### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs M

arch 14, 2001 DAVID BRITT v. DONAL CAMPBELL, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 00-374-III Ellen H. Lyle, Chancellor

No. M2000-01423-COA-R3-CV - Filed June 5, 2001

A prison inmate escaped from custody and was recaptured. Af ter a disciplinary hea

rin g, the Department

of Correction exte

nded his Release E

ligibility Date so that

he would have to serve an additional 20% of his sentencebefore being considered for parole. The prisoner filed a Petition for Declaratory

Judgment, contending that the Department’s action violated statutory and constitutional law. The trial co

urt dismissed the Pet

ition. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R
. and W ILLI

AM B. C AIN , JJ., joined. David Britt, Nashville, Tennessee, Pro Se.
Paul G. Summers, Attor ney Gene ral and Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Assistant Attorney General, for

the appellees, Donal Campbell, Ricky Bell, Tommy Va nce and Tim Terr y. OPINION
I.
In Aprilof 1990, David Britt pleaded guilty to first-degree murde r, and was sentenced to life imprisonmentas a Range I Standard Offender. His sentence accordingly

carried a Relea

se Eligibility Date ( RED) which entitle d him to be consider

ed for parole af

ter serving abo

ut thirty y ears of hi s sentence. On January

30, 1999, Mr. Britt was housed at the South Central Correctional Center, and was classifieda s being on m inimum security status. During the 4:00 p.m. count, correctional officers1 Since the South Cent ral Correctiona

l Center is operated by Correct ions Corpora

tion of America (CCA), the recommendations of its Discipl inary Boar

d must be re

viewed and a

pproved by th e Commissioner’s designee before disciplinarysanctions ma y validly be imp osed. See Ma ndela v. Camp bell , 978 S.W.2d 531 (Tenn. 1998). It is uncl ear from this record whe

ther such an

approv al was obtain ed. However, the appellant did not raise this questi on at either the trial level or on a ppeal, so w e will assume tha t the Comm issioner’s desig nee gave the required a pprova l. -2- discovered

that he was not present in his assigned cell. A subsequent count confirmed that he was absent from the facility. Shortly thereafter , David Britt was arrested in Decatur Cou nty, Tennessee, outside the confines of the South Central Correctional Center.
On February 7, 1999, Mr. Britt was brought before a three-member panel of the Disciplinary Board for a hearing. The panel included Lieutenant Thomas Vance. Mr. B ritt pled not guilty, but chose not to testify

because he had been informe

d that he could be c

harged with esc

ape, a Class E felo ny, see Te nn. Code. Ann. § 39-16-605, and he did not wish to incriminate himself by any testimony he gave at the disciplinary he aring.
The Disciplinary Board found Mr. Britt guilty of escape, and

imposed a sentence of tw enty days punitive segregation, a $5.00 fine, a recommendation for further prosecut ion in the criminal courts, a recommendation that he be placed in administrative segregation, and a recommendation of a 20% increase

of the amount of

time he would have to serve before becoming eligible for parole. 1
Mr. Britt was transferred to the River bend Maximum Security Institution. On April 16, 1999, he received his quar

terly TOMI

S Offender Sentence Letter, and noticed that his RED, which had been November 24, 2016 b ef ore his escape, had been moved up to August 27, 2036. He filed a grievance on April 22, asking that the additional 20 years be removed from his RED date.
His grievance was heard

by a five member Board on May 18, 1999. The Board advised Mr. Britt “to send a request to the Case manager to try and solve the prob lem.” Mr. Britt a

ppealed to Warden Ricky Bell,

who concurred w

it h the Gri evance Board

, and rejected th

e appeal. Mr. Br

itt claims that he the n appe aled to the Commissioner of Correction, but there is no evidence in the record to show that he had actually done so.
On February 7, 2000, Mr. Britt filed a Petition fo r Declarat ory Judgment in the Chancery Courtof Davidson County, naming Correction Commissioner Don al C ampbell, Warden B ell, Lieutenant

Vance, and Records Officer Tim Terry as respondents. Heclaimed that Department of Correction policy #502.02 requires a finding of actual or threatened violence in conjunction with an escape attempt before the Department can legally increase his RED date, and noted that there were no allegations of

violence in the re

cord of the discip

linary proc

eedings agai

nst him.
The r espondents filed a

Motion to Dismiss or fo r Summary Judg

ment, to which Mr. B

ritt responded. The trial court filed an Order and Memorandum on May 19, 2000 granting the motion. The c ourt dismissed the individual defendants, because the only proper respondent wa s th e Department of Correction. See Tenn. Code. Ann. § 4-5-225.-3-

The court also gran t ed summary j udgment to the De partment of Corre

ction on any

claims against it, holding that Policy #502.02 “does not require that actual or threatened violence be shown when the inmate is in minimum restricted or higher custody in ord er to impose the additional punishmentof ex ten sio n of rel ease eli gibi lit y d at e.” The court additionally found that Mr. Britt’s petition was deficient because it was not accompanied by an af fidavit stat ing the dates of his grievance, including the date of the final decision of the grievance committee, and that it was unt ime ly, because it was not filed within 31 days of that final decision. See Tenn. Code. Ann. § 41- 21-806. This appeal followed.
II. P OLICY #502.02
Mr. Britt’s appella

te brief is an ang

ry documen

t, filled with acc

usations of statu tory and constitutional violations allegedly committed against him by numerous employees and officials of the Department of Correcti on, includ ing some w ho were not even named as respond

ents in his petition. His arguments a re full of refer

ences to the Fifth, Eight

h and Fourteenth

Amendments, to the Law of the Land provision of the Tennessee Constitution, and to the perjury statutes, but there is very little coherent discussion as to how any of these a pply to his case.
Mr. Britt’s supplemental brief focuses on the contractua l aspectsof his plea agreement. He argues that the RED was part of his agreed-upo n sentence, and thus that any alteration to it is a violation of his constitutional rights. However, we have had many occasions to examine the constitutionality

of the Department’s authority to extend REDs for violations

of disciplinary

rules, and we have alway

s held that such authorit

y is constitutional so long as the RED does not have the effect of extending the sentence beyond its expiration date. See Smith v. Campbell , 995 S.W.2d 116 (Tenn. Ct. App. 199

9); Rowland v. Bradley , 899 S.W.2d 614 (Tenn. Ct. App. 1994).
If we put aside the question of the timeliness of the appellant’s Petition, we can make ou t only two argu abl y valid issue s from his briefs: the proper interpretation of the Disciplinary Punishment Guidelines found i n the Departme

nt’s Poli cy #502.02, and the effect of Mr. Britt’s exercise of his Fifth Amendment right on the Disciplinary Board’s final dete rmination.
We should note at the ou

tset that despite

Mr. Britt’s protests to the contrary, it has long been established that there is no constitutional right to parole, prior to the expiration of a sentence imposed as the result of a valid conviction. Greenholtz v. Inmates of Nebraska Penal & CorrectionalComplex , 442 U.S. 1 (1979); Kaylor v. Bradley , 912 S.W.2d 728 (Tenn. Ct. App. 19 95); Rowland v. Bradley , 899 S.W.2d 614 (Tenn. Ct. App. 1994). I n Tennessee, a Re

le as e Eligibility

Date is the earliest date an inmate convicted of a felony is eligible for parole. Tenn. Code. Ann. § 40-35-501. That

statute sets outthe standards for determining REDs for different offenses and classes of offenders, and it also gives the Department of Correction the authority to extend an inmate’s RED as pun

ishment for discipl

inary infr actions. It re

ads in pertinent pa

rt: (k) The release eli

gibility da te provided for in thi

s section is the ea

rliest date an inmate convicted of a felony is eligible for parole; such date is conditioned on the2 Since the disciplinary process took place at a CCA-operated prison, the most ap propriate policy to send would

have been t

he ident icall y worded #9502.02 -4- inmate's good beh avi or while in prison. For a violation of any of the rules of the department of co

rrection or instit

ution in which the inm

ate is incarcer

ated or while on any relea

se program othe

r than parole, the

commissioner or the

commissi oner's designees may defer

the release elig

ibility date s

o as to increase the total amount of time an inmate must serv e before becom

ing eligible

for parole. This i

ncrease may, in the discretion of the commissioner, be in any amount of time not to exceed the full sentence o riginally

imposed by the

court, and shall be

imposed pursuant to re gul ations promulgated by the commissioner which give notice of the leng th of discretionary

increases that may

be imposed for a violation of each of the rules of the department or institution.

. . . . (m) Extensions in the release eligibility date provided for herein and in other section s of this chapter shall onl y be imposed f

ollowing a hear

ing conducted in accordance with due process of law.
The Department of Correction has furnished us with a certified copy of # 502.02 of its Administrative Polic

ies and Procedur

es, 2 which reads in pe

rtinent part: DISCIPLINARY P

UNISHMENT GUIDELIN ES

. . . . VI. PROCEDURES :

. . . D. In all cases i

n whic h an inmate is found guilty of the offense of escape from minimum restricted or higher custody or from any custody level with actual or threatened

violence, in addition to any other punishment imposed, the offender’s parole or release eligibility date shall be extended by ad ding ther eto an additional twenty percent (20%) of the offender’s original maximum sentence, if sentenced as a Class X felon, or under the Judge Sentencing Act or the Sentencing Reform Act of 1989, or by extending the

inmate’s release eligibility date to the sentence expiration date, whichever is less . . . .

. . . G. For

purposes of (D), (E), and (F) abo ve, a li fe s ent ence sha ll b e con sid ered nin etynine (99) ye

ars.-5-

Mr. Britt co ntends tha t the langua ge of #505.02(VI )(D) should

be interpreted to mean that an inmate’s release eligibility date should be extended only whe n escape has been accomplished through the use of actual or threatened violence. The State argues to the contrary that it means that escape from minimum, medium, or maximum custody carries that penalty whether or not violence is involved.
In order to resolve th is questi on, we will examine t he language of the policy closely and

apply the assumptions, fam iliar from the rules of statutory construction, that the words of the policy are to be r ead in the ir natural and ordinary sense, that every word in the policy was put there for a purpose, and that to correctly construe it, the court must give every word and phrase i n the policy somemeaning. See Voss v. Shelter Mutual Insurance Company , 958 S.W.2d 342 (Tenn. Ct. App. 1997); United Canners, Inc. v. King , 696 S.W.2d 525, 527 (Tenn.1985).
When we examine the phr ase, “[i]n all

cases in which an

inmate is found guilty

of the offense of escape from minimum restricted or higher custody or from any custody level with actual or threatened

violence . . . .” It strikes us that under the interpretation proposed by Mr. Britt, the words “from minimum restricted or higher custody” would have absolutely no meaning whatsoever.
In order to giv e meaning to th ese words, we mus t assume that the De

partment intende

d to establish two alternative s

ituations that would

allow it to

punish escapes by extending a prisoner’s RED: when he has escaped from any custody level with actual or threatened violence, or when he has escaped fro m mi nim um r est ric ted or h ighe r cus tod y wit h or wit hou t vi ole nce. Pre sum abl y, esca pe fr om l ess er de gree s of cus tod y, su ch as wor k-r ele ase, wou ld b rin g a di ffer ent pen alt y. This interpretation no

t only gives

meaning to

every wor

d in the policy

, but it also

appears to advancethe Department’s goals of discouraging escape from secur e institutions. Since most i nmates in work-release or other low custody correctional situations are close to the endof

their sentences , a 20% extension in their REDs would be virtually meaningless, and othe r penalties would be preferable. We therefore believe that the respondent’s interpretation of the policy is correct.
III. T HE F IFTH A MENDMENT As we stated above,

Mr. Britt decline

d to testify a

t his disciplinary

hearing, citing

his Fifth Amendment

right against s

elf-incrimin

ation, and the possibility that he would ultimately have to face a criminal trial for escape. He contends that the Disciplinary Boar d should have postponed the hearing until after the trial, so he would not haveto invoke the privilege, and would be able to mount an effective defense.
It should be obvious, ho

wever, that a

prompt resolution of disciplinary charges is necessary if order is to be ma

intained in corre

ctive institutions,

and that making such a resolution of charges wait until the completion of far mor e lengthy judicial proceedings would frustrate that goal. The United States Supreme Court has stated that whe n dealing with dis

ciplinary ma

tters in prisons, normal due pro cess righ ts a re ci rcum scr ibe d by t he n eces sar y “ mutual a ccommodations between3 The Baxtercourt also said that if inmates are compelled to furnish incri min ating evidence at a disciplinary hearing, they must be offered whatever im munity is required to supplant the privilege. 425 U.S. at 316. That is not the situat ion before us. M r. Britt was entitled to testify, but he chose not to, and the Disciplinary Board chose not to compel his testimony, pr esumably b ecause they d idn’t need it to d etermine his gu ilt. -6- institutional needs and objectives and the provisions of the constitution that are of general application.” Wolff v. McDo nnell , 418 U.S. 539, 566 (1974).
For example, the Suprem

e Court has stated t

hat an inmate is en

ti tled to invok e the Fifth Amendment

privilege during disciplinary proceedings, but that the finde r of fact at such proceed ings may draw an adv erse inference from the inmate’s silence, an inference that is forbidden during criminal prosecutions. See Baxter v. Palmigiano , 425 U.S. 308 (1976). 3 It is unclear from the record what inferences the Disciplinary Board may have

drawn from Mr. Britt’s silence,

but it appears to us

that his disappear

ance from the pr

iso n and h is subsequent apprehensionin Decatur County speak for themse

lves. If Mr. B

ritt had chosen to testi

fy, he would have perhaps at

most been able to of

fer some mitigating evid

ence. We note, how

ever, that he did notsuggest at any stage of the proceedings the existence of any mitigating evidenc e he could have offered. We do not believe tha t Mr. Britt had dem

onstrated the slig

htest possibility that theoutcome could have been different if he had chosen to testify, and we find that any ar

guments based on

his Fifth Amendment privilege are without merit.
IV. The order of the trial court is affirmed. Remand this cause to the Chancery Court of Davidson County for f

urther proceed

ings consistent w

ith this opinion. Tax the costs on appe al to the appellant, David Britt.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.