
under NRCP 12(b)(5) for failure to state a claim on which relief could be
granted, and the district court granted the State's motion. Coles appealed
to this court, renewing his arguments that the Static-99R does not comply
with NRS 213.1214(1) and that the parole review procedures subjected him
to an unconstitutional ex post facto law and violated his due process rights.
DISCUSSION
This court will not review challenges to the evidence supporting
Parole Board decisions, but will consider whether the Board has properly
complied with the applicable statutes and regulations. See Anselmo v.
Bisbee, 133 Nev., Adv. Op. 45, 396 P.3d 848, 851, 853 (2017). As Coles'
claims do not support a declaratory judgment, we affirm. See Buzz Stew,
LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008)
(reviewing de novo an order granting a motion to dismiss under NRCP
12(b)(5)); Kress v. Corey, 65 Nev. 1, 26, 189 P.2d 352, 364 (1948) (providing
that, to obtain declaratory relief, a plaintiff must show (1) a justiciable
controversy, (2) between persons with adverse interests, (3) where the party
seeking declaratory relief has a legal interest in the controversy, and (4) the
issue is ripe for judicial determination).
Coles first argues that the Static-99R assessment was not
formally adopted as or determined to be a "currently accepted standard of
assessment" for use in his parole hearing. This argument goes beyond what
the statute requires and does not provide a basis for reversal. NRS
213.1214(1) requires the Department of Corrections to "assess each prisoner
who has been convicted of a sexual offense to determine the prisoner's risk
to reoffend in a sexual manner using a currently accepted standard of
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assessment." The assessment must determine the risk that a prisoner
would reoffend in a sexual manner and be provided to the Parole Board
before the prisoner's hearing. Id. The legislative history shows that the
Static-99R assessment was considered as an accepted standard of
assessment in enacting a parole statute that more accurately assessed
recidivism risk. Hearing on S.B. 104 Before the Assembly Judiciary Comm.,
77th Leg. (Nev., April 29, 2013); Hearing on S.B. 104 Before the Senate
Judiciary Comm, 77th Leg. (Nev., April 10, 2013). The statute does not
require that any entity must designate a currently accepted standard of
assessment or that it be otherwise certified for the use of the Static-99R to
comply with NRS 213.1214. To the extent that Coles argues that his risk
assessment should have been processed differently because the convictions
for his sex crimes had expired, he is mistaken because the assessment is
considered if an inmate "has ever been convicted of a sexual offense." NAC
213.514(3). We decline to consider Coles' further arguments against the
wisdom of applying this particular assessment tool. See NRS 213.1214(3)
(providing that no cause of action regarding parole assessments may be
raised if the actions comply with the statutory provisions). The district
court therefore did not err in denying this claim. See Williams v. Nev. Dep't
of Corr., 133 Nev., Adv. Op. 75, 402 P.3d 1260, 1262(2017) (reviewing issues
of statutory interpretation de novo).
Coles next argues that changes to the parole statute enacted
after his conviction rendered parole more difficult to obtain and thus
constituted impermissible ex post facto punishment. This argument
likewise does not provide a basis for reversal because Coles has not shown
that the changes created a risk of prolonged imprisonment. An ex post facto
law is one that retroactively changes the definition of a crime or increases
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the applicable punishment. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504
(1995). Retroactive changes in laws regarding parole procedures may
violate the Ex Post Facto ClauseS when they create a significant risk of
prolonging the inmate's incarceration. Garner v. Jones, 529 U.S. 244, 250-
51 (2000). To the extent that Coles challenges the application of NRS
213.1214 to him as an ex post facto violation, this claim fails. See Moor v.
Palmer, 603 F.3d 658, 664-66 (9th Cir. 2010) (rejecting ex post facto
challenge to NRS 213.1214, adopted after the inmate's conviction, because
the statute did not pose a significant risk of extended incarceration). To the
extent that Coles challenges the elimination of the Psychological Review
Panel after Moor was decided, the legislative history shows that the Panel
was eliminated in part because it rated inmates as too high a risk to
reoffend, Hearing on S.B. 104 Before the Senate Judiciary Comm., 77th Leg.
(Nev., March 5, 2013), and thus the risk posed by the Panel's elimination
favored inmates. And even assuming the accuracy of Coles' representation
that he was classified as a lower risk to recidivate under a prior metric, by
his own admission that classification occurred before he violated his parole
and received another felony conviction, such that he has failed to show that
any change in regulation brought about his purported change in risk
classification. See Moor, 603 F.3d at 665 (observing that the risk of
prolonging incarceration was less likely where the inmate had previously
violated his parole). The district court therefore did not err in denying this
claim. See Flemming v. Or. Bd. of Parole, 998 F.2d 721, 723 (9th Cir. 1993)
(reviewing ex post facto claims de novo).
Lastly, Coles argues that the use of the Static-99R violates his
due process rights because he has not been permitted to review the results
for errors and contest them. Nevada's parole statute does not create a
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liberty interest to sustain a due process claim. Anselmo, 133 Nev., Adv. Op.
45, 396 P.3d at 850-51. Moreover, NRS 213.1075 specifically provides that
the information gathered by the Board in executing its duties is privileged
and may not be disclosed except in limited circumstances that Coles has not
presented. Insofar as Coles asserts a right to challenge the assessment, the
Legislature has foreclosed such a right. NRS 213.1214(3); see also NRS
213.10705 (declaring that release on parole "is an act of grace of the State").
The district court therefore did not err in denying this claim.
Because Coles' contentions do not provide a basis for granting
declaratory relief, the district court properly granted the State's motion to
dismiss Coles' petition. We therefore affirm the district court's order.'
J.
J.
Hardesty
'To the extent that Coles' requests for relief on appeal could be
construed as seeking injunctive relief, we reject the request.
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