1 Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b) Memorandum Opinion.

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED

August 3, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE WESTERN SECTION DANNY W. GLENN, ) From the Chancery Court ) for Davidson County, Tennessee ) Petitioner/Appellant, ) The Honorable Ellen Hobbs , Chan cellor ) vs. ) ) Davidson Chancery No. 97-4045 TENNESSE E DEPARTMEN T OF ) Appeal No. 01A01-9806-CH-00288 CORRECTION, ) ) AFFIRMED Respondent/Appellee. ) ) Paul G. Summers ) Michael E. Moore ) Stephanie R. Reevers ) Nashville, Tennessee ) Attorneys for Respondent/Appellee ) ) Danny W. Glenn, Pro Se ) Mountain City, Tennessee

MEMORANDUM OP

INION 1

This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the Court of Appeals of Tennessee. This is a petition by a prisoner for judicial review, declaratory judgment, and for a common law writ of certiorari regarding his sentencing. The prisoner contends, inter alia , that he should be resentenced

under the Criminal Sentencing Reform Act of 1989. The trial court granted the motion to dismiss filed by the

defendant Tenne

ssee Departmen

t of Correction. W

e affirm. In 1988, plaintiff Da

nny W. Glenn (“Gl

enn”) was found

to be an habitu

a l criminal under Tennessee Code Annotated §39-1-801 et seq. Under this statute, a person who has been convicted of a felony at least three times can be sentenced as an habitual criminal in addition t o be ing sentenced for the underlying third

or “triggering” felony. See Tenn. Code Ann. § 39-1-805 (1988) (repealed 1989). Pursuant to this statute, Glenn was sentenced to life in prison on December 1, 1988. On December 22, 1997, Glenn filed a peti tion in the chancery court in Davidson County, Tennes see, against the Tennessee Department of Correction, seeking judicial review, declaratory2 A motion to dismiss acc ompanied by matter

s outside the plead

ings, such as an af

fidavit, is treated as a mot

ion for summary jud

gment. Tenn. R. Civ. P. 12.03. 2 judgment, and a writ

of certiorari. In his petition, Glenn alleged that: (1) he should be re-sentenced under the Criminal Sentencing Reform Act of 1989, (2) his sentence has expired because of

good

c onduct sentence credits, and (3) his constitutional right to equal protection under the state an d federal constitutions was vi olated because

he was treated d

ifferently from a person sentenced under the Criminal Sentencing Reform Act of 1989. The Department of Correction then filed a motion t

o dismiss, accompan

ied by the affida

vit of an employee of the Departmen t, Fay Clau d. 2 After reviewin g the Department’ s records, Ms. Claud stated as fol

lows: 1. Mr. Glenn was originally sentenced in Knox County, Tennessee on May 21, 1980, and orde

red to serve a tot

al of ten (10) to th

irteen (13) yea

rs. 2. He was paroled on May 10, 1984. His parole wa s revoked af ter he received additional convictions in Blount County, Tennessee, for crimes committed while on parole. 3. He was paroled again i n A pril 1987. His parole was revoked on November 10, 1987 , due to pending cha rges. 4. On December 1, 1988, the Knox County Criminal Court sen tenced Mr. Glenn to two concurrent life sentences in case number 31663, counts 3 and 4. The life sentences were imposed after Mr. Glenn was convicted as a Habitual Criminal unde r Tenn. Code Ann. § 39-1-801 et seq. The underlying triggering offens e i n count 3 was second degree burglary, [footnote omitted] and the of

fense for count 4 was grand larceny. The

Tennessee Board of Paroles ordered that the life sentences begin on the date imposed. The sentencing court awarded t hree hundred, f

orty-six (346) days of pre

-trial jail credi

t. 5. In April

1993, the Parole El

igibility Review Boa

rd (PERB) reviewed Mr Glenn’s case, and voted to take no action to allow release prior to his calculated release dates. The PERB was terminated effective July 1, 1993. 6. Mr. G lenn’s release eligibility date (RED) is calculated as thirty (30) calendar years less any se

ntence reductio

n credits earned and retained, in accordance withTenn. Code An n . § 40-26-116(b)(2)(repealed). As of December 1997, the calculated

RED for Mr. Glenn is February 28, 2016; the calculated safety valve dat

e is June 23, 2003; and there is no expiration date on his life sentence. The trial court c

onsidered the De

partment’s motion a

nd Glenn’s respon

se. It held as follo

ws: The C riminal Sentencing Reform Act of 1989 , under which the p etitio ner asserts he is entitled to relief, applies by its express language to those off enses fo r which a person committed or was tried or sentenced after November 1, 1989. Tenn. Code A nn. § 40-35-1 17. In that the petitioner was sentenced in 1988, the Act of 1989 does not apply to him. State ex rel. Stewart v. McWh erter , 857 S.W.2d 875 (Tenn. Crim. App. 1992). Additionally, the petitioner ’s equal protection claim is invalid. In Stewart , the court determ ined that there is a

legitimate state

interest in not3

allowing the reopening of cases inv o lving sentences imposed before November 1, 1989. Id. at 876-77. Finally, at the time the petitioner was sentenced to life imprisonment, all the statutes to wh ich he refers in his complaint were repealed by Tennessee Code Annotated section 41-21-236. Thus, the petitioner is not entitled to good and honor time under the Code sections he cites: sections 41-21-212, 214, 229, 230 and 228. Therefore, th e trial court dismissed Glenn’s petition with prejudice. From this order, Glenn now appeals. Glenn brings this action a gainst the Department of Correction pursuant to Tennessee Code Annotated § 4-5-322 o f t he Uniform Administrative Procedures Act. Tennessee Code Annotated § 4-5-225 provides

that a person may c

hallenge “[t]he

legal validity

or applicability of a statute, rule

or order of an [administrative] agency . . . in a suit for a declaratory judgment in the chancery cour t of David son Count y . . . .” Tenn. Code Ann. § 4-5-225(a) (1998). Prisoner discipline or job termination are exempted. Tenn. Code Ann. § 4-5-106(b) (1998). Tennessee Code Annotated § 4-5- 323 provides a that “a

n aggrieved par

ty” may obtain judic

ial review to this Court from a final judgment rendered in chancery court. Tenn. Code Ann. § 4-5

- 323 (1998). Thus, this Court has jurisdiction to hear this

appeal. See also Slagle v. Reynolds , 845 S.W.2d 167, 169 (Tenn. 1992). A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of

material fact a

nd that the moving pa

rty is entitled to

a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burd en o f demonstrating that no genuine issue of material fact exists. Byrd v. Hall , 847 S.W.2d 208, 2 11 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in f

avor of the nonmov

ing party, allow a

ll rea sonable inferences in favor of that party, and discard all countervailing evidence. Id. at 210-11. Sum mary judgment is only appropriate

when the facts a

nd the legal conc

lusions drawn fro

m the facts reaso

nably permit only

one conclusion. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law

are involved, there is

no presumption of c

orrectness reg

arding a trial court's grant of summary judgment. Id. Therefore, our review of the tri

al court’s grant

of summary judgmen

t is de novo on the record before this Court. Id. As noted by the trial court, Glenn’s claims under the Criminal Sentencing Refo rm Act o f 1989 and under the equal protection provis ions of the state

and federal constitutions were rejected4

in State ex. rel. Stewart v. McWherter , 857 S.W.2d 875 (Tenn. Crim. Ap p. 1992). We agre

e with the trial court tha

t Stewart controls and aff irm the decision of

the trial court on t

hese issues. Glenn also claims that he is entitled to good and honor time u nder Te nnessee Code Annotated §41-21-212, g ood conduct sentence credits under Tennessee Cod e Annotated §41-21-229, prison performance credits under Tennessee Code Annotated §41-21-230, a nd inmate

incentive credit under Tennessee

Code Annotated §41 -21-228. Under th ese statutes, Glenn calculates that his

sentence has expired, and he should be released. However, as noted by the trial court, these

statutes

were repealed in 1985, prior to the date of Glenn’s triggering felony as an habitual criminal in 1987 and prior to his sentencing in 1988. See Tenn. Code Ann. §§ 41-21-212, 228-30 (1997) (repealed 1985). The decision of the trial court is affirmed on this issue as well. The decision of the trial court is aff irmed. Costs

on appeal are ta

xed against the Ap

pellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.