### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 9, 2001
WILLIAM ALLEN v. DONAL CAMPBELL , ET AL 

### . Appeal from the Chancery Court for Davidson County No. 00-784-II Carol McCoy, Chancellor

No. M2001-00277-COA-R3-CV - Filed March 11, 2002

Petitioner, a state inmate, filed the underlying pro se declaratory judgm ent action pursuant to the Unifor mAdministrative Procedures Act to seek review of the Te nnessee Department of Correct ion’ s refusal to answe

r a petiti on for a d

eclara tory orde r. Petition

er requested a d

ecla ratory order to determine his entitleme

nt to both go od conduct sentenc e credits and good and honor

time cre dits. The trial court granted

the Department’s motion to dismiss for failureto state a claim holding that petitioner was not e

ntitled to d

uplicate se ntenc e credits. For the following reasons, we affirm the decision of the tri al court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILL IAM C. K OCH , J R ., J., joined.
William Allen, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, M ichael M oore, Soli citor Ge neral, Pa mela S. Lorch, Assistant Attorney General, Nashville, Tennessee, for the appellees, Dona l Campbell , et al.
OPINION

This case involves a dispute between W illiam Allen , an inmate in the Tennessee prison system, and the Tennessee Department of Correction (“Department” ) concerning the calculation of Mr. Allen’s sentence reducti on credits. Mr. Allen filed a petition for declaratory orde r with the D epartment of Correction alleging that he was entitled to sentence credits under two different statutory cre dit s ystems. After the Tennessee Department of Corr ection declined to issue a declaratory order, Mr. Allen sought declaratory judgment pursuant to the Uniform Administrative Procedures Act. He a

lleged th at he wa s entitled to receiv e credits under both statutory systems and that the miscalculation of sentence credits was a violation of both his due pro ce ss and equal protection ri ghts by t he Department. The Department responded with a motion to dismiss under1 The Department also moved to dis miss for l ack of subject matter juri sdiction on the basi s that Mr. Allen fai led to exhaust his administrative clai ms. Noting that the record included n ume rous requests to the Departmen t from M r. Allen, the trial co urt or dere d the De partm ent to mo re spe cifically ident ify t he act ions Mr. All en was suppos ed to t ake in ord er to ex hau st those claim s. Th e D epa rtm ent re spo nde d by clarify ing th at its allega tio n o f failure to exh aust adminis tra ti ve claims applied to Mr. Allen’s claims under o nly one statute. Subsequently, Mr. Allen mo ved to withdraw those cla ims i n conte nti on and to pr oceed wit h the c lai ms the Department agreed he had exhausted. The court granted his motion f

or part ial withdr awal of

cla ims re lating t o sent ence cr edit s underTenn. Code Ann. § 41-21-230 (program part ici pati on cred its). Since the c laim involvi ng program partici pation cre dits was withdra wn , no issue reg arding those cred its is befo re us o n ap pea l.

2 Accord ing to the formula set out in the statute, a prisoner could earn one month of good ti me credi t for

the firs t year of i ncarceration, t wo m onths of credi t for t he second year, t

hree months for

each s ubsequent

year up to and inclu ding the ten th ye ar, an d fo ur m onth s for ev ery su bseq uen t year of im priso nm ent.

3 All the previ ous sentence c redit stat utes were repe aled in 198 5. 19 85 T enn . Pub . Acts ( 1st E xt. Ses s.) Ch . 5 § 14

. See al so Tenn. Co de An n. § 41-21-2 36(g).
-2- Tenn. R. Civ. P. 12.02( 6) for f ailure to state a c laim. 1 The court granted the Department’s motion to dismiss holding that Mr. Allen was not entitled to earn g ood conduct sente nce credits under Tenn. Code. Ann. § 41- 21-229 in a ddition to good and honor

time credits of Tenn. Code Ann. § 41-21-212 and § 41-21-214 for the same time served. Mr. Allen has a ppealed. I. Applicable Sentence Credit Statutes

WilliamAllen was convicted of first degree murder in 1968. He rece ived a 99-year sentence. When Mr. Allen was first incarcerated, Tenn. Code Ann. §§ 41-332 and 41-334 (redesignated 41-21- 212 and 41-21-214 in 1982) were in effec t. Under

Tenn. Cod

e Ann. § 41 -332 a pr

isoner “ who shall demeanhimself up

rightly” c ould

earn credits for good behavior which we re to be deducted

from his sentence. 2 Tenn. Code Ann. § 41-333 (redesignated § 41-21-213 in 1982) provided that a record of conduct for each prisoner was to be kept, and this record “shall become the basis for the allowanc e of ‘good time’.” In addition to these goo d time credits, Tenn . Code Ann . § 41-334 authoriz ed cred

it for those prisoners placed in an honor grade status of twomonths of honor time for “each year of the term of service.”

When Mr. Allen was initially incarcerated in 1970, the Department calculated a presumptive sentence expiration date based upon his sente

nce and the good a

nd honor time cred

its availa ble to him under the statutes described abo ve which were then in effect. This calcula tion resulted in a presumptive sentence of fifty (50) years and seve n (7) months, based on an a s sumption that Mr. Allen’s behavior would result in his earning the credits available.

The General Assembly enacted a new sentence credit structure in 1980, which re placed the earlier good and honor

time sente

nce credit system. 3 Tenn. Code Ann. §§ 41-359 (redesignated as 41-21-229) and 41-361(redesignated as 41-21- 231). The new system provided for “good conduct sentence credits” and went into effect on July 1, 1981. The statute specifi cally provided that after July 1, 1981, those persons convicted of an offense prior to that date “shall be entitled to earn good4 The General Assembly creat ed the “pri soner sent ence reducti on credit” program in 1985 that was availa ble

to prisoners w ho co mm itted felonies prior to Dece mb er 11, 19 85. Prison ers were not eligible for th is program unless they signe d a w ritten w aiver pur suan t to Te nn. C ode An n. 41 -21 -23 6(c) (3), -2 36( g). Mr. Allen did not sign the waiver, and there fore con tinue d to a ccru e sen tence redu ction cred its in accord ance w ith the pre-ex isting sentence credit statutes. See Tenn. Co de An n. 41-21-23 6(g). M r. Allen did not all ege that he was deni ed “prisoner sentence r eduction credi ts”, thus we need not discuss them further.

5 S ee als o Jones v . Morgan , No . 01C 01- 960 6-C C-0 026 3, 19 97 T enn . Crim . Ap p. L EX IS 50 8 (T enn . Crim

. App

. May 30, 1997), wherein a pri soner made a simila r claim that sen tence cred its must be credited against the Departm ent’s project ion of when his sent ence would expire. The court dismiss ed that

cla im, s tating “the re cord indic ates tha t he is using as his b ase sen tence an ex piratio n da te calcu lation b y the De partm ent o f Co rrectio n tha t alread y inc lude s his project ed senten cing , cred its. In oth er w ord s, the p etitione r’s calc ulation s pro vide him with doubled s entenc ing cred its to which he is not enti tled. ” Id . at *4-5.
-3- conduct time in accordance

with Tenn . Code Ann. § 41-21-229, and no person thereafter sha ll be entitled to sentence cre dits pursuant to §§ 41-21-212 or 41-21-214.” Tenn. Code Ann. § 41-21-231. The same provision includeda formula for converting good and honor time credits earned under the old system prior to July 1981 to the new system of good conduct sentence credits.

The new statutory system did not include a waiver or opt-in pro vision to the new good conduct sentenc e credits system, 4 and it app lied acr oss the boa

rd to all prisoners. Jones v. Reynolds , No. 01A01-9510-CH-00484, 1997 Tenn. App. LEXIS 462, at *10-11 (Tenn. Ct. App. July 2, 1997) (no Tenn. R. A

pp. P. 11 ap

plic ation fil ed). Thus, according to the statute, all prisoners would be eligible to earn good co nduct sentence credits in lieu of good and honor time from July 1, 1981, forward. The new system replaced the older one. Id.

II. The Petitioner ’s Claim

Mr. Allen asserts he is entitled to good time and honor time cred its under the pre-1981 systemand to good conduct sentence cred its unde r the post-1981 system. More specifically, he asserts he is entitled to all the good time and honor time credits reflected in the Department’ s presumptive sentence calculations supplied him early in his incarcera tion. In other wo

rds, he claims entitlement

to the entire maximum number of credits he could have ear ned under the old system as well as a dditional c

redits sta rting in 19 81 under

the new s ystem.

Mr. Allen’s arguments presume incorrectly that the Department’s projection of his sentence expiration date actually was an award of those projected credits. That is simply not the case. As the statutes, quoted above, make clear, the pre-1981 ( as well as the post-1981) sentence cre dit s could be earned by a prisoner. They were not awarded until earned. Prisoners do not ea rn goodconduct sentence credits or good and honor time credits in advance. Gree ne v. Tennessee Dep’t of Correction , No. 01A01-9608-CH-00370, 1998 Tenn. App. LEXIS 461, at *10-11 (Tenn. Ct. App. July 10, 1998) (permission to appeal denied Oct. 19, 1998). 5 In addition, the statute e ffecti ng the 19 81 change makes it clear that after July 1, 1981, no prisoner could ear n credits under the prior system. Thus, it was not possible for Mr. Allen to earn credits under both systems concurrently.-4-

The claims raised by Mr. Allen have been add ressed by this court before. In Greene v. Tennessee Dep’t of Correction , 1998 Tenn. App. LEXIS 461, another prisoner claimed entitlement to credits u

nder both the good a

nd honor time sy stem and the later go od conduct sentenc e credits system. In ruling on that claim, we stated:

We have already addressed this claim and have found that

the good conduct sentence credits authorized by Tenn. Code Ann. § 41-21-229 complete ly replac ed the pr

eviously e

xistin g good and honor

time creditsand that these good conduct sentence credits would ap ply across the board to all prisoners.

Id

. at *6 (citing Jones v. Reynolds , 1997 Tenn. App. LEXIS 462, at *10-11). Accordingly, we ruled that Mr. Greene was entitled to credits ea rned under the

old system f

rom his inc arcer

ation to July 1, 1981, and from

that date forwar d was eligible to earn credits under the newer system. Similarly, Mr. Allen is e

ntitled to be cr edited with any good and honor time he earned under the pr e-1981 systemup until July

1, 1981. H e is also entitled to any good conduct sentence credits he has ea rned since that date

under the

newer s ystem. Herein, Mr. Allen does not allege he has not rece ived the appropriate credits he earned using this methodology.

Mr. Allen als o relies on the language in Tenn. Code Ann. § 41-21-229(f) to the effect that the good conduct sentence credits created in that statute “shall be in addition to any other sentence creditsauthoriz ed by law .” He as serts that because he was entitled to earn credits under the system in effec t at the time

of his off ense, tho se cred

its are in effec t additiona

l credit s authorized by law. That argument overlooks, however, the language of Tenn. Code Ann. § 41-21-231 that after July 1, 1981, “no person thereafter shall be entitledto sentence credits pursuant to §§ 41-21-212 or 41-21- 214.” Thus, after July 1, 1981, the good and honor time credits established by superseded law were no longer “ authoriz ed by law .” “Prisoners d o not have an inherent right to sentence reduction credits. These credits are creature s of statute, and thus the right to receive or accrue c redits depends on the statutes authorizing them.” Jones v. Reynolds , 1997 Tenn. App. LEXIS 462, at *10-11.

Mr. Allen also argues that by depr iving him of sentence credits, the Department has adverse ly affec ted his libe

rty inter ests cre ated by st

atute in sentence credits and violated his rights to equal protec tion under the law. H

is constitu

tional cla ims are ba sed, in la

rge par t, upon his contention that he “earned” all the good and honor time credits under the pre-1981 system that the Department

had projected he w ould be el igible to earn over his entire sentence. As discussed a bove, that premise is inaccurate. As to credits he had not yet earned

under the old system prior to July 1, 1981, he had no

propert y or liber ty interest in such credits, and the legislature’s decision to change the syste m of sente

nce credits did not implicate any due p

rocess p rotections.
Mr. Allen argues that the credits projected as earnable by the Department were an inherent part of the se

ntence s tructure

at the time

of his off

ense and that t h e legislature could not constituti onallydeprive him of credits earned under

that system and, alternatively, could not deprive him of his r

ight to con

tinue toearn cr

edits under tha

t system. He asser

ts “his sen

tence sp ans both-5-

the original G

ood and Honor Time s tatutes in effec t in 1968 at

the time of his offense, and the 1981 Good Conduct sta

tutes, and he is the

reby ent itled to cr edits of b oth.” Thisargument is, in essence, a claim of ex post fa cto clause violation.

We have considered these same constitutional claims in the same factual context before. In Greene , we recognized that the prohibitions on ex post fa cto legislation prevent leg is latures from increasing criminal penalties beyond those prescribed for a cr ime when it was committed. Greene , 1998 Tenn. App. LEXIS 461, at *7-8. Sentence reduction credit statutes in effect a t the time of the commissio n of a crime are, as Mr. Allen asserts, a n inherent part of his sentence; consequently, application to him of a system of sentenc e credits which r

educes t he amount

of cred it he is eligible to receive, if such

applica tion effectively

imposes a greater punishment at a date after the of fense, is subject to constitutional attack.
However, we dete

rmin ed in Greene , as we had earlier in Jones that the good conduct sentence credit system allows a prisoner to earn more credits than the pre vious system and decreases rather than increases the potential length of incarcer ation. Id . at *8- 9. Conseq uently, the legislature’s adoption of a new system to replace the one in effect at the time

of Mr. All en’s off

ense does not amount to an ex post fa cto violation.

III. Conclusion

A Tenn. R. Ci v. P. 12.02( 6) motion to dismiss for fail

ure tostate a claim upon which relief
can be granted tests only the legal sufficiency of the complaint, not the strength of the petitioner's proof. Cook v. Spinnaker's of Rivergate, Inc. , 878 S.W.2d 934, 938 (Tenn. 1994). The basis for the motion is th at t he allegations contained in the complaint, considered alone and take n as true, are insufficient

to constitute a cause of action. Id. In resolving the issues in this appeal, we are required to construe the complaint liberally in the plaintiff's favor and take the allegations of the complaint
as true. Bell v. Icard, Merrill, Cullins, Timm, Furen and Ginsburg, P.A. , 986 S .W.2d 550, 554 (Tenn. 1999)

. Our standard of review on appeal fr om a trial court's ruling on a motion to dismiss is de novo , with no presumption of correctness as to the trial court's leg al conclusions. Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997).

Mr. Allen is not entitled to earn credits under both systems concurrently. The later system replaced the earlier system. Consequently, he has failed to state a claim upon which r elief can be granted. The dec ision of the trial cou rt is affirmed. Costs aretaxed to the Appellant, William Allen, for which execution may issue if necessary.

__________________________________ PATRICIA J. COTTRELL, JUDGE