Coles v. Bisbee
Coles v. Bisbee
Opinion of the Court
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 sexual offenses, as well as whether changes to the statutory scheme 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 *720constitutional prohibition against ex post 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. ----,
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 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.
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 the applicable punishment. Cal. Dep't of Corr. v. Morales ,
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 liberty interest to sustain a due process claim. Anselmo, 133 Nev. ----,
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.
To the extent that Coles' requests for relief on appeal could be construed as seeking injunctive relief, we reject the request.
Reference
- Full Case Name
- Brent A. COLES v. Connie S. BISBEE, Chairman The Nevada Board of Parole Commissioners The Nevada Department of Corrections and the State of Nevada
- Cited By
- 2 cases
- Status
- Published