# FILED
May 5, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JOHN C. TOMLINSON, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01A01-9804-CH-00204 v. ) ) Davidson Chancery TENNESSEE DEPARTMENT ) No. 97-2959-I OF CORRECTION, ) ) Defendant/Appellee. ) ) APPEAL FROM THE CHAN CERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR JOHN C. TOMLINSON #099306 NECX P. O . Box 5000 Mountain City, Tenn

essee 37683 PRO SE

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

s Division Second Floor, Cor

dell Hull Building 425 Fifth Avenue No

rth Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

PATRICIA J. COTTRELL , JUDGE CONCUR: CANTRELL , J. KOCH, J.-2- 

# OPINION

In this appeal , a state prisoner appeals the trial court’s dismi ssal of his actionin whic h h e contends that he is e ntitled to the benefit

of the 1989 Sentencing

Reform Act’s a

lle ged ly lesser sentences for armed robber

y, aggravated rape and aggravate d k i dnaping rather than the sentences imposed upon him atthe time of his convic tions in1983. He also conte nds he is entitled,

as a matter of

law , to certain sente

nce reduction cred

its. Finally, he c

ontends that, taken together, the

downward adjustme

nts of his se nte nce on the basis of these two contentions

would entitle him to

immediate release from custody. We affirm the dismissal of the p

risoner's petitio

n because it fails to s

tate a claim upon which relief can be granted. I. John Tomlinson is serving a sentence of 65 year

s in prison for the of fen ses of robbery by use of a deadly weapon (three counts), aggravated kidnaping and aggravated rap e. These offenses w ere commi tted in 1982, and Mr. Tomlinson was sente nced on April 28, 198 3 i n Davidson County and on December 15, 1983 in Wilson County. M r. Tomlinson filed a P etition for Decla

ratory Order wi

th th e Tennessee Department of Co rrection, asking th

e De partment to immedia tely release him on the basis of an i

nterpretation of

Tenn. Code Ann. § 39-1-105 and various statutes relating to sentence reduction credits.The Department refused th e Declaratory Or

der on August 12, 1997. On September 3,

199 7, Mr

. Tomlinson

filed a Petition for Judic

ial Review and/or Petition for a Declaratory Judgment and/or Pe tition for Common-law Writ of Certiorari in the Chancery Court of Davidson County, seeking judicial review of the Depar tment’s de cision.1 The law was changed by the Criminal Sente

ncing Reform Act of 1989 such that aggravated rob bery (which would i

nclude robbery using a

deadly weapon) is now a Class B f elony. Ten n. Code Ann.§ 39-13-4 02 (1997). Aggravated rape is now a Class A felony, Tenn. Code Ann. § 39-1 3-502, and aggravated kidnaping is a Class B felony, Tenn. Co de Ann. § 39-13-304 . Mr

. Tomlinson

was sentenced to a

tot al of 65 years imprisonment and asserts that under the 1989 Act, the maximum sentence he could receive for these offenses is forty y ears. In view of our holding, we need not address the accurac y o f Appellant’s asserti on regarding the max imum sentences und er the 1989 Act.

2 This section was codified at Tenn. Code An n. § 39-1-105 at the

time of Appellant’s offenses and senten cing, but was repealed as o

f November 1, 1989, and replaced by

Tenn. Code Ann. § 39-11-112 (1997), which is nearly identical in language. -3- The trial court dismisse

d Appellant’s claim

and granted a Tenn. R. Civ. P. 12.02(6) motion filed on behalf of the Department. The trial court held that Appellant was not entitled to

a decl aratory judgment reducing his sentence. Further, with regard to the Appellant’s claims under commo n law w rit of certiorari,the trial court foun d that the Appellant had alleged no facts indi cating the Department e

xceeded its jurisdic

tion or acted illega

lly. II. When the Appellant commi tted t he offenses of robbery by use of a deadly weapon, ag gravated rape and kidnaping in 1982, and when he was sentenced for those offenses on April 28 and December 15, 1983, these were Class X Felonies und

er Tenn. Code Ann. § 39-1-701 et seq. (1982) [repealed]. In 1989, the Cla ss X Felony Act wa s repealed and repl

aced by the Sente ncing Reform Act of 198 9. Tenn. Code A nn. § 40-35-101 et seq . Appellant contends that had he

been sentenced under the 1989 Act for the same offenses, his sentences would have been significantly shorter than the sentences he is now serving. 1 He further conte nds that his total combine d sentence should be reduced to the lowe

r total sentence ap

plicable after 1989

because of the criminal savings statute, T enn. Code Ann. § 39-1-105 2 (1982) [repealed], and by-4-

virtue of the equal pr

otection clause of th

e Tennessee Consti

tution. The criminal savings sta tute does not apply to se ntences already imposed at the time legislation was adopted which provided for a lesser penal ty. The crim ina l savings statute in ef fect when Appell

ant was sentenced a

nd until November of 1989 re

ad:

When ever

any penal statute or penal legislative ac t of th e state is repealed or amended by a subsequent legisla tive act, any offense, as defi

ned by the statute or a

ct being repealed or amended, committed while such statute or act w as in full force and effect shall be

prosecuted unde

r t he act or statute in effect at the time of the co mmission of the offe nse. In the event the subsequent act pr

ovi des fo r a lesser penalty, any punishment

imposed shall be in

a ccordance with the subsequent act. Tenn. Code Ann. § 39-1-1 05 (1982). As the Court of Crimin

al Appeals has stat

ed, "The crimina

l savings statutehas never been int erpr eted to apply to convictions and sentences which

were already receive

d when a subsequent act or amendment provided for a lesser penalty. By their

terms, the forme

r and present savings

statutes relate

to active prosecutions, not past cases for which sentences are being served." State ex rel. Stewart v. McWherter , 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992) , perm. to appeal denied (Tenn. 1993) . Therefore, the crimin al sav ing statute does not require that the sentences established in the 1989 statute be applied to any one already serving a previously imposed sentence. The court in Stewar

t also addressed an eq

ual protection chall

e nge base d

on Article XI, § 8

of the Tennessee Constitution which was identical to the issue M r. Tomlinson has raise d herein. Mr. T

omlinson argues that he and other s sentenced prior to the 1989 Act were not treated equally to identi cal offen ders who were sentenced a

fter th e 1989 law became effective. The Stewart court3 The Stewart courtque stioned whether the strict scrutiny test was applicable

in that case since a pr

isoner has no fundame

ntal right to

liberty after validconviction and sentenc ing, citing several cases in support of that positi on. Id. At 876. In State v. Tester , 879 S.W.2d 823 ( Tenn. 1994) our Supr

eme Court, citing Stewart , stated, “Although the right to personal liberty is fundamental, that right is not implicated after a person is convicted of acrime and the only iss ue is the manner of service of the sentence imposed.” The Stewart court, finding a compelling state interest, determined that the application of the 1989 Act’s shortersentences only to per sons who were not al

ready sentenced unde

r prior law would meet the higher strict scrutiny standard even if t hat standard were applicable. -5- concluded that the 1989 Act surv ived equ al pr otection scrutiny because the purposes for distinguishing between prisoners sentenced under the Act and those sentenced under prior law “s atisfy a compelling s tate interest

and the meansused

are suitably tailored to accomplish those purpose s.” 3 Id. at 876. In identifyi ng those interests, the

Court noted: [T]here is a leg

itimate state inter

est at stake in

not allowing the reopening of a virtua l Pandora's box of all cases involving sentences imposed before November 1, 1989, but which are presently being served by confinement, pa role, or probation. Society has a strong interes t in preserving the f

inality of criminal litigation resulting in a conviction and s entence which were valid at the time of their imposi

tion

. The wholesale

unsettling of final jud

gments of convict ion and sentence which would occur if the 1 989 Act were applicable as petitioner claims is a price the legis lature was justifi

ed in not paying when it provided that the Act would not apply to previouslysentenced offenders....Societ y i s not required to undergo such a disruption of its criminal justice system. Id. at 877 (quoting State ex rel. Crum v. McW herter , 1992 WL 99029 (Tenn. Crim. App.1992), perm. to appeal denied (Tenn. 1992)). Thus, Appellant’s continued incarceration under his original sentence does not violate his right t o eq ual protection under the law. The trial court properlydismissed Appellant’ s claim that he should b e resentenced u

nder the 1989 Criminal Sentencing Reform Act. See Wilson v. State , 980 S.W.2 d 19 6 (Tenn. App. 1998).4 Obviously, if Mr. Tomlinson was not, in fact, incarcerated until after July 1, 1983, he would hav e become eligible on the date of his incarce ration. -6- III. Mr. Tomlinson’s second is sue involves his eligibil i ty f or various

s entence reduction credits.Prior to July 1, 1983 t hose convicted of Cla

ss X felonies were not entitled t o sentence reductio

n for good, honor, inc

entive or othersentence reduction credits of any sort. Tenn. C

ode Ann. § 39-1-703 (1982) [repealed]. In 1983, the

General Assembly adopted Public Chapter 400, which became effective July 1, 198 3. In pertinent part, Section 3 of Chapte

r 400 stated: Notwithstanding

the provisions of this c hapter to the contrary, a person convicted of a Class X fe l ony shall be eligible to receive prisoner

performance sent

ence credits

as provided in Tenn. Code An n. § 41- 21-230 to reduce the expiration

date of such person’s sentence.

The provisions of this subsection sha

ll not affect the rel

ease classificat

ion eligibility date of C

lass X offenders. Tenn. Code Ann. § 40-28- 301(I) (1983 Supp.) [repealed]. Appellant is eligible , as a Class X fe lon, for those cre

dits available through Tenn. Code Ann. § 41-21-230, from Jul y 1, 1983, the effe

ctive date of Public Chapter 400 4 , but only for those cr

edits. In 1985, th e Gener al Assembly repealed those provisions then codified atTenn. Code Ann. §§ 41-21-212, -214, -228, -229, and -230 (various sentence reduction credit eligibility statutes)

and enacted Tenn.Code Ann. § 41-21-2 36 (1997). 1985 Tenn. Pub. A cts ch. 5 §§ 12 & 14. This provision allowed inmates convicted of Class X

felonies to earn se

ntence reduction cr

edits as follows: Any person who committe d a felony, including

any Class X felony, prior to Decembe r 11, 1985 may become eligible for the sentence reduction

credits aut

hori zed by this section by signing a writt en waiver waivin g his right to serve his sentence under the law in effect at the time h is crime was committed. However, sentence reduction credits authorized-7- by this sect ion may be awarded onl y for conduct and/or performance from

a nd after the date a

person becomes eligible under this section

. Tenn. Code Ann. § 41-21-236(c)(3) (1990). (Emphasis added.). Tenn. Code Ann. § 41- 21-236(g) specifica lly authorizes the Department

to continue the application of certain previously enac te d sentence credit programs to any inma

tes to whom they appli

ed at the tim

e of e nactment and who do not sign the written waivers provided for in § 41-21-236(c). Thus, it appears that Appellant was eligible to earn those s entenc e reduction credits defined and establ ished in former § 41- 21-230, pursuant to Tenn. Code Ann. § 40-28-30 2 (1983 Supp.) [rep

e aled] fro m its effective da te until he signed a § 41-21-236(c) waiver in 1986. From that point, Appellant was eligible to earn the credits

available under T

enn. Code Ann. § 41- 21-236. Thus, Appellant has been eligible fo r ce rtain sentence re duction credits since

July 1, 1983, but for only one kind of credit at any time. The Department asserts it has treated Mr. Tomlinson in ac cordance with these conclusions, and Mr. Tomlinson does not dispute that assertion. From all of the above, it

is clear th at Mr. Tomlinson’s a rguments regarding cu mulative and retroactive eligibility for other types of sentence reduction credits have no basis in the s tatutes th emselves. This is fatal to his claim since Mr. Tomlinson’s eligibility for sentence reduction credits dep end s upon the language of the st atutes creating, authorizing, or defining such credit

s. Jones v. Reynolds , 1997 WL 367661, *3 (Tenn. App. Jul y 2, 1997). A review of t he st atutes relied upon by A ppellant demonstrates that, as a Class X felon, he was not eligible f

or the sentence re

duction credits esta

blished in any of the statutes he cites, except for T.C.A . § 41- 21-230. With regar d to those § 230 credits , the Department agre es that he was eligi

ble for such credit

s until his 1986-8-

waiver and has credited him with them. To the extent Appellant’s claims can be construed as an argument that he is entitled to both §§ 41- 21-230 and 41-21-236 credits for any period

of time, Tenn. Code Ann. § 41-21-236(c)(3), quoted above, clea rly provides for ele

ction by the prisoner of

the one type of

credit he prefers. See Jones v. Reynolds , 1997 WL 367661 (Tenn. App. July 2, 1997). By signing his wai ver in 19 86, Mr. Tomlinson

chose the type of cr

edit he preferred. H

e is not entitled to cla

im both kinds of credits. Additionally, a plain

reading of Tenn. Code Ann. § 41-21-23 6 clearly indicates the General Asse mbly ’s int ention regarding its applicability. In par ticula r, § 41-21-236(c)(3),

quoted above, specif

ically states the me

thod for applying § 41-21-236 to

previously convicted C

lass X felons. It is prospective only, and avai lable only upon a writ ten waiver. Pe

titioner has no right to eligibility for § 41-21-236' s senten ce reduction credits prior to signing the waiver in 1986 and has no basis

for claiming retr

ospective applicati

on prior to § 41-21- 236's enactment. Finally, Appellant has raised on appeal an issue not r aised in the trial court. That issue is wheth er he was fully

informed of his § 41-21-236(c) waiver option and, therefore, whether his eligibility for sentence reduction credits under § 41-21-236 should begin earlier. It is well settled that an issuecannot be raised for the first time on app

eal. Irvin v. Binkley , 577 S.W.2d 677, 679 (Tenn. App. 1979); Stewart Title Guitar Co. v. F.D.I.C. , 93 6 S.W.2d 266, 270- 271 (Tenn App. 1996). The trial court herein was not p resented with this i ssue or any factual information necessary to determine the issue. This Co urt can only consider such matte

rs as were brought to the attention of the trial court.-9- IV. Mr. Tomlinson’s claims are based solely on legal a rguments. In light of the clear holdings in Stewart v. McWhe rter and Wilson v. State , and in l ight of the clear language of the statu

tes involved, Mr. T

omlinson’s petition fa

ils to state a cause of

action. We hold that neither the criminal savings statute nor the Tennessee Constitut

ion mandate

that the 1989 Sentencing Act be retroactively applied to Mr. Tomlinson’ s 1983 sentence. We further hold

that Mr. Tomlinson is not entitled to eligibility for the statutorily created sentence reduction credits of Tenn. Code Ann. §§ 41-21-212, -214, -228, or -229 . We therefore affirm the trial court's dismissal of th is case, and remand the case for whatever further proceedings may be required. The costs of this appeal should be taxed to Mr. Tomlinson.

__________________________ PATRICIA J. COTTREL

L, JUDGE CONCUR:

__________________________________ ____ BEN H. CANTRELL, PRESIDING JUDGE (M.S.)

__________________________________ ____ WILLIAM C. KOCH, JUDGE