# FILED
January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk JIMMY WAYNE WILSON, ) ) Plaintiff/Appellant, ) ) JAMES T. FITE, VIVIEN TROY C OOK, ) DEWEY SCOTT FRAZIER, JERRY L. ) CHILTON, PAUL CARRIER, ET AL., ) ) Plaintiffs, ) Appeal No. ) 01-A-01-9706-CV-00266 VS. ) ) Davidson Chancery STATE OF TENNESSEE, GOVERNOR ) No. 93C-91 NED RAY McWHERTER, PAROLE ) ELIGIBILITY REVIEW BOARD & ) MEMBERS, JIM THRASHER , ) JOHN S. WILDER, JIMMY NAIFEH, ) AND CHARLES BURSON, ET AL., ) ) Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDG E JIMMY WAYNE WILSON, #108253 Morgan County Regi onal Correctional Faci lity P. O. Box 2000 Wartburg, Tennessee 37887 Pro Se/Plaintiff/Appellant JOHN KNOX WALKUP Attorney General & Repor ter ABIGAIL TURNER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243-0488 Attorney for Defendants/Appellees

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - Sixinmates in the custody of the Depa rtment of Correction brought a declaratory judgm ent suit against the Parole Eligibility Review Board (“the Board”), against its

members individually, and against a number of other state off icials. The complaintalleged that the defendants had v iolated the plaintiffs’ equal protection and due proces s rights, by failin g to recalculate their sentences under the Criminal Sentencing Reform Act of 1989 and/or failing to grant them an accelerated Release Eligibility Date (“RED”).

The trial court dismissed the complaint for failure to state a claim upon which relief may be granted. One of the six inmates appea led, restat ing the same arguments on appeal as were advanced in the trial court. We find that all of appellant’s arguments

have already been foreclosed by statute or by case law, and we affirm the court’s order.

I.

The appellant, Ji mmy Wayne Wilson was sentenced t o life imprisonmen t
as a habitual criminal on July 25, 1985. His triggering offense was a 1984 rape. It is unclear to this court when Mr. Wilson would be eligible for parole under the law in effect at the time he was sentenced.

With the passage of the Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-101 et seq., the Legislature totally revised the stat e’s criminal code, replacing the drastic penalties associated with the habitual criminal statute with
a mor e graduated sentencing sc heme. By the specific terms o f the Act, the ne w sentencing schedule was to apply only to persons sente nc ed on or after November 1, 1989. Tenn. Code Ann. § 40-35-117. Ac cordi ng to Mr. Wilson, if he had been sentenced under the new act, his sentence for simple rape would have been o nly eight to twelve y

ears.- 3 - In 1992, the Legislature enacted Tenn. Code Ann. § 40-35-601 et seq., which established a new body,the Parole Eligibility Review Board, to r

eview the sentences of those conv icted a s habitual criminals before N ovember 1, 1989. The Board was authorized to r econsider the parole elig ibility dates of such offenders, but
a subsequent amendment excluded from r eview those offenders who se trig gering offense was “an offense against the per son.”

In appropriate cases the Board could grant a new release eligibility dat e, comparable to that which the offender would have been eligible for if he were convicted and sentenced under the 1989 Act. On June 30, 1993, the Board informed Mr. Wilson by letter that upon review ing his sentence and conv iction hi story, it had decided by a majority vote not to grant him a new RED.

II.

The Board went out of existenc e o n July 1, 1993, in accordance wi th Tenn. Code Ann. § 40-35-605, its w ork presumably completed. Several individuals who had been sentenced as habitual cri minals, and who were denied an acc elerated RED by the Board filed suit against it, asserting theories similar to thos e advanced by Mr. Wilson in this case.

In Pow ell v. Par

ole Eligibility Review Board , 879 S.W 2d 871 (Tenn. App. 1994) we ruled that the decision to amend or not to amend a prisone r’s parole eligibility date was discretionary with the Bo ard, and was not me rely a minister ial duty. Although the petitioner i n that case, and the petitioner i n Smith v. Parole Eli gibility Review Board, 891 S.W.2d 226 (Tenn. App. 1995) both argued that it was a violation of the equal protectionclause for the Board not to treat all habitual criminals

the same,
we found there to be no constitutional violation in the individualized co nsideration of each prisoner’s record, to determine which of them might be appropriate candi dates for early release.- 4 - We note that the statute provid es that the decision of the Board i s final and not subje ct to further review, Tenn. Code Ann. § 40-35-602(c). However, this court has found a narrow excepti on to that finality in that an individual who could pro ve that the Board had exceeded i ts jurisdiction, or ha d acted illegally,fraudulently or arbitrarilymight be entitled to a Writ of Certiorari. Powell v. Parole Eligibi lity Review Board, supra. But there is absolutely no evidence in the present case to indicate that the Board has acted in reference to Mr. Wilson in such a way as would support a Writ of Certiorari.

III.

The petitioner

also argues that it was a violation of hi s due process and equal protection rightsnot to re-sentence him in accordance with the 1989 guidelines. As t he Assist ant Atto rney Gene ral point s out in a we ll-written and comp rehensive brief, the argument that due process and equal protection req uires the resentencing of those convicted and sentenced under the earlier

law has already been consider ed and rejected in the

case ofState of Tennessee ex rel. Jones v. McWherter, Court of Criminal Appeals No. 01- CO1-9204-CR-00124 (filed N ovember 18, 1992).

In that case, the court summarized the law applicable to equal protec tion claims as follows: Equal pr

ote cti on requires that all per sons similarly situated be treated alike, but

the legislature may t reat different groups differently , as long as the classification it esta b lishes for differential treatment i s rational, and is relat ed to a legitimatestate interest. (This is sometimes known as “ the rational basis test.”) If the classification disadvantages a suspect class, or affects the

exercise of

a fundamental ri ght, then the courts subject the classification to a higher standard of constitutio na l examination, known as “strict scrutiny.” Under strict scrutiny, a statute will be upheld onlyif it is “precis ely tailored to serve a compelling government interest.”

Personal liberty is a fund amenta l right requ iring appl ication o f strict s crutiny. See Doe v. Norris , 751 S.W.2d 834 (Te nn. 1988).- 5 - The Court of Criminal Appeals held that by virtue of his conv

ictions and lawfullyimposed sentence, Mr. Jones ha d lost the fundamen ta l right to personal libe rty for the duration of that sentence, and th at the courts were ther efor e no t requi red to apply strict scr utiny to his claim that a subsequent change in th e sentencing laws was a vi olation of his equal protecti on rights. Se e also Wright v. Trammel , 810 F.2d 589 (6th Cir. 1987).

The court went even further, and held that even under the strict scrutiny standard, the petitioner would not be entitled torelief, because of the compelling state interest in preservi ng the finality of convictions and sentences that were v alid at the time of their imposition. We se e no way i n which the situation of Mr. Wilson diff ers from that of Mr. Jones in the case re ferenced above, and therefore no reason to grant him the relief that the Court of Criminal Appeals rightfully denied to Mr. Jones.

IV.

Mr. Wilson also claims that the trial court’s failure to gra nt him relief is
a violation of the constituti onal prohibitions agains t ex post facto laws, an d ag ainst cruel and unus ual pu nishment. Neither of these clai ms is supported by a coher ent argumentor by any factual allegations. In the context of sentencing, an ex post facto law is one which i mposes a greater punishment for an offense than the law allowed when the offense was committed. State v. Pearson , 858 S.W.2d 879 (Te nn. 1993). That is clearly not the c ase here.

Mr. Wilson is not the first person to argu e that a reduction in the severity of the punishment that

may be imposed for

a particular offense amounts to an implicit finding by the legislat ure that the previous penalties c onstituted cruel and unusual punishment. The Court of Criminal Appeals rej ected the same argument in State of- 6 -

Tennessee

ex rel. Jones v. McWherter, supra. The court noted that a primary purpose forenacting the 19 89 Sentencing A ct was to address pri son overcrowding. The express exclusio n of those sentenced before November 1, 1989, from the p r ovisions

of the Act is a strong indi cation that the Legislatur e did not consider the earlier law to be cr

uel and unusual punishment.
Finally, Mr. Wilson has filed a motion with thi s court to be all owed to supplementhis brief by bringi ng to our attention a recent unpublished opinion of this
cour t, William Jones v. Jeff Reynolds, Appeal N o. 01A01-9510-CH -00484 ( fi le d Nashville, July 2, 1997). Apparently th e Wi lliam Jones in that case

is the same individual as in the case of State ex rel Jones v. McWherte r , supra. However the case Mr. Wilson is so eager for us to se e deals with the correct calculation of sentence credits, and is not at all related to the parties or the issues before us.

V.

The order of the trial court is affirmed. Remand this cause to the Circuit Court of Davidson County for further proceedings consist ent with this opinion. Tax the costs on appeal to the appellant.

________________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION- 7 -

_______________________________ WILLIAM C. KOCH, JR., JUDGE