FILED

January 21, 1999

Cecil W. Crowson

Appellate Court Clerk

DAVID WILLIAMS, )

)

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9801-CH-00010

v. )

) Davidson Chancery

TENNESSEE DEPARTMENT OF ) No. 97-2523-I

CORRECTION, )

)

Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

DAVID J. WILLIAMS, Pro Se

#093823 NECX POB 5000

Mountain City, Tennessee 37683

JOHN KNOX WALKUP

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

MICHAEL L. HAYNIE

Assistant Attorney General

Civil Rights and Claims Division

425 Fifth Avenue North

Second Floor, Cordell Hull Building

Nashville, Tennessee 37243-0488

ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

Petitioner, David J. Williams, on July 29, 1997, filed in the Chancery

Court of Davidson County, Tennessee, a petition for judicial review and/or

declaratory judgment and/or common-law writ of certiorari.

Acting pro se he asserts that he is being held unconstitutionally and

illegally by the defendant.

He contends that he is entitled to immediate release because his

sentence structure is incorrect and illogical and further that he is entitled to

immediate release because he should be re-sentenced under the Criminal

Sentencing Reform Act of 1989, and because he is entitled to both retroactive

and cumulative sentence credits. He further asserts that it is a violation of

constitutional equal protection rights and constitutional freedom from cruel and

unusual punishment for him to be treated differently from individuals sentenced

under the Criminal Sentencing Reform Act of 1989.

Petitioner was convicted of aggravated rape on July 22, 1981, the rape

having occurred on June 29, 1980 in Washington County. The defendant was

also convicted of rape on February 12, 1981 with this offense having occurred

in Carter County, Tennessee. The sentences ran consecutively. The aggravated

rape conviction was for a Class X felony.

The learned chancellor addressed these issues by comprehensive

memorandum which is adopted as the opinion of the court in part:

The petitioner, pro se, is an inmate in the custody of the

Tennessee Department of Correction at the Northeast Correctional

Center in Mountain City, Tennessee. He has filed a petition in which

he seeks a declaratory judgment: 1) that his sentence as imposed by the

courts is erroneous; 2) that he is entitled to be sentenced under the

Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-

101 et seq.; 3) that he is entitled to certain sentence credits which have

been unlawfully withheld; and 4) that he is entitled to be released

immediately. Alternatively, the petitioner seeks review of the decision

of the Department of Correction to deny his request for a declaratory

order under the common law writ of certiorari.

The petitioner committed the offense of aggravated rape on June

29, 1980 and the offense of rape on February 12, 1981. On July 22,
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1981, the petitioner was sentenced to life imprisonment for the

Washington County Aggravated Rape conviction. This life sentence is

consecutive to the petitioner's 20 year sentence for his Carter County

Rape conviction. At the time of the petitioner's offense and at the time

of his conviction and sentencing, Aggravated Rape was a Class X

felony pursuant to Tenn. Code Ann. § 39-1-701 et seq. (repealed). On

November 1, 1989, the Class X felony law under which the petitioner

was sentenced was repealed and replaced by the Criminal Sentencing

Reform Act of 1989. Tenn. Code Ann. § 40-35-101 et seq. The

petitioner contends that under the 1989 Act, the maximum sentence he

would have received is 35 years at 30%.

This matter is before the Court on motion of the respondent, by

and through the office of the Tennessee Attorney General, to dismiss the

petition pursuant to Rule 12.02 (6) of the Tennessee Rules of Civil

Procedure for failure to state a claim upon which relief may be granted.

The petitioner filed with the Department of Correction a request

for a declaratory order that his sentences were imposed erroneously; that

he is entitled to have his Class X sentence reduced in accordance with

the above language; that he is entitled to the sentence credits on the

reduced sentence; and that he is entitled to be released immediately.

The department denied the petitioner's request.

The petitioner first contends that his sentences were not properly

imposed and that as a result he was incorrectly granted custodial parole

from his 20-year sentence into his life sentence. He asserts that it was

"logistically impossible" for him to serve the Washington County

sentence consecutive to his Carter County sentence since the

Washington County offense was first in time. The Tennessee

Department of Correction is not responsible for the sentencing and

parole of inmates. The trial court in which an individual is convicted

is responsible for imposing judgment and sentence. Tenn. Code Ann.

§ 40-20-101 et seq. Only the Board of paroles has the authority to

determine an inmate's parole status. Tenn. Code Ann. § 40-28-103.

The petitioner next contends that adjustment to his sentence is

mandated by the criminal savings statute which was codified at Tenn.

Code Ann. § 39-1-105 at the times of his offense, conviction and

sentencing. Tenn. Code Ann. § 39-1-105 provided:

Repealed or amended laws -- Application in prosecution

for offense.-- Whenever any penal statute or penal

legislative act of the state is repealed or amended by a

subsequent legislative act, any offense, as defined by such

statute or act as being repealed 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 lesser penalty, any

punishment imposed shall be in accordance with the

subsequent act. 

The above provision was repealed in 1989 and reenacted as Tenn. Code

Ann. § 39-11-112.

Tenn. Code Ann. § 39-1-105 did not apply to sentences which

were already received when a subsequent act or amendment provided

for a lesser penalty. In State ex rel. Stewart v. McWherter, 857 S.W.2d

875 (Tenn. Cr. App. 1992), the Court of Criminal Appeals noted: "By

their terms, the former and present savings statutes relate to active

prosecutions, not past cases for which sentences are being served."

(emphasis in original). Furthermore, the language of the Criminal

Sentencing Reform Act of 1989 is clear in that it applies only to those

offenses for which a person committed or was tried and sentenced after

November 1, 1989. Tenn. Code Ann. § 40-35-117. The statute does
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not provide for a reduction in the petitioner's sentence. Therefore, the

petitioner is not entitled to a declaratory judgment in this regard.

The petitioner's claim that the Departmentt withheld sentence

credits to which he is lawfully entitled is likewise without merit. In his

petition, the petitioner claims that he is "entitled to earn, and should

have received the following sentence reduction credits at the same time

and retroactively as a matter of law":

1. good and honor time under Tenn. Code Ann. §§ 41-

21-212 and -214;

2. good conduct sentence credits under Tenn. Code Ann.

§ 41-21-229;

3. prisoner performance credits under Tenn. Code Ann.

§ 41-21-230; and

4. inmate incentive credits under Tenn. Code Ann.§ 41-

21-228.

However, when the petitioner was convicted he was not eligible to earn

any kind of credits. Tenn. Code Ann. § 39-1-703 provided that Class

X felonies were not subject to reduction for good, honor or incentive or

other sentence credit of any sort. The sentence terminated only after

service of the entire sentence, day for day.

In 1983, the law was amended to permit Class X felons to earn

Prisoner Performance Sentence Credits to reduce the sentence

expiration date, provided a waiver was signed by the inmate waiving his

right to serve his sentence under the law in effect at the time his offense

was committed. Ch. 400 Public Acts of 1983, § 3, 6-8. The petitioner

does not assert that he signed such a waiver.

In 1985, Class X felons became eligible to earn Prison Sentence

Reduction credits to reduce sentence expiration and release eligibility,

provided a waiver is signed by the inmate. Tenn. Code Ann. § 41-21-

236. The statute specifically provides that "sentence reduction credits

authorized by this section may be awarded only for conduct and/or

performance from and after the date a person becomes eligible under

this section." Tenn. Code Ann. § 41-21-236(c)(3). The petitioner was

not eligible to earn the § 41-21-236 sentence reduction credits until he

signed a waiver in 1989. Furthermore, as a Class X felon, the petitioner

is only eligible to earn the credits provided for in § 41-21-236. The

petitioner is not entitled to retroactive application of sentence credits as

he claims. See Henderson v. Lutche, 938 S.W.2d 428, 430. Nor is he

entitled to cumulative credits.

The scope of review under the common law writ of certiorari

covers only an inquiry into whether the board exceeded its jurisdiction

or acted illegally, fraudulently, or arbitrarily. The manner in which a

decision is reached is subject to review. The correctness of the decision

is not. Powell v. Parole Eligibility Review Board, 879 S.W.2d 871

(Tenn. App. 1994).

In support of his petition for a writ of certiorari, the petitioner

asserts that his right to equal protection under the Tennessee and United

States Constitutions is violated because he is treated differently than

those sentenced under the 1989 Act. The Stewart court also addressed

this equal protection argument. The court held that the legislature may

treat a particular class of persons differently so long as the classification

has a reasonable relationship to a legitimate state interest. The

petitioner forfeited his fundamental right to personal liberty when he

committed the offenses for which he was convicted and sentenced,

therefore, a lower level of scrutiny should apply in this case. However,

the Stewart court held that even if strict scrutiny is applied, the result

would not change because the purposes for distinguishing between the

two groups (those sentenced prior to November 1, 1989 and those
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sentenced after the Criminal [S]entencing Reform Act of 1989 became

effective) satisfy a compelling state interest and the means used are

suitably tailored to accomplish those purposes. The Stewart court

stated:

A primary purpose in the development and enactment of

the 1989 Sentencing Act was to address the pressing issue

of prison overcrowding through the creation of new

offense and sentencing standards. By limiting the Act's

application to persons who were not previously

sentenced, the legislature devised a partial solution to

prison overcrowding while avoiding the reopening of

cases in which persons have been validly sentenced

previously. Thus, the petitioner's right to equal protection

under the law has not been violated by his continued

incarceration under the original sentences. Id. at 877.

In further support of his petition for a writ of certiorari, the

petitioner contends that the Department's refusal to reduce his sentence

violated the Eighth Amendment's prohibition against cruel and unusual

punishment. The enabling legislation for the 1989 Act limited its

application to persons sentenced after November 1, 1989, while

specifically excluding its application to cases in which penalties were

already incurred. This language does not support the petitioner's

suggestion that the legislature must have considered the prior law to be

too severe. Simply because "a penalty is reduced by new legislation

does not mean the sentence under the old law was disproportionate."

State ex rel. William Jones v. McWherter, 199 Tenn. Crim. App. LEXIS

875. This Court finds that the petitioner alleges no facts to indicate that

the Department exceeded its jurisdiction or acted illegally. Therefore,

a writ of certiorari is not appropriate on the facts asserted.

The position of the petitioner is essentially a re-argument of State ex

rel. Stewart v. McWherter, 857 S.W.2d 875 (Tenn.Crim.App.1992). Stewart is

the law of Tennessee unless and until overturned either by the supreme court or

the general assembly.

Petitioner has received all of the sentence credits to which he is

lawfully entitled. None of the mathematical uncertainties evidenced in

Washington v. Dep't of Corrections, No. 01-A-01-9506-CH-00276, 1997 WL

272468 (Tenn.Ct. App.May 23, 1997) and Jones v. Reynolds, No. 01-A-01-

9510-CH-00484, 1997 WL 367661 (Tenn.Ct.App. July 2, 1997) are present in

this case. Issue is simply raised as to which sentence credits petitioner is entitled

and such has been adequately answered by the chancellor and is further answered

in Vernon Mauldin v. Tennessee Dep't of Corrections, No. 01-A-01-9801-CH00014 released by this court January 7, 1999.
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Finally, Appellant claims that he was not fully informed of his rights

pertaining to the signing of a waiver pursuant to Tennessee Code Annotated

section 41-21-236(c)(3). He claims that such failure to inform was responsible

for his failure to execute this waiver until 1989. An inmate convicted of a Class

X felony is not entitled to begin earning sentence credits until the signing of such

a waiver. Henderson v. Lutche, 938 S.W.2d 428 (Tenn.Ct.App.1996).

This issue was not raised in the trial court and may not be considered

on appeal. Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn.Ct.App.1979).

The judgment of the trial court is in all respects affirmed with costs

assessed against Appellant. The case is remanded for collection of costs.

___________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

______________________________________

BEN H. CANTRELL, PRES. JUDGE, M.S.

______________________________________ 

PATRICIA J. COTTRELL, JUDGE