# FILED
Novemb er 1, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk RICHARD P. RIENHOLTZ, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9512- CH-00570 VS. ) ) Davidson Chancery ) No. 94-63-II CHRISTINE BRADLEY, ) Commissioner, and TENNESSEE ) DEPARTMENT OF CORRECTION, ) ) Respondents/Appe llees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LY LE, CHANCEL LOR

JOHN G. OLIV

A ROBERT P. BALLIN GER Washington Square, Suite 41 7 222 Second Avenue, North Nashvil le, Tennessee 37201 Attorneys for Petitioner/ Appellant CHARLES W. BURSON Attorney Gen eral & Repor ter PATRICIA C. KUSSMANN Assistant Att orney Gener al 404 James Roberts on Parkway Suite 2000 Nashvil le, Tennessee 37243 Attorney for Respondents/Appel lees

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J. LEW IS, J.- 2 - 

## O P I N I O N

Richar d P. Rie nho ltz, a n inm ate i n the Ten ness ee pr ison sys te m petitioned the Chancery Court of Davidson County for a declaratory judgmentarguing that the Department of Correction ’s deci sion to ext end his parole eligibil ity date for escapewas ille gal. The cha ncell or dis missed the pet ition and w e affirm.

I.

In 1981, Mr. R ienholtz r eceived a s entence offort y-five years i n prison for two counts

of murder, a Cla ss X felony . Under the l aw then in e f fect he had t o serve forty percent

of the sentence to be e ligible for parole, and he could notear n sentence credits to advance his parole e ligi bility date. A later change in the law reduced the mandator

y time to be served to t hirty- five percent of the sentence.

In 1990 Mr. Ri enholtz was reclassi fied as a minimum secur ity prisoner and placed on work release status. As a conditi on of being placed on work release he signed an agreem ent con taining t he fol lowing:

I understand that i f I am convicted of a felony except escape committed while on work, educational, re stitution, or other program which allows me the privile ge of supervis ed or un su pervised release into the community I must serve the remainder

of my term w ithoutparole or further participation in any such programs. I als o underst and that if I escape from any of these programs, the de part ment has the authority to pe nali ze or punish me i n accordance w ith department a l poli cy. This

is consi sten t w ith the l aws of Ten nessee, specifically TCA 40-28-123(b)(1).
Approximately three months later, M r. Rienholt z escaped and stayed at large for three and a

half m onths. He pled guil ty to the e scape ch arge and received an additional one year sentenc e. In addition, i n accordance w ith its poli cy No. 502. 02,- 3 -

the Department

of Correction extended Mr. Rienholtz’s release eligibility date on his original sentence by twenty percent. Policy 502.02 states:

In all cases in which an in mate is found gu ilty of the d is ciplinary

offense of Escape, includi ng Escape from cust ody and failure to return from a pass or furlou gh, i n a ddition to any other

punishment imposed, the offender ’ s parole or release eligibil ity date s hall be ext ended by adding thereto an additional 2 0 percent of the offender ’s o riginal maximum se ntence, or by extending the inmate’s par ole or release eligibi lity date to the sentence ex piration date , whichever is less.

Mr. Rienhol tz filed a pet ition for a decl aratory or der under

Tenn. Code Ann. § 4-5-223 of the Admi nistrative Procedures A ct. He a rgued that the policies adopted for t he Department of Correcti on’s Disci plinary Board draw a distincti on between escape and breach of trust, and that he should have been discipl ined for the latter. The difference, apparentl y, is an e xtension of the prisoner’s parole elig ibi lit y date by tw enty percent in the case of escape an d merely a l oss of sentence credits or a period of puni tive seg regation for b reach of trust.

The Department

of Correction responded to the p etition by a letter from the Department’s legal assi stan t, deny ing any consideration because “disciplinary decisionsare not subjec t to appeal under the Uniform Admini strative ProceduresAct.” Mr. Rienholtz then filed a petition f or a declaratory judgmentin the Chancer y Court o f Davidson Coun ty, which the court dismissed because it was n ot f iled within sixty da ys of the date the Departme nt of Correction denied con sideratio n of the pe tition for declaratory order. We reversed on appeal, holding tha t the sixty day provision in Tenn. Code Ann. § 4-5-322(a)(1) did not apply t o a case whe re the agency refused to convene a con tested case hear ing. See al so Taylor v . Reynolds , No. 01-A-01 - 9401-CH-00016 (filed in Nashville, June 10 , 1994).

On remand, the Chanc ery Cour t addressed the a rguments rai sed in the petition , found them insu fficient as a mat ter of law, and dismissed the petitio n fo r- 4 -

failing to state a ca use of action. In so doing, how ever, the c hancellor con sidered aff idavitsfiled by both parties. W e will, therefore, treat the judgment be low as a summary judgment. See Rule 12.0 2, Tenn. R. Civ. Proc.

II.

The focus in this case h as con stantly c hanged since M r. Rienholt z soughtthe first decl aratory or der from the Department

of Correction . We noted that in the first appeal he sought a dec laration that he should havebeen puni s hed for breach of trust rather than fo r escape. His petition in the Chancer y Court a lleges that in addition to theescape-breach of trust arg ument, he sought a decl aration that the disciplinaryrule was

null and void, that the r ule discri minated agai nst inmates wi th more seriousoffenses, and that he did not violat e the agreement hesigned when he was placed on workrelease. In an amended petition, M r. Rienholt z also al leges that the Department of Cor rection failed to bring th e rule to his attention in ac cordance w ith Tenn. Code Ann. § 41- 21-218.

On remand, Mr. R ienholtz fil ed a briefin whic h he asserted that he did not violate t he agr eement he signed when he was placed on work release; that he was erroneously

discipli ned for escape rathe r than breach of tr ust; that he was given a disproporti onate sentence for es cape; that the effect of his escape was

never broughtto his attention in accordance with Ten n. Code Ann. § 41-2 1-218; that the twenty percentaddition to hi s sentence v iolated his r ights to due process and equal protection; and that extendi ng his rel ease eligi bility date by twenty percent vi olated the constitutional prohibition against e x post facto laws.

III.- 5 - Mr. Rienholtz

does not rais e all the issues on appeal that he raised in his amended petition in t he chancery court. Hi s first iss ue addresses thechancellor’s holding that he wai ved his r ight to rel y on the law as it exi sted prior t o July 1, 1982. See T enn. Code Ann. § 40- 35-117. Inherent in this arg ument is an asser tion that policy502. 02 ca nno t be a ppli ed to him b ecau se it wa s ado pted aft er he wa s first sentenced to the D epartment of Corre ction.

In her memor andu m thechan cel lor fo und, “The petitioner’s sworn affidavit, signed May 12, 1995, indicates that the pe titioner signed a waiver of his right to serve his sentence under the laws in effect on the date the indi ctment allege s the offense was committed.” The petitioner’s designation of the record does not include the May 12, 1995affidavit. We are, therefore, handi capped in rev iewing the question of what wa iver th e pet itio ner e xe cut ed and we would be justifie d in taking the chancellor’s finding asconclusive. State v. Banes , 874 S.W.2d 73 (Tenn. Crim. App. 1994).
Nevertheless, there is in the record a form signed by Mr. Rienh oltz on March 12, 1986 i n which he waived “for the sole a nd exclusi ve purpose of receivi ng Sentence Redu ctio n Cred its . . . .” hi s right to se rve his sentences under the pri or

law. He argu es o n appeal that the only eff ect of this waiver was to allow him to begin accruing sentence credi ts under the subsequent law; it did not allow the state toapply the penalties for escape that w ere enacted after hi s origi nal sentence.

The waiver states that for the sole and ex clus ive purpose of recei ving sentence reduction cr

edits Mr. Rienholtz

waived the right to serve hi s sentencesunder the law in effect at the time he was indicted. He acquired the right to earn sentence creditsand he gaveup any rights t o serve hi s sentences under the prior l aw. Thus, allowinghim to accrue sentence credits was notthe only effect of the waiver . The sole and e xclus ive language in the wai ver refers to what hewas get

ting in return for- 6 -

his waiver, not what he was g iving up. We hold that the waiver of his rig hts under the prior law makes him sub ject to the current law , the law in effect after the 1989 amendments.

We also think Mr. Rienholtz

overlook

s the fact that he s igned the “Assignment

of Responsibil ity” w hen he was pl aced on wor k relea se. In it h e acknowledg ed that if he escaped f rom work release the Department of Correction had the a utho rity to pena lize or puni sh hi m in a ccord ance with de part men tal p olicy.

IV.

Mr. Rienholtz argues on appeal that applying policy 502.02 to him violatesArticl e I Sectio n 10 of the United St ates Constitut ion, whic h prohibits t he states from passing ex post facto laws. W e fail to see, however, how t his constitutional provisi on is implicated.

The United States Supreme Court has said that the ex post facto provisi ons of our

constitution are “aimed at l aws that retroactively alter the definition of crimes or increase the punishmen t for criminal acts.” Californi a Departm ent of Corrections

v. Morales , 514 U.S. ____ at ____ (1995) . Policy 502.02 was i n effect at the ti me Mr. Ri enholtz escaped in 1990. Th erefore, the conseque nces that could result from his escape were fixed and hav e not been increased by subseq uent legislat ion.

V.

Mr. Rienholtz

also argue s that the Depart ment of Correcti on violated his right to du e process by failing to br ing Polic

y 502.02 to hi s attention.- 7 - Tenn. Code Ann. § 4 1-21-218 provides: Such of the foregoing regulati ons with a ll others ado pted by the general as sembly or the commissioner

in reference to the police and gover nment of the penitentiar y, which it is necessary that the convicts should know . . . shall be pr inted so as to be conveni ently read, and set up by the warden, i n a c ons picuous place, and also read an d explained by the warden to each convict on his admission to t he peni tent iary.
Assuming that, as he all eges, pol icy502.02 was not brought to Mr. Rienholtz’s attention, what is the eff ect of that lapse on the abi lity of the D epartment of Corr ectio n to app ly t he poli cy to him?

The statute itself does not say what such effect will be, and it is arguable that the statute was passed for the Department’s benefit as an aid t o maintaining order in the prison. By making sure the inmates kn owthat thei r acts have consequencesprison dis cipline w ill improv e. But the main reason the po licy should applyto Mr. Rienh oltz is the fact thathe received a notice that s ubstantially complied with the statute. W hen he was assigned to work release he si gned an acknow ledgm e nt that if he escaped w hile on that pr ogram the Depar

tment of Correction could punish hi m in accordance with departmental poli cy. We do not think it is criti cal that the precise nature of thepunishment w as not set out in the agreement. It is sufficient if the inmate knows that the Department of Cor rection has t he power to impose additional discipli nary sanct ions for escape.

The judgment of the cour t below i s affirmed and the cause is remanded to the C han cery Co urt o f Davi dson Coun ty fo r any f urth er pro ceed ings n eces sary. Tax the costs

on appeal to the appe llant.- 8 - _____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE