Larry Blackwell, 176790 v. SCDPPPS ( 2024 )

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
Larry Blackwell, #176790, Appellant,
v.
South Carolina Department of Probation, Parole, and
Pardon Services, Respondent.
Appellate Case No. 2021-001162
Appeal From The Administrative Law Court
Harold W. Funderburk, Jr., Administrative Law Judge
Unpublished Opinion No. 2024-UP-211
Heard April 2, 2024 – Filed June 12, 2024
REVERSED AND REMANDED
Jonathan Edward Ozmint, of The Ozmint Firm, LLC, of
Greenville; John H. Blume, III, of Law Office of John
Blume, of Columbia; and Hannah Lyon Freedman and
Allison Franz, both of Justice 360, all of Columbia, for
Appellant.
General Counsel Matthew C. Buchanan, of Columbia, for
Respondent.
PER CURIAM: Appellant Larry Blackwell challenges the Administrative Law
Court's (ALC) order dismissing his appeal from a decision of the South Carolina
Board of Paroles and Pardons (the Board) denying his application for parole.
Blackwell seeks relief from the Department of Probation, Parole & Pardon Services'
(the Department) denial of his request to review his parole file, its presentation of
inaccurate information to the Board, and its discrediting of Blackwell's effort to
correct that information. We reverse and remand.
FACTS/PROCEDURAL HISTORY
In preparing for Blackwell's then-upcoming parole hearing on April 14, 2021,
Blackwell's counsel discovered the existence of an opposition letter submitted by
Barry J. Barnette, Solicitor for the Seventh Judicial Circuit, to the Director of Victim
Services for the Department. Solicitor Barnette had sent nearly identical letters to
the Department prior to three previous parole hearings for Blackwell. Solicitor
Barnette had prosecuted Blackwell for murder in 1992, and Blackwell was
ultimately convicted of murder and sentenced to life in prison. In his opposition
letter, Solicitor Barnette described the murder and stated that it occurred "about 2
weeks after [Blackwell] finished serving a drug-related prison sentence." Solicitor
Barnette also expressed his opinion that Blackwell had "proven his inability to be
rehabilitated and conform to the laws of our state. He needs to spend the rest of his
life behind bars." Solicitor Barnette then added,
I prosecuted the murder case while working as an assistant
solicitor[,] and the court proceeding is one I will never
forget due to the violent manner of the death and the fact
that Mr. Blackwell threatened to kill me and my wife after
he was sentenced. Fellow inmates in the Department of
Corrections reported the threats[,] and the State Law
Enforcement Division investigated the matter.
(emphases added). Notably, a previous, unsigned version of this letter written on
October 4, 2014, stated that the South Carolina Law Enforcement Division (SLED)
"is presently investigating the matter." (emphasis added). Otherwise, the substance
of the allegations in the 2014 letter is the same as in the opposition letters that
Solicitor Barnette sent to the Department in 2016, 2019, and 2021.
The 2014 investigation referenced in Solicitor Barnette's letter began after
SLED received notice of a letter sent to Solicitor Barnette by an inmate, Alan Yates,
who housed at the same facility where Blackwell was housed. In Yates's
correspondence, he identified himself as "Terry Buchanan," although there was no
inmate listed on the South Carolina Department of Corrections website with that
name. Yates's letter stated that Blackwell said he "wish[ed] he could get [Solicitor
Barnette's] wife drunk, have sex, and video it and sen[d] it to [Solicitor Barnette]."
Yates did not allege that Blackwell had threatened to kill Solicitor Barnette or his
wife.
When SLED agents interviewed Blackwell, he denied making any of the
statements referenced in Yates's letter to Solicitor Barnette and indicated that Yates
had sent out similar letters in the past and "was always trying to improve his
conditions in the prison by fabricating information on other inmates." When SLED
Agent R.W. Charles confronted Yates, he admitted to sending the letter in question
and then asked Agent Charles "for some consideration for informing on Blackwell"
as Yates wanted "to be moved to Tyger River [Correctional Institute]."
SLED provided a copy of its investigative report to Solicitor Barnette in
December 2014 and closed the investigation in January 2015 after the Attorney
General's office declined to prosecute Blackwell. By that time, Solicitor Barnette
had already sent an opposition letter to the Department just prior to Blackwell's
October 2014 parole hearing. After learning of Solicitor Barnette's opposition
letters, counsel for Blackwell contacted the Department's General Counsel to request
that he inform the Board of the contents of the SLED report and to change the
Department's procedures to ensure that inaccurate information is not presented to the
Board.
The Department's counsel contacted Solicitor Barnette and later advised
Blackwell's counsel that Solicitor Barnette stood by his statements to the Board. The
Department's counsel also indicated that the Department's investigative file
"contain[ed] no reference to the allegations of threats on behalf of [Blackwell] to
Solicitor Barnette. The only reference to the threats are within [Solicitor] Barnette's
own letters to the Board."1 The Department declined to refute Solicitor Barnette's
statement that Blackwell had threatened to kill him and his wife and advised
Blackwell's counsel that he was in the best position to present the SLED report to
the Board.
During his presentation at the parole hearing, Blackwell's counsel advised the
Board of the SLED report's existence and stated that the Department's
1
As we previously stated, Solicitor Barnette's letters were addressed to the Director
of Victim Services for the Department.
representatives had known about the report for six years without providing it to the
Board. Immediately after the Board voted to deny parole, one of the members stated
that she "would like a follow up from the [Department] regarding . . . [counsel's]
allegations about [the] SLED report." In response, the Department's counsel stated,
All right, well, [counsel] contacted me and provided me
with information about that SLED report, provided me that
SLED report. The allegation that he says that we're
burying this, we were not aware of this SLED report until
[counsel] provided this to me. It pertains essentially to the
allegations that are listed in Solicitor Barnett[e]'s letters in
opposition. After reviewing the SLED report[,] I saw that
there . . . was no recanting of the allegations, I spoke with
Solicitor Barnett[e] about this, he stands by his statements
to the [B]oard. And in that case[,] because this did not
appear in the packet that [the Department] prepared, and it
was only within [Solicitor] Barnett[e]'s letters, we felt
that . . . what[ counsel] wanted was . . . for us
to essentially refute or counter Solicitor Barnett[e]'s
statements, and we are not in the position to do that. We
do not feel that we should get involved in refuting
anything that a victim or a witness or a[n] interested party
like a solicitor or a judge. That's, therefore[,] we felt that
the proper position, or proper individual to do that would
be [counsel] himself. So that's why we, as the
[D]epartment, . . . did not comment on this . . . matter.
And then, knowing full well that [counsel] is fully capable
of explaining his client's position regarding those
allegations.
Subsequently, the Board member who inquired about the SLED report
indicated that she wanted to view the report and the letter written by Yates. Another
representative of the Department responded that in order to provide the report to the
Board, she needed
to make sure we're clear on reviewing the SLED report,
this is not part of the inmate’s record, it is not part of the
investigation that was provided to the [B]oard. This is
simply something that his attorney supplied to us in order
to refute a statement of admission and we don't investigate
or legitimize statements of opposition.
The Board's chair asked the representative if she could send the report to the Board
later that same day, and she responded, "Yes, but again[,] the SLED report was
provided by the inmate's attorney, not officially from SLED, and it needs to be
reviewed as such."
The Board's chair then announced that the Board would "delay the final
vote . . . until after one of the breaks when . . . all of the [B]oard has had a chance to
review[] the SLED report." After the break, the chair asked the other Board
members if they had a chance to review the SLED report. The Board member who
first inquired about the SLED report stated that she had reviewed the report and she
stood by her vote, and the other Board members remained silent. The Board then
voted to deny reconsideration of its earlier vote tally.
In its written decision, the Board listed five specific grounds for denial in its
"FINDINGS OF FACT": (1) Nature And Seriousness Of Current Offense; (2)
Indication Of Violence In This Or Previous Offense; (3) Use Of Deadly Weapon In
This Or Previous Offense; (4) Criminal Record Indicates Poor Community
Adjustment; and (5) Failure To Successfully Complete A Community Supervision
Program. Item (4) apparently pertains to the fact that, according to Solicitor
Barnette, the murder for which Blackwell is now serving time occurred "about 2
weeks after he finished serving a drug-related prison sentence." This is consistent
with Blackwell's presentation to the Board and with the records of the Department
of Corrections, which indicate that Blackwell was first admitted on May 22, 1991,
before the date of the murder for which he is currently serving time, and the start
date for his sentence for murder was May 22, 1992. Item (5) apparently pertains to
his February 7, 1992 conviction for violating the terms of his supervised furlough.
Blackwell filed an appeal with the ALC, but the ALC dismissed the appeal,
citing section 1-23-600(D) of the South Carolina Code (Supp. 2023) for the
proposition that this statute excludes routine parole denials from the ALC's
jurisdiction.2 This appeal followed.
2
Section 1-23-600(D) provides, in pertinent part:
An administrative law judge shall not hear . . . an appeal
involving the denial of parole to a potentially eligible
STANDARD OF REVIEW
In appeals from the ALC, this court
may affirm the decision or remand the case for further
proceedings; or, it may reverse or modify the decision if
the substantive rights of the petitioner have been
prejudiced because the finding, conclusion, or decision is:
(a) in violation of constitutional or statutory
provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(f) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann. § 1-23-610(B).
LAW/ANALYSIS
I. Inaccurate Information
Blackwell argues that his due process rights were violated by the presentation
of Solicitor Barnette's letter to the Board because the letter's statement that Blackwell
inmate by the Department of Probation, Parole and Pardon
Services.
(emphasis added).
threatened to kill Solicitor Barnette and his wife was inaccurate. Blackwell also
argues that the Department violated his due process rights by discrediting his effort
to challenge the inaccurate statement in Solicitor Barnette's letter. Blackwell
contends that statements made by the Department's representatives, in response to a
Board member's inquiry about the SLED report, denigrated that report and implied
that the report addressed death threats.
We do not view the statements of the Department's representatives at the
parole hearing as an attempt to discredit the SLED report. Rather, we view these
statements as expressing the Department's position that (1) it must appear neutral in
its role as an investigator for the Board and (2) it must advise the Board of the source
of any document it provides to the Board out of regard for the Board's need to limit
its consideration to only those documents that are authentic. These concerns are
reasonable.
We acknowledge the troubling nature of the Department's reference to the
SLED report as corresponding to Solicitor Barnette's allegation that Blackwell
threatened to kill him. The SLED report includes a copy of Yates's letter to Solicitor
Barnette, in which Yates alleged that Blackwell "wish[ed] he could get [Solicitor
Barnette's] wife drunk, have sex, and video it and sen[d] it to [Solicitor Barnette]."
The SLED report did not include an allegation from Yates or any other inmate that
Blackwell had threatened to kill Solicitor Barnette or his wife. Yet, Solicitor
Barnette stated in his letter to the Board that Blackwell "threatened to kill [him] and
[his] wife." This was not a reference to a threat independent of the threat investigated
by SLED. Rather, Solicitor Barnette referenced the alleged threat to kill him as
having been conveyed by at least one other inmate and stated that SLED investigated
the threat.
Therefore, Blackwell was concerned about not only the falsity of Yates's
allegations in his letter to Solicitor Barnette but also Solicitor Barnette's
misinterpretation of Yates's allegations. Disturbingly, in his written and verbal
communications, the Department's counsel displayed a lack of awareness of
Solicitor Barnette's misinterpretation. Nonetheless, during the hearing, the Board
gave Blackwell's counsel ample opportunity to address Yates's allegations and
Solicitor Barnette's misinterpretation. Further, the Board members who were
present at the hearing were given an opportunity to review the SLED report
themselves and to reconsider their votes in light of the report. Therefore, as to this
particular parole hearing, Blackwell was not prejudiced by Yates's allegations or
Solicitor Barnette's misinterpretation.
II. Access to Parole File
Blackwell argues that the Department is required to allow parole applicants
access to their parole file so that they will have a meaningful opportunity to correct
any inaccuracies therein. Blackwell asserts that the Department's Parole Form 1212
created a rule allowing an inmate access to his parole file by stating that an inmate
must notify the Board of any specific error in his file. Form 1212 states, in pertinent
part,
In deciding whether or not to grant parole, the Parole
Board considers, among other things, the [i]nmate's record
before incarceration as well as during incarceration. The
record itself is prepared through investigations conducted
for the Parole Board, and it becomes a part of the inmate's
parole file. The files are maintained by the Department of
Probation, Parole and Pardon Services and are, by the
statute, privileged and confidential. The confidentiality of
the parole file is far reaching; inmates themselves have no
right to inspect the contents of their files. If the inmate
thinks his/her file is somehow incomplete or contains some
errors or other inaccuracy, he/she must notify the Board
of the specific error or inaccuracy. The Board will
investigate the inquiry and notify the inmate of the action
taken.
(emphasis added). Despite the above statement that inmates have no right to inspect
their files, this court recently emphasized the form's language requiring an inmate to
notify the Board of any perceived inaccuracies and held that this language
"necessarily implies the right to review the file," with reasonable redactions and
sealing in place. Kelsey v. S.C. Dep't of Prob., Parole, & Pardon Servs., 441 S.C.
373, 378, 893 S.E.2d 588, 591 (Ct. App. 2023), cert. denied, S.C. Sup. Ct. Order
dated Mar. 5, 2024; id. at 379, 893 S.E.2d at 591 ("With the protections for victims
in place by reasonable redaction and sealing, we find an inmate is entitled to review
his or her file.").
Therefore, we reverse and remand for Blackwell to review his file and report
any inaccuracies and for the Board to conduct a new hearing on Blackwell's parole
application.3
CONCLUSION
Accordingly, we reverse the ALC's order and remand to the ALC for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
GEATHERS, HEWITT, and VINSON, JJ., concur.
3
We decline to address Blackwell's remaining issues. See Earthscapes Unlimited,
Inc. v. Ulbrich, 390 S.C. 609, 617, 703 S.E.2d 221, 225 (2010) (holding that an
appellate court need not address remaining issues when the resolution of a prior issue
is dispositive).