# FILED

January 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk 

### DAVID WILLIAMS, ) ) Petitioner/Appell

ant, ) 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, T

ennessee 37683

JOHN KNOX WALKUP Attorney General and Reporter
MICHAEL E. MOORE Solicitor General
MICHAEL L. HAYNIE Assistant Attorney General Civil Rights and Claim

s Division 425 Fifth Avenue No

rth Second Floor, Cor

dell Hull Building Nashville, Tennessee 37243-0488 ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

Petitioner, Dav

id J. Williams, on July 29, 1997, filed in the Chancery Courtof Davidson County , Tennessee, a petitio n for ju dicial review and /or declaratory j udgment and/or c ommon-law

writ of certiora

ri.

Acting pro se he asserts tha t he is being held unconst ituti on ally and illegally by

the defendant.

He contends that he is entitled to immediate release beca use his
sentence structure is incorr ect and illogical and

further that he is e

ntitled to immediate

release because he should be re-sentenced under the Cri minal Sentencing

Reform Act of 1989, a nd b ecause he is entitle d to both retroactive and cumulative sentence cre dits . He further as serts that it is a viol ation of constitutional equal protection rights and constitutiona

l freedom from cruel a

nd unusual punishment for

him to be treated

differently from individuals sentenced under the Crim

inal Sentencing Ref

orm Act of 1989.

Petitionerwas convicted of a ggravated rape on Jul

y 22, 1981, the rape having occurre d on June 29, 1980 in Washington County. The defendant was also convicted of rape on February 12, 1981 with this offen s e having occurred in Carter County, Tennessee. The sentences ran consecutively. The aggravated rape co nvicti on was fo r a Class X felony.

The learned chancello

r a ddressed these issues

by compreh

ensive memorandu

m which is adopte

d as the opinion of the c

ourt in part: The petitioner, pro se , is an inma te in t he custody of the Tenn essee Department of Correction at the Northeast Correctional Center in Mountain City, Tennessee. He has filed a petition in which he seeks a declara

tory judgme

nt: 1) that his sentence as imposed by the courts is erroneous; 2) t

hat he is enti

tled t o 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 w

ith held; a nd 4) that he is entitled to be released imm edi ate ly. Alternatively, the petitioner seeks review of the decision of the D epartment of Correction to deny his request for a declaratory order under the

common law writ of c

ertiorari. The petitioner

committed the offense of aggravated rape on June 29, 1980 and the offense of rape on February 12, 1981. O n July 22,-3- 1981, the petitioner wa s sen tenced to life imprisonment for the Washington County Aggravated Rape conviction. This life sentence is consecutive to the petitioner' s 20 year sente nce for his Carte

r County Rape conviction. At the time of the pe titioner's offe

nse and at the time o f 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 rep laced by the Criminal Sentencing Reform Actof 1989. Tenn. Code Ann. § 40-35-101 et seq . T h e petitioner contends that unde

r the 1989 Act,

the maximum sentence he would have received is 35 years at 30%. This matter is before theCourt on motion of the respondent, by andthrough the office of the Tennessee Attorney General, to dismiss the petition pursuant to

Rul e 12.02 (6) of the

Tennessee Rules o

f Civil Procedure for failure to state a claim upon which relief may be granted. The petitioner filed with the Department of Correction a r

equest for a declaratory

order that his sen

tences were im

po sed erroneously; that he is entitled to hav

e his ClassX sentence redu ced in accordance w

ith the above language; that he is ent itled to the sentence credits on the reduced sentence; and tha t he is entitled to be

released immedia

tely

. The department d

enied the petition

er's request. The petitioner

first contends tha

t his sentences we

re not properly imposed andthat as a result he was inc orrectly g ranted custodial

parole from his 20-year

sentence into his life sentence. He asserts that it was "logistica lly

impossible" for hi

m to serve the Washin

gton County sentence conse cu tive 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 s eq . Only the B oard of paroles h as the authority

to determine an inmate's parole status. Tenn. Code Ann. § 40-28-103. The petition e r next contends that adjustment to his sen

tence is mandatedby th

e criminal savings statute which was codified at Tenn. Code Ann. § 39-1-105 at the times of his offe nse, conviction and sentencing. Tenn. Code Ann. § 39-1-105 provided: Repealed or amended laws --

Application in

prosecution for offense.-- Whenever any penal statute or pe na l legislative act of the state is r epe ale d or ame nde d by a subsequent

legislativ eact, any offense, as defined by such statute or act as being rep ealed or amended, committed while such statute or

act was in full force and effect shall b e prosecuted under such act or statute in effect at the time of the co mmission of the offense. In the event the subsequent

act provides for

a l esser penalty, any punishmentimposed 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 alre adyreceived 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 ter ms, the f

ormer and present savings statutes relate to active prosecutions , not past cases for w hich sentences are being served." (emphasis

in o rigina l). Furthermore, the language of the Criminal Sentencing Reform Act

of 1989 is clear in tha

t 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-4- not provide for a

reduction in the petitioner's sentence. Therefore, the petitioner is not entitled to a declaratory judgment in this regard. T he petitioner's claim that the Departmentt withheld sentenc e creditsto which he is lawfully e ntitled is likewise w

ithout merit. In

his petition, the petitioner claims that he is "entitled to earn, and should have received thefollowing sentence reduction credi

ts 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 c redits under Tenn. Code Ann. § 41-21-229; 3. prisoner

performance

credits under

Tenn. Code Ann. § 41-21-230; and 4. inmate

incentive credi

ts under Tenn. Code Ann. 

### § 41- 21-228. However, when the petitioner was convicted he was not eligible to earn any kind of credit

s. Tenn. Code Ann. § 39-1-7 03 provided that Cla

ss X felonies were not subject to reduction for good, honor or incentive or o ther sen ten ce cr edi t of any s ort . Th e sen ten ce t erm ina ted onl y a fte r ser vic e of t he en tir e sen ten ce, d ay for day. In 1983, the law was amend ed to permit Class

X felons to earn P risoner Performance Sentence Credits to reduce the sentence expiration date, provided a waiver was signed by the inmate waiving h

is right to serve his

sentence under

the law in effec

t 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

redu ce se nte nce e xpi rat ion and rel ease eli gibi lit y, provideda

waiver is signed by the inmate. Tenn. Code Ann. § 41-21- 236. The statute specifically provides that "sentence

reduction credi

ts authorized by this section m ay be awarded only f or conduct and/or performance

from and after the date a pers on becomes eligible under this section." Tenn. CodeAnn. § 41-21-236(c)(3). The petitioner was noteligible 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 provi d ed 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. Noris he entitled to cumulat

ive 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 whi ch a decision is reached is subject to review. The correctness of the decision is not. Powell v. Paro le Eligibility Revi ew Board , 879 S.W.2d 871 (Tenn. App. 1994). In support of his petition for a w rit of c ertiorari, the petitioner assertsthat his right to equal protection under the Tennessee and United States Constitutions i s 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 re

lationship to a leg

itim ate sta

te interest. The petitioner forfeit ed his fundamental right to personal liberty when he committed th e offen ses 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 scrut i ny 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-5- sentenced after the Criminal [S]entencing Reform Act of 1989 became effective) sat isf y a compelling state interest and the means used are suitably tailored to acco

mplis h t hose purposes. The Stewart court stated: A primary

purpose in the development and enactment of the 1989 Sentencing Act w as to address the pressing issue of prison overcrowding through the crea tion of new offense and sen te ncing stand ards. By limit ing the Act's application t o pe rsons who were no t previously sentenced, the legislature de vised a partial so lution to prison overcrowding while avoiding the reopening of cases in which persons have b een validly sentenced prev iou sly. Th us , the petitioner's right to equal protection under the law h as not been violated by his continued incarceration under the original sentences. Id. at 877. In further support o

f his petiti on for a w rit of certiorari, the petitioner contends that the Department's refusal to reduce his sentence violated the Eighth Amendment's prohibition against cruel and unusual puni shm ent. The enabling le gislation for the

1989 Act limited its applic ation to persons sentenc ed after Novemb

er 1, 1989, while specifically

excluding its application to cases in which penal ties wer e already incurred. This lang uag e does not s upport the petition er's suggestion

that the legislaturemust

have considered the prior law to be too severe. Simply because "a penalty is reduced by new l

egis lation does not mean the sentence under the old law wa s disproportionate." State ex rel. William Jones v. McWherter , 199 T enn. C rim. A pp. LEX IS 875. This Court finds that the petitioner all

eges 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 petition er is essentially

a re-argume

nt of St ate ex rel. Stewart v. McWherter , 857 S.W.2d 875 (Tenn.Crim.App.1992). Stewart is the law of Tennessee unless a

nd until overturned either b y the suprem

e court or the gen eral ass embly.

Petitionerhas receiv ed all of the sentenc e credits to which h

e is lawfully entitled. None of

the mathem

atical uncertaint

ies evidenced in Washington v. Dep't of

Corrections , No. 01-A-01 -9506-CH-0 0276, 199 7 WL 272468 (Tenn.Ct. App.May 23, 1997) and Jon es v. Reynolds , No. 01-A-01- 9510-CH-00484,1997 WL 367661 (Tenn.Ct .Ap p. July2, 1997) are prese nt in this case. Issue is sim

ply raised as to which sentence credits pe titioner is entitled and such has been adequat ely answered

by the chancell

or 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.-6- 

### Finall y, Appellant claim

s that he was not full

y informed

of his rights pertainingto the signin g 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 exec

ute this waiver until 1989. An inmate convi cted of a Class X felony is not enti

tled to begin earning sentenc e credits until the si

gning 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 c ourt is in all respec ts affirmed w

ith costs assessed against Ap

pellant. The case is remanded f or collection of cost

s.

__ _____________

___________________

_ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ ____ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ ____ PATRICIA J. COTTRELL, JUDGE