# FILED February 24, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

ROY A. BURCH, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9712-CH-00702 VS. ) ) Davidson Chancery ) No. 97-2496-I TENNESSEE DEPARTMENT OF ) CORRECTION, ) ) Respondent/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

ROY A. BURCH Northeast Correctional Center P. O. Box 5000 Mountain City, Tennessee 37683 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General & Repor ter PATRICIA C. KUSSMANN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - An inmate sentenced to life impriso nment as a Class Xhabitual offender filed a petition for declaratory judgment. He claimed that he was

entitled to have his sentence reca lculated un der a more lenient statute that w as enacted after he was sentenced. Th e trial cou rt dismiss ed the petiti on. We affirm.
I. A Change i n the Sentencing Law
Roy Burch w

as conv icted of aggra vated r ape and sentenced

to life imprisonment

as a habitual criminal

on October 25, 1989. On November 1, 1989, the C la ss X felony law under w hich Mr. Burch was sentenced was repealed, and w as replaced by the Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35- 101 et seq. Unde r that Act, aggrav ated rape is classified as a Class A felony, and carrieswith it possible sentences of from 15-25 years for a standard Range I offende r, all the way to 60 y

ears for a career offender.
On July 25, 1997, Mr. Bur ch filed a petition for

a declaratoryjudgment that he was entitled to be resentenced under the Criminal Sent encing Reform Act of 1989. The Department filed a motion to dismiss the pe tition on the ground that it failed to state aclaim upon which reli ef could be granted. The trial court granted the defendant’s motion on November 19, 1997 . This appeal followed.

II. Tenn. Code A

nn. § 39-1-105

Mr. Burch argues on appeal that a law in effect at the time h e was sentenced entitles him to receive the benefit of any subsequent statutory change in sentencing. He also argues that the failure to tr eat him in the same manner as those sentenced after

November 1, 1989 is a violation of his constitutional equal pr

otection rights. With all due res pect to Mr. Burch, both of those arguments have been examined by our courts in earlier cases, and w ere found to be without merit.- 3 - We will focus our

discussion on one of these cases, State ex rel Stewart
v. McWherter

, 857 S.W.2d 875 (Tenn. Crim. App. 1992), because its argumentsare identical to those in the pr esent case, and the facts are virtually i dentical, except for the fact that Mr. Stewart’s crime was armed robbery, ra ther than ra pe, and he was sentenced six years before the en actment of the Criminal Sentencing Reform Act of 1989, rather than six day s before.

Mr. Burch’s statutory ar gumentis based upon Tenn. Code Ann. § 39-1- 105 (enacted 1968, repealed 1989). That statute read:

Repealed or amende

d laws -- Application in prosecution for o ffense.-- Whenever any penal statute or pen a l legislati ve act of the sta te is repeal ed or ame nd ed by a subsequent

legislative act, any offense, as defined by such statute or act beingre pealed or amended, committed while such statute or act was in full force and effect shall be prosecuted under

such act or statute in effect at the time of the commission of the offense. In the event the subsequent act provides for a lesse r p enalty, any punishment impos ed shall be in accordance w ith the subsequent act.

In the Ste wart

case, the court examined the admittedly complex language of the statute above, and determined it to mean that only those who had not been sentenc ed prior t o the ef fective date of a law reducing a penalty for their crime would receive the benefit of the more lenient law. As the court noted, t his interpretation is consistent with the provision of the 1989 Sentencing Act which limits its application to those who are sente nce d after its effective date of November 1, 1989. Tenn. Code Ann. § 40-35-117.
III. Equal Protection

The appellant contends that it is a violation of

his equal protection r

ights under the 14th Amendment of th e U .S. Constitution, and under Ar ticle XI, Sec. 8 of t he T ennessee Constitution, to impos e a different penalty upon him than upon an- 4 -

individual guilty of an identical crime, just because of his date of sentencing. M r . Burch argues (as did Mr. Stewart) that strictconstitutional scrutiny should be applied to his claim because of the liberty interest

at stake. See Doe v. Norris , 751 S.W.2d 834 (Tenn. 1988).

In the alternative, he

argues that even if w

e do not find a fundamental right to be at stake, and we there fore apply the more relax ed “rati onal basis test” to his claim, we would still be r equired to resentence h im, because the state can claim no possible rational relationship between classifications based upon da te o f sentencing, and any legitimat e st ate interest. See Massachusetts Board of Retirement v. Murgia , 427 U.S. 307 (1976); Plyler v. Doe , 457 U.S. 202 (1982).

In the Stewart case, supra, the Court of Criminal Appeals held that the strict scrutiny test did not apply, because the prisoner had lost the relevant porti on of his fundamental right topersonal liberty by virtue of his lawful conviction. The court wenton to say, however, that even if it applied the strict scrutiny test to the prisoner’s claim, it woul d still have to uphold the constitutionality of the distinction created by Tenn. Code Ann. § 4 0-3 5-117, because of a compelling state interest which it explained as follows:

There is a legitimate state i nterest at stake in not all owing the reopening of a virtual Pa n dora's box of all cases i nvolving sentences imposed before November 1, 1989, but which are presently being serv

ed by confinement, parole or probation. Society ha s a strong interest in pr eserving the finality

of criminal litigation resulti ng in aconviction and sentence which were valid at the tim e of t heir imposition. The wholesale unsettling of f inal judgments of conviction and sentence which would occur

if t he 1989 Act were applicabl e as the petitioner

claims is a price the legislature was justified in not paying when it provided that the Act w ould not apply to previously sentenced offenders. 857 S.W.2d at 877.

We agree with this reasoning.- 5 - Mr. Burch notes that the Legisl ature ha s affirmed the importance of reducing prison overcrow ding, and a rgues t hat the appellee’s interpret ation of the Sentencing Reform Act of 1989 undermines the leg islative intent. We f ind this argument quite unpersuasi ve. Legitimate state interes ts are often balanced one by another, and it is no t always pos sible to s erve one in terest wi thout und ermining another. The Legislature could theor etically solve the problem of prison overcr owding at one stroke by releasi ng all prisoners, b ut th is would create more and greater problems

for society. By enacting the Sentenci ng Reform Act of 1989, the Legislature crafted a partial solution to prison overcrowding, while at the same time pre serving the deterrent effect that arisesfrom allowing sentences thathave already been imposed to remain unchanged.

IV.

The order of the tr ial court is affirmed. Remand this cause to the Chance ry Court of Davidson County for further proceedings consistent with this opinio n. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE