# FILED
July 2, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

WILLIAM JON

ES, )

) Plaintiff /Appella nt, )

) Davidson Chancery ) No. 92-2644-II VS. ) ) Appeal N o. ) 01A01-9510- CH-00484 JEFF REYNOL

DS, Commissioner, ) Tennesse e Depar

tment of C orrectio n, )

) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE C. ALLEN HIGH, CHANCELLOR

For the Plaintiff/

Appellant : For the Defendant/Appellee : William Jones, Pro Se Charles W . Burson Attorney General and Re

port er Patrici a C. Ku ssmann Counsel for

the State



## AFFIRMED IN PART; VACATED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 The Court of Criminal Appeals later a ffirmed the se convictions. Jones v. State,

HaywoodCrim. No. 2 (Tenn. Crim. App. April 26, 1979). A habeas c orpus proceeding concerning the validity of the kidna pping sentence is currently pending in the Criminal Court for Davidson County by order of the TennesseeSupreme Court. See Jones v. State, App. No. 01C01-9308-CR-00272, 1996 WL 56660 (Tenn. Feb. 12, 1996). -2- 

## O P I N I O N

This is the sec ond appeal concerni ng a dispute between a prisoner

and the Departm ent of Corre ction over the calcu lation of th e pr isoner’s sentence reduction credits. After the Dep artment s ummarily denied his se cond reque st for recalcu lationof his sentence cred its, the pr isoner fil ed a petiti o n f

or declaratory judgment in the Chan cery Cour t for Da vidson Count y assertin g that the D epartme nthad miscalculated his sentence credits. The trial court granted th e Department’s motion for

summary j udgment, and the pri soner aga in appeale d to this court. We hav e de termined that the sum mary judgm

ent dismissi ng the prisoner’s ex post facto claims should be affirmed but that the summary judgment dismissing th e remaining claims must again be vacate d.

I.

Willi amJones has a

n extensive

criminal record. In Marc h 1976, he wa s convicted in a Shelby

County Cri minal Cour

t of seven c ounts of grand

larceny a nd received seven conc urrent thr ee to five year sent

ences. H e was par

ol ed to a Haywood County deta

iner in Ap ril 1977 and apparently escaped while in Haywood County’s c ustody. H e was re captured and retur ned to state

custody but
was apparent

ly releas ed on parole

in July 1 977. Two months late r, Mr. Jones and
aconfederate kidnapp ed a woma n in Haywood County. D uring the next mo nth, Mr. Jones part

icipated i n a string of

armed robberies in Shelby C ounty, res ulting in the deat h of one per son.
On May 1, 1978, Mr. Jones was sentence d in Hayw ood County to serve ten to fifteen years for simplerobbery a

nd thirty ye ars for

kidnapping. 1 On November 30, 1978, h e recei v ed another five to te n year sen

tence in F ayette Co unty for simplerobbery. On Dec ember 18, 1978, he w as sentenc ed in Hayw ood County to two years for escape and two years for pet it larcen y. Finally, on Janua ry 22,2 This claim wa s resolved advers ely to Mr. Jones. State ex rel. Jones v. McWher ter, App. No. 01C01-9204-CR-00124, 1992 WL 335918 (Tenn. Crim. App. Nov. 18, 1992), perm. app. denied (Tenn. Mar. 1, 1993).

3 This claim was resolved adversely to Mr. Jones. Jon es v. Bra dley, App. No. 01A01- 9308-CH-00373, 1993 WL532586 (Tenn. Ct. App. Dec. 17, 1993), perm. app. denied (Tenn. April 4, 1994).

4 This claim was resolved

adversely to Mr. Jones. State v. J ones, App. No. 02C01-9406- CC-00134, 1995 WL 126625 (Tenn. Crim. App. Mar. 22, 1995).

5 The Court of

Criminal Appeals affirmed the trial court’s dismissal of the petition. Jones v. State, App. No 01C01-9308-CR-00272, 1995 WL 422497 (Tenn. Crim. App. July 14, 1995). However, the Supreme C ourt revers ed and remanded the case to the trial cour t to determine whether Mr. Jones had been convicted of kidnapping or kidnapping for ransom. Jones v. State, App. No. 01C01-9308-CR-00272, 1996 WL 56660 (Tenn. Feb. 12, 1996). -3- 1979, Mr. Jones was sentenced in Shelby County to concurrent 62-yearsentences for secon d degree murd er and six c ounts of ar med robber

y. Mr. Jones is now incarceratedat the Tu

rney Cent er servin g an indeterm

inate sent ence of 47 to 62 years.
Since 1992, Mr. Jones has filed fiv e separa te actions in three different trial courts challengi ng various a spects of his sente nce. T he procedu

ral confu sion caused by th e se different suits has been compounded by the imprecision of Mr. Jones’s numerous pro se papers and by the Department’s preference for dilatory pleadings rather than direct responses to Mr. Jones’s assertions. In order to avoid adding to the conf

usion, we find

it necessary to point out at this early stage what this case i s about an d, of equal i mportance , what it is n ot about

.
Th is case relates solely to the manner in which the Departmen t o f Correct ion has calculated Mr. Jones’s good conduct sentence credits. It does not involve his habeas co rpus pet ition asserting that the passage of the Tennessee Criminal Sente nc ing Reform Act of 1989 reduced his sentence. 2 It does not involve either his petition fo r declaratory judg m ent asserting that he had been
wron gfully excluded f

rom conside

ration for early re lease 3 or his motio n in the Circuit Court for Haywood County to correct his kidnapping sentence. 4 Finally, itd oes not i nvolve his ha beas corp us petition a

ttacking the

validity of

his kidnapping sentence. 56 The Departm ent offe red no ex planatio n for dif

ferent p robationary p arole dates in the two affidavits. The discrepancy may be due to the fa ct that one affidavit was prepared on October 16, 1992, while the other was prepare d on July 7, 19 94. The February 18, 2002 probationary parole date may reflect additional incentive credits that

Mr. Jones earned after the October 1992 affidavit was prepared.

7 This letter concerned Mr. Jones’s request for consideration for earl y parol e. It referenced

a June 24, 1992 e-mail message from Deborah L . Miller w ho, at the time, was the executi ve director of the

Board of Paroles. Ms. Miller sent Mr. Jones another e-mail message on August 21, 1992 contradicting her June 24, 1992 message in which shestated that “TDOC is responsible for the computation of dates. TDOC’s computer now showsthat your

earlies t (continued...) -4- In June 1992, Mr. Jones reque sted a dec laratory ruling fro m the Dep artment concernin g the computation of his sentence credits. He asserted that he was entitled to 5,086 days of credit fo r go od and honor t ime prior to July 1, 19 81, incentive time under

Tenn. C ode Ann. § 41-21-228 ( 1982) (Repeal ed 1985), a nd good conduct sen

tence cr edits un d er Tenn. Code Ann. § 41-21-229 ( 1982) (Repealed 1985). After t

he Depar tment did not

respond, Mr. Jones filed a petition for declaratory judgment in the Chancery Court for Davidson County. The trial courtsummarily dismissed the petition; however, this court v acated th e summary judgment and rema

nded th e case t o the Department with directions to consider Mr. Jones’s re quest for a declaratory order. Jones v. Rey nolds, App. No 01A01- 930 2-CH-000 55, 1993 WL 166 925 (Tenn. Ct . App. May 19, 1 993), perm. a pp . denied, (Tenn. Sept. 7, 1 993).

On remand, the Department’s lawyer denied Mr. Jones’s request for a declaratory ruling, st ating formulai cally that his petition

was “not well-ta ken and is, therefor

e, denie d.” On February 2 8, 1994, Mr. Jones file d another pe tition for declaratory ju dgment inthe trial court. The Department moved for summary judgment, relying on affidavits of two employees responsible for co m puting sentence credits an d parole el igibili ty dates. One employee stated that Mr. Jones had been awarded “a

total of 1, 872 days in In centive Credits and PPSC” and that his probationa

ry parole date was February 18, 2002. The other employee stated that Mr. Jones’s pr

obationary

parole da te was D ecember

30, 2002. 6

The difference between the two probationary parole dates was compounded ten days later

when Mr. Jones rec eived a letter fro m a di fferent De partment emp loye e on another matter st ating that his initial pa role hear ing would be

in 1996. 7 Mr. Jones countered the Department’s aff id avits with

his own af

fidavit7 (...continued)

parole eligibility date is in 2003. . . . I will not respond to any further inquiries on this issue.” -5- containi ng a year -by-year calculation of his sentence credits. According to Mr. Jones, he was e nti tled to 4,298 days of sentence credits, and his probationary paroleeligibil ity date s hould h ave been in 1992. On Novem ber 9, 1994 , the trial courtdenied the

Departm ent’s summ ary judgme nt motion wi thout prejud ice on the grounds that the Department had not addressed whether Mr. Jones was eligi ble to continue to earn Tenn. Code A nn. § 41-21- 228 incentiv e credits and ha d no t explained the earlier correspondence and e-mail message stating that Mr. Jones’s initial par ole heari ng would be i n 1996.

In Januar y 1995, the Departm ent renew ed its motio n for summ ary judgme nt and provided two new supporting affidavits. One affidavit addressed the earlier
cor responde nce about Mr. Jones’s 1996parole da te. The second af

fidavit contained new cal culations c on cer ning Mr. J ones’s sent ence cre dits and probationary parole date. Contrary to the earlier affidavits, the seco n d affidav it stated thatMr. Jone s’s probat ionary par

ole date was now D ecember

20, 2001 and that he had been awarde d “2,247 da ys PPSC, which inc ludes anyIncentive time earned and maintained prior to September 1, 1980.” Neither affidavit offered an explanatio n for the

differences in the

Department’s previous calculations of Mr. Jones’s sentence credits and probationary parole date.

In an e ffo rt to trav erse this f actual la byrinth, t he trial c ourt direc ted the parties to address the question of whether calculating Mr. Jones’s sentence credits pursuant to statutes pa ssed afte

r he was convicted violated the ex post facto cl ause in U.S. Const. art. I, § 1 0, cl. 1. Af ter receiving the parties’ responses, the trial courtagain gra

nted the D epartme nt’s motion for summa

ry judgment

. When the trial court deni ed his petition fo r rehear ing, Mr. Jones agai n appealed to this cour

t.

II.8 In 1982, the designation of Tenn. Code Ann. § 41-332 was changed to Tenn. Code Ann.

§ 41-21-212.

9 In 1982, the designation of Tenn. Code Ann. § 41-334 was changed to Tenn. Code Ann. § 41-21-214.

10 Act of April 17, 1980, ch. 805, 1980 Tenn. Pub. Acts 942, codified at Tenn. Code Ann. §§ 41-332 to -335 & 41 -359 to-363. These statutes were later designated a s Tenn. Code Ann. §§ 41-21-212 to -215 & 41-21-229 to - 233. They were repealed in 1985. See Act of Dec. 5, 1985, ch. 5, § 14, 1985 Tenn. Pub. Acts (1st Ext. Sess.) 22, 26, codified at Tenn. Code Ann. § 41-21-236(g) (1990). -6- Prisoners do not have an inherent r ight to sentence reduc tion credi ts. The se credits are cre atures of

st atute , and thus t

he right to r

eceive or accrue credits depends on t he sta tutes authorizing them. The Department has administered several differentsentence credit programs since Mr. Jones was fir st incarc erated. Thus, as our first order of business, we must iden tify the s entence cred it laws applicable

to Mr. Jon es before

we can b egin to determin e whether the Depa rtment has corre ctly calc ulated his s entence r eduction cr

edits.

A. G OOD C ONDUCT S ENTENCE C REDITS

When Mr. Jones was first incarcerated for his current convictions, prisoners
were entitled toreceive

credits f or good behavior , see Tenn. C ode Ann. § 41-332 (1975) (repe aled 1 985) 8 and addit ional cred its for ho nor time. See Tenn. C ode Ann. § 41-334 (1975) (repealed 1985). 9 Tenn. Code Ann. § 41-332 provided that prisoners could ea rn one m onth of good ti me credi t for the f irst year of incarce ration, two months of credit for the se cond year, three mon ths for the third year, and four mo nths for ev ery subse quent yea r of impriso nment. In addition to these good time c redits, T enn. Code Ann. § 41- 334 aut horized tw o months of honor ti me credit for each year of th e prisone r’s senten ce.

In 1980 the General As sem bly enacted new sentence credit statutes that
were intended to completely replace Tenn. C ode Ann. §§ 41 -332 an d 41-334 be gi nning on July 1, 198 1. 10 Tenn. Code Ann. § 41-359 (later designated as Tenn. Code Ann. § 41-21-229) establishe d a system o f “good c ondu ct sentence credits” that prisoners could earn by proper behavior, and Tenn. C ode Ann. § 41- 361 (later desi gnated as Tenn. Code Ann . § 41-21-231) provided a mechanism for11 Act of Dec. 5, 1985, ch. 5, § 12, 1985 Tenn. Pub. Acts (1st Ext. Sess.) 22, 24, codified at Tenn. Code Ann. § 41-21-236 (1990).

12 In 1982, the designation of Tenn. Code Ann. § 41-358 was changed to Tenn. Code Ann. § 41-21-228. -7- convertingTenn. Code Ann. §§ 41-332 and 41-334 credits earned prior to July 1, 1981 to “good conduct s entence cred its.” The General Assembly envisioned that the new good conduct sentence credit program would apply across-the-board to all prisoners and thus did no t provide a waiver or opt-in

system to prisoners who committed

crimes pr

ior to July 1, 1981.

The General Assembly enacted another sentence reduction progr am in 1985 thatestablished a“prisoner sentence reduction credit” program . 11 Prisoner s who
co mmitted felonies prior to December 11, 1985 could not participat e in thi s programunless they signed a written w aiver in a ccordanc e with T enn. Code Ann. § 41-21-236(c)(3), -2 36(g) (1990). Prisoners electing not to sign a waiver continueto accrue sentence redu ction cre dits in acc ordance w ith the appl icable pre-exist ing sent ence credit statutes
. See Tenn. Code Ann . § 41-21-2 36(g).

B. I NCENTIVE S ENTENCE C REDITS

In addition to being able to e arn the se ntence cr edits author

ized by T e nn. Code Ann. §§ 41-332 and 41-334, prisoners were are also able to earn educational and job perfor mance credit s wh e n Mr. Jone s was inca rcerate d for his pr

esent offenses. See Tenn. C ode Ann. § 41-358 (1975) (repealed 1985). 12 This stat ute permitted prisoners to earn incentive credits for participating in educational programs approved by

the Depa rtment or for perf orming “above ave

rage” in j ob placeme nts. These credits accrued at the rate of one dayof credi tfor eac h six days of participa tion during th e first ten years of a prisoner’s term and thereafter increased to two days of credit for every six days of participation. Prisoners could not earn mor

e than thir

ty days of

incent ive credi t during the first yea r of their sentence; they could e arn no mor e than sixty

d ays per yearduring the s econd throughtenth year s of their sentence; and they co uld earn no m ore than ni nety days per year thereafter.13 Act of April 17, 1980, ch. 805, § 2, 1980 Tenn. Pub . Acts 942, 945 . In 1982, the designation of Tenn. Code Ann. § 41-360 was changed to Tenn. Code Ann. § 41-21- 230.

14 Tenn. Code Ann. § 41-360(b) states that the prisoner perform ance se ntence c redits “shall affec t parole

eligibility

and sente nce exp iration da

tes in the s ame manner as inc entive tim e creditsaffected such da

tes priorto September 1, 1980.” The Attorney General and Repor ter issued two opinion s conclud ing that Te

nn. Co de Ann. § 41-360 r eplace d 41-358 a

nd that it appliedto prisoners whose offenses were committed prior to the ef fective date of

Tenn. C ode Ann. § 41-360. Tenn. Att’y Gen. Op. 90-60 (May 15, 1990); Tenn. Att’y Gen. Op. 81-13 (Jan. 9, 1981).

15 Act of Dec. 5, 1985, ch. 5, § 14, 1985 Tenn. Pub. Acts (1st Ext. Sess.) 22, 26. -8- In 1980, the General Assembly enacted anotherincentive

program o ffering “prisonerperformance sentence credits” (co mmonly refe rred to as “PPS C”). See Tenn. Code Ann. § 41-360 (Supp. 1981) (repealed 1985). 13 This program permitted prisoners to earn between one and fifteen days of in centive credit per month depending on the progra m to which they were a ssigned. W hile this sta

tute did not expres sly repea

l Tenn. Code Ann. § 41-358, its language permits no other result. 14

The General Assembly repealed the PPSC program i n 1985 in the same legislatio n that established the prisoner sentence reduct ion credit program in Ten n. Cod e Ann. § 41- 21-236. 15 The 1985 st atute per mits prisone

rs who c ommitte d their offenses prior to D ecember 11, 1985 to opt into the

new sentence reduc tion credit program. Prisoners opting into the new program accrue prisoner sentence reduction credits i n accorda

nce with T enn. Code

Ann. § 41-21-236(a). Prisoners electingnot to opt intothe new pr ogram cont

inue to e arn prisoner performance sentence credits un der Tenn

. Code Ann. § 41-21 -230. See Tenn. C ode Ann. § 41- 21-236(g).

C.

Mr. Jones committed his offenses prior to December 1 1, 1 985. Accordi ngly, he is not entitled to ea rn credit s under Te nn. Code A nn. § 41-21- 236(a) unless he

signed a written waiv er in accorda nce with Tenn . Code Ann. § 41-21-236(c)(3), -236(g). Since there is no evidence in this recordthat Mr. Jones16 The record contains a document dated November 20, 1986, indicating that Mr. Jones’s counselo r informed him

that he was “not elig ible to sign a waive r at this tim

e.” We h ave held i n other circumstances that prisoners are entitled to be f ully informed of their ri ght to selec t betweensentence credit programs. Crowder v. Tennesse e Dep’t o f Co rrection, App. No. 01A01- 9203-CH-00105, 1992 WL 207761 (Tenn. Ct. App. Aug. 28, 1992), perm. app. denied (Tenn. Dec. 28, 1992) . Mr. Jone s has n ot a sserted in this cas e that he

was not fu

lly inform

ed of his options, and, in fa

ct, asse rts in his br

ief that h e is entitl ed to Tenn. Code Ann. § 41-21-229 credits. Accordingly, the waiver issue is not before us. -9- has signed this waiver, 16 he is entitled to earn goo d conduct credits in accordance withTenn. Code Ann. § 41-21-229 and to accrue prisoner performance sentence credits in accordance with Tenn. Code A nn. § 41- 21-230. With these legal conclusions in mind, w e will now proceed t

o examine the Depa

rtment’s motion for summa

ry judgment

.
III.

Mr. Jones’s papers, construed in their most favorable light, appear toclaim that the D epartme nt has incor rectly ca lculated his sentenc e reducti on credits f or two reasons: first because it has unconstitutionally applied later-enacted sentence credit statutes to him and

second bec ause its ca

lculations contain mis takes. T he Department’s affidavi ts purport t o provideundisputed f

acts demon strating that it is entitled to a judgme nt as a mat

ter of la w on both cl aims.

A.

Parties seeking a summar y judgment ha

ve the burden of

demonstra

ting the absence of material factual disputes and their entitlement to a judgment as a matter of law. Bain v. Wells, 936 S. W.2d 618, 622 (Tenn . 1997); Byrd v. Hall, 847 S.W.2 d 208, 215 (T enn. 1993); Gibbons v. Schwartz -Nobel, 928 S.W. 2d 922, 926 (Tenn. Ct. App. 1996). T hese requ irements are stri ngent. Baker v. Lederle L abs, 696 S.W. 2d 890, 893 (T enn. Ct. App. 1985) . Acco rdingly, t he courts w ill grant
a summa ry judgment only if the facts and the conclusions to be drawn from th e facts demonstra

te that the

moving p arty is ent

i tled to a jud gment as a

matter of law. Brookins v. The Round Ta ble, Inc., 624 S.W.2 d 547, 550 (Tenn. 1981); Mansfield

v. Colonia l Freight S ys., 862 S.W. 2d 527, 530 ( Tenn. Ct. App. 1993). They will dec line to gra

nt a summary j udgment

if any unce

rtainty or doubt exists withregard to the fact s or the con clus ions to be d rawn from the fa cts. Byrd v.-10-

Hall, 847 S.W. 2d at 211; Poore v. Magn avox, Inc., 666 S.W.2 d 48, 49 (T enn. 1984).

The courts customarily treat the nonmovi ng party’s papers mor e in dulgentl y than they do the

moving part

y’s paper s. The e vidence sup porting and o pposing the summary judgment motion will be considered in the light most favorab le t o the nonmovi ng party. Speaker v. Ca tes Co., 879 S.W.2d 811, 813 (Tenn. 1994). In addition, the nonmoving party is entitled to all favorable inferences that can be reasonably drawn from th e evidence. Byrd v. Hal l , 847 S.W. 2d at 210-11; Cowden v. Sovran Bank

/Central Sou th, 816 S.W.2d 74 1, 744 (Tenn . 1991).

B. T HE E X P OST F ACTO C LAIMS

Like the trial cour

t, we f ind Mr. Jo nes’s ex pos t facto c laims diff icult to understand

. They can, at most, re late to only

three circumstanc es: the imple mentation

of the PP SC progra

m under T enn. Code

Ann. § 41- 21-230 o n September

1, 1980, the establishment of the good co nduct s entence program under Tenn. C ode Ann. § 41-21-229 on July 1, 1981, and th e transiti on to the prisoner sentence reduction credit pr ogram on Decemb er 11, 1985. The record c ontains no evidence that the

Departm ent has interpreted or applied these statutes in a way that has affected Mr. Jones in an unconstitutional manner.

The ex po st f

acto clau ses in both U .S. Con st. art. I, § 10, cl. 1 and Tenn. Const. art. I, § 11 prohibit the enactme nt of laws that retr oactively disadvantage prisoners by increas ing thei r punish ment. Lynce v. Mathis, ___U.S. ___, ___, 1 17 S. Ct. 891, 896 (1997); CaliforniaDep’t of Correction s v. Mora les, 514 U.S. 499,

___, 115 S. Ct. 1597, 1601 ( 199 5) ; State v. R icci, 914 S.W. 2d 475, 480 ( Tenn. 1996). They pre vent

legislatur

es from in creasingcriminal punishments beyond those prescribed when the crime was committed. Since the sentence r edu ction credit statutes i n existence

when Mr. Jones comm

itted his crimes were in

herently partof his sentence, G illiam v. State, 174 Tenn. 388, 391, 1 26 S.W. 2d 305, 306 (1939), any later

enacted s entence credit s tat utes that r etroacti vely reduc e the amount of sentence credits Mr. Jones may earn viola te the ex po st facto clause of17 Prisoners could earn up to 150 days per year under Tenn. Cod e Ann. §§ 41-332 and

41-334; while Tenn. Code Ann. § 41-21-229 permits inmates to earn 120 days of

credit in their first year, 264 days of credit du ring the second through tenth years, and 360 days per yea r thereafter.

18 Tenn. Code Ann. § 41-21-230 permits prisoners to earn up to fifteen days of PPSC creditsper month. The incentive credits under Tenn. Code Ann. § 41-21-228 accrued at a slowe r rate and were capped at annual maximums lower than the annual maximumpossible under Tenn. Code Ann. § 41-21-230. -11- the state and f

ederal c onstitutions i f they impo se greate r punishment after t

he commission

of the offen se. See Weaver v. Graham, 450 U.S. 24, 36, 101 S. Ct. 960, 968 (1981).

Mr. Jones’s cl aims in this case do n ot implicate the 1985 statutes establishin g the prisoner sentence reduction credit program because he has never opted into this pro gram. T herefor e, his ex p ost factoclaims ca n only relate t

o the transition to the good

conduct sen

tence pro gram under

Tenn. C ode Ann. § 41-21- 229 in 1981 and to the

transition

to the PPSC p rogram und er Tenn. Code An n. § 41-21-230 in 1980.

We can find no ex post facto problem with including Mr. Jones in the good conduct sentence

credit pr ogram unde

r Tenn. Code Ann. § 41-21-229. Based on
our understand

ing of the op eration

of Tenn. Code Ann. §§ 41-332 and 41- 334 and Tenn. Code Ann. § 41-21-229, Mr. Jones earns mor e sentenc e credits under Te nn. Code Ann. § 41-21 -229 than he did un der the pri or law. 17 Since T enn. Code Ann. § 41-21-229 decreases ra ther than incre ases his puni shment, i t is not surpr ising thatMr. Jone s stronglyinsists that he is entitled tosentence credits un der Tenn

. Code Ann. § 41- 21-229 rath er than un der the sta tutes exist

ing at the ti me of his offense.

The same reasoning applies to Mr. Jones’s participation in the PPSC program. The rec ord conta ins no evi dence that

the change

from the incentive program un der Tenn . CodeAnn. § 41-21-228 to the PPSC program under Tenn. Code Ann. § 41-21-230 had the effect of decreasing Mr. Jones’s ability to a ccrue incentive credits. On its face , Tenn. Code Ann. § 41-21-230 p ermits pr isoners to
ea rn more incentive cre dits than they could prev iously ear n. 18 Accord ingly ,19 Whether Mr. Jonesis accr

uing sente

nce credits under

Tenn. Cod

e Ann. § 41 -21-203 i s notknown. An affidavit filed i n s upport of the Department’s second motion for summary judgmentstates that "Mr. Jones is not entitled to earn inmate inc entive c redits at this time." Mr. Jones has not taken issue with this assertion. -12- placing Mr. Jone s under Tenn. Code A nn. § 41-21- 230 does not amount to an ex post factoviolation. 19

Mr. Jones’s ability to earn sentence reduction credits is governed by Tenn. Code Ann. §§ 41 -21-229 and 41-21-230. In light of

the eviden ce in this r

ecord, appl ying these stat

utes to Mr. Jones has not had the ef

fect of i ncreasin g hi s pu nishmen tbeyond that i n existence at the time he comm

itted his of

fenses. Accordi ngly, the trial cour t properly granted th e summar

y judgment di smissing Mr. Jones ’s ex post f

acto clai ms.
C. T HE D EPARTMENT ’ S C ALCULATION E RRORS

The only rema

in ing is sue concer

ns Mr. Jone s’s claim s that the Department’s calculat

ion of his se ntence re ductioncredits co ntains err ors. Four years ago, we

remande d t his case f

or the express purpose of obtaining a record thatwould facil itate prop er review of Mr. Jo nes’s peti tion. Unfortunately, neither the Departm

ent’s deni al of Mr. Jones’s petition for a declara tory ruling nor its subsequent

affidavi ts contain t

he sought-a

fter inf ormation. Thus, the trial court and this court h ave still no t been provi ded “the benefit of t he recor d made in th e agency.” Jones v. Reynolds , supra, 1993 WL 166 925, at *1

.
There exist at le ast five op portunities for err or in thecalculat

ion of sentence credits for prison ers like Mr. Jones. The De partment could be usin g the w rong statutes to calcula

te his sentence cred

its, or the Departm ent could have overlooked credits to whi ch he is ent i tled. T he Depar tment could

also have e

rred in it s conversion

calculati ons und er Tenn. Code An n. § 41-21-231 or in its calc ulation of Mr. Jones’s credits under the statutes that repla ced the se ntence cr

edit statutes in effect when Mr. Jones comm itted his of

fenses. Finally, the Depa rtment co uld have made

improper or errone ous deductio ns for disc iplinary or other re asons.-13- As we under stand the r

ecord, Mr. Jone s is not asse rting that t

he Depar tment is applying the

wrong sentence cre dit statu tes to him

. In fact, both Mr. J ones and the Depart ment

appear toagree tha

t his senten ce credi ts should be c alculate d in accorda nce with Tenn. Code Ann. § 41-21-229. Inaddition, Mr. Jones does not appear to be asser

ting that the

Department overlooked any of his c redits, t hat the Department’s conversion calculations were incorrect, or that the Department has
erroneous ly taken credits away from him. Thus, the only disputed issue appears to involve t h e manner

in which th e Depar

tment cal culated hi s sentence credits under Te nn. Code A

nn. § 41-21- 229.

Mr. Jones provided the tria l court wi th h is own ye ar-by-ye ar calc ulations of his sentenc e credits

. In response, the Depa rtment fi led affi davits conta ining the results of its calcu la tions without providing th e calcula tions themse lves. T

he Department’s most recent affida vit , for example, states that Mr. Jones received “2, 247 days PPSC, which includes any Incentive time earned and maintained pri o r to September 1 , 1980.” This res ponse is inadequate be cause it do es not enable the courts to review in any mea ningful wa

y how the Departm ent arri ved at the 2 ,247 day figure. In order to review issues of this sort, the Departme nt shou ld, at a minimum, provide the courts with year-by-year calcul ations show ing (1) the statutes under whi ch the pris on er is earn ing credit s, (2) th e number of good
con duct se ntence cr

edits ear ned pursuant to each statute, ( 3) the numbe r of incentive credits earned pursuant to each statute, and (4) a ny credits de ducted and the reason s for the ded uction.

The Departm

ent has made much of the fact tha t Mr. Jone s’s senten ces will be reduced by more than thirty -fiveyears based on its calculation of his sentence credits. This arg ument is not responsiv e to t he issue. The mer e fact th at the Departm ent has reduced Mr. Jones’s sentence by a stated number of years does not resolve whether Mr . Jones ha s receive d all the credits due him underthe law properly applicable to him. The cour ts’ interest is not in how much Mr. Jones’s sentence is reduce d but rathe r in seeingto it that th e law is p roperly a pplied.

Both this court and the trial court are, in real i ty, in as much need of an adequ ate record today as we were f our years ago. The

re are s imply too man y-14-

variables in the calculation of Mr. Jones’s sentence credits f or the courts to accept the resul ts of the De

partment’ s calcula

tions on their

face. Our conc ern is underscored by the factthat the D epartme nt’s calc ulations of Mr. Jones’s sentence credits, and in fac t Mr. Jo nes ’s own ca lculations, have produc ed differ ent and unexplained results. Acco rdingly , w e va cate the portions of the summary judgment not pertai ning to Mr. Jones’s ex post factoclaims without pr ejudice to the parties submitting proper evidence and rec ords demonstrating the proper calculation and application of all applicable credits to Mr. Jones’s sentence.

IV.

W e affirm the summar

y judgment di smissing Mr . Jones’s ex post fac to claims and vacate t

he remainin g portions of

the summa

ry judgment . We remand the case to the

trial cour t for fur ther proc eedings consistent withthis opinion a nd tax the cos ts of this a

ppeal to the

Departm ent of Cor

rection.

_ _________________

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_ _ WILLIAM C. KOCH, JR., JUDGE CONCUR:

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_______________ HENRY F. TODD, P.J., M.S.

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_______________ SAMUEL L. LEWIS, JUDGE