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APPELLANT PRO SE Kevin S. Varner Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Elizabeth Rogers Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S04-0909-CR-407 KEVIN S. VARNER,

FILED
Mar 10 2010, 1:55 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Petitioner below), v. INDIANA PAROLE BOARD, Appellee (Respondent below). _________________________________ Appeal from the Lake Superior Court, No. 45G02-9006-CF-109 The Honorable Clarence Murray, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 45A04-0812-CR-693 _________________________________ March 10, 2010 Sullivan, Justice.

When the five-member Parole Board denied an inmate parole by a vote in which only four members participated, the inmate sought to compel a vote by all five members. The statute governing final decisions by the Parole Board requires the "full parole board" to make the d etermination. We find that a majority of the Board constitutes the "full parole board" for this pur-

pose. As such, the inmate received a decision from the board that accorded with the statute's requirements. Background

On October 9, 2008, four out of the five members of the Indiana Parole Board conducted a hearing to determine whether inmate Kevin Varner should be paroled. Two members of the Board voted for parole, and two members voted against it. The fifth member neither participated in the hearing nor cast a vote; the Board based its final decision on the votes of four Board members. Because Varner did not receive a majority vote in favor of his parole release, he requested a rehearing at which the absent fifth member could cast his vote. The Board, however, did not respond to Varner's request.

Varner filed a pro se mandate action seeking to compel the Board to determine his parole eligibility based on a five-member vote. The trial court denied his petition, citing lack of subject matter jurisdiction. Varner appealed. The Court of Appeals found subject matter jurisdiction over Varner's writ of mandamus. Varner v. Ind. Parole Bd., 905 N.E.2d 493, 498 (Ind. Ct. App. 2009). On the merits of the claim, the Court of Appeals held that the Board was statutorily obligated to determine Varner's parole eligibility by a five-member vote. Id. at 504. The Board sought, and we granted, transfer. Ind. Appellate Rule 58(A).1

1

The Court of Appeals resolved the issue of subject matter jurisdiction in favor of Varner. Varner, 905 N.E.2d at 498. We summarily affirm the decision of the Court of Appeals as to this issue. App. R. 58(A)(2).

2

Discussion Varner contends that the use of "full parole board" in Indiana Code section 11-13-3-3(b) means that all five members of the Board must participate in the decision whether to grant or deny parole. The State, on the other hand, maintains that requiring the participation of all five Board members imposes a duty on the Board that is not required by Indiana Code section 11-133-3(b).

The first step in interpreting a statute is to determine whether the Legislature has spoken unambiguously on the question. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). The primary purpose of statutory construction is to give effect to the Legislature's intent. State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). We construe statutes only where there is some ambiguity which requires construction. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008). A statute is ambiguous when it is susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001).

The Indiana Parole Board consists of five members appointed by the governor. Ind. Code

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