# FILED
February 18, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF A PPEALS OF TENN ESSEE

AT NASHVILLE

CHARLES ALLEN, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9804-CH-00199 VS. ) ) Davidson Chancery ) No. 97-3553-I DONAL CAMPBELL, ) COMMISSIONER, TENNESSEE ) DEPARTMENT OF CORRECTION, ) ) Respondent/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

CHARLES ALLEN, #99940 7575 Cockrill Bend Industr ial Road Nashville, Tennessee 37290- 1057 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General & Repor ter PATRICIA C. KUSSMANN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

The Department

of Correction extended the Release Eligibility Date of
a prisoner by an addition al 30% after he was found guilty of assaulting a correcti onal officer. The prisoner

filed a petition for a declarator y judgment that the exten sion of his Release Eligibi lity Date was a violation of the ex pos t facto prohibition. The trial court dismissed the petiti on. We affirm.

I.

Charles Allen was convicted of murder in the se cond degree, and sentenced to life in prison. The date of his crime was January 10, 1982. The law at that time made those receivin g li fe sentences eligible for parole after 30 years. Mr. Allen’s original R

elease Eligibility

Date (RED) was c

alculated as January 13, 20 12.

On October 31, 1989, Mr. All en assaulted anot her inmate and a correctional officer. He was f ound gu ilt y of two cou nts of ag gravated a ssault by a Davidson County court, and received two sent ences of two years each, to be served consecutively to his life sentence. In accordance with Tenness ee Depa rtment of Correction PolicyNo. 502.02 in regard to as sault on an officer, his RED was e xtended by30%. The policy in ques tion considers a l ife sentence t o be 99 years for the purpose of an RED extension. The result was a new eligi bility date of September 17, 2037.

Mr. Allen requested that the D epartment o f Co rrection issue a declaratory order

that the extension was invalid, because it v iolated the ex post facto clause of the Constitution. The Department declined to issue the declaratory order,- 3 -

so on October 29, 1997, he filed a petition for declaratory judgmentin the Chancery Court of Davidson C ounty.

Th e Department filed a motion to dismi ss the petition under Tenn. R

. Civ. P. 12.02(6) for failure to file a claim upon which relief may be granted. Because matters outside the pleadings w ere presented, the court treat ed the motion as one for summary judgment. The court granted the motion, finding that as a matter of law, no ex post facto violation had occurred. This appeal follow ed.

II.
On appeal, Mr. Allen contends that he is entitled to the benefits of the law in effect at the time he committed his c rime, by virt ue of both the ex post facto clauses of the U.S. and TennesseeConstitutions, and Tenn. Code Ann. § 40-35-117 of the Sent

encing Reform A

ct of 1 989, which clarifies the application of the Reform Acts of 1982 and 1989 to felonies committed before and after their enactment. That statute reads: (a) All persons who co mmit crimes on or after November

1, 1989, shall be tried a nd sentenced under the provisions of this chapter. (b) Unless prohibited by the United States or Te nnessee Constitution, any pers on senten ced on or afte r November

1, 1989, for an offense committed between July 1, 1982 and November 1, 1989, shall be sentenced under the provisions of this chapter. (c) For all persons who com m itted crimes prior to July1, 1982, prior law shall apply and remain in full force and effe ct in every respect, including, but not limit ed to, sentencing, parole and probat ion.

W e agree with Mr . Allen th at we must look to th e law i n effect o n January 10, 1982 to determine the extent of his right to parole consideration. Howev er an examination of

the relevant statutes

reveals that the Depart ment of Correction was entitled to modify his Rele ase Eligibility

Date as it did.- 4 - Tenn. Code Ann. § 39-1-702 [enacted 1 979, subsequently repeale d ] list s second degree murder among the offenses cl assified as Class X feloni es. Tenn

. Code Ann. § 4 0- 28-301 [enacted 1979, subsequently repealed] governs release eligibility of Class X felons. Section (h)(1) of that statute reads:

The release classification eligibility date provided for in this section shall be the ea rliest date a person convicted of a Class X felony shal l be elig ible for release cl assification status, such date being condi tioned on th e prisoner’s good behavior while in prison. For a viol ation of any of the rules of the departmen t of corr ection or the ins titu tion in which the person is incarcerated, the commissioner of correction or his desig nees, may defer the release classification eligi bility date so as to increase the total am ount of time a person must serve before becomi ng eligible for release classification status. This increase may, in the discretion of the commissioner, be in any amount of time not to exceed the full sentence originally imposed by the co urt and shall be imposed pursuant to regulations promulgate d by the commissioner of corrections. [Acts 1979, c h. 318 § 20]

As can be seen b y the above quoted provision, Cl ass X felons did not have an absolute entitlement to any particul ar RED, but could have that date extended for misbehavior.

Mr. Allen contends that in its memorandum in support of the motion to dismiss, the appellee erroneously relied upon a statute that was part of the Criminal Sentencing Reform A ct of 198 2, as the law contro lling his eligi bility for release. Section (h) of Tenn. Code Ann. §40-35-5 01, the statute in question, t racks the language of Tenn. Code Ann. § 40-35-30 1(h)(1) ver y closely, but is applicable by i ts terms to all felons, not only to those convicted of Class X felonies. Mr. Allen is correct in stating that Tenn. Code Ann. § 40- 35-501 does not apply to him bec ause it was enacted after his crime was committed. However the ch ancellor cited the cor rect statut e in d etermining that as a Clas s X felon, Mr. Allen’s

Release Eligibility Date could be extended beyond thi rty years for vi olations of departmental rules.

III.- 5 - The j udgment of the trial court is affirmed. Remand this cause to th e ChanceryCourt of Davidson County for further proceedings consi stent with thi s opinion. Tax the costs on appeal to the appellant.

_____________

___ _____________

_ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE