FILED

February 21, 1997

Cecil W. Crowson

Appellate Court Clerk

RONALD L. DAVIS, )

Petitioner/Appellant, ) Appeal No.

) 01-A-01-9610-CH-00487

v. )

)

TENNESSEE DEPARTMENT OF ) Chancery Court No.

CORRECTION and DONAL ) 96-304-II

CAMPBELL, Commissioner, )

Respondents/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

RONALD L. DAVIS, PRO SE

N.W.C.C.

Rt. 1 Box 660

Tiptonville, TN 38079

CHARLES W. BURSON

Attorney General and Reporter

BRENDA RHOTON LITTLE

Counsel for the State

Parker, Allen & Crawford

Suite 511, Cummins Station

209 10th Avenue, South

Nashville, Tennessee 37203

ATTORNEY FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

 The Department finally responded by letter dated February 1996. The letter stated that

the Department deemed Petitioner's request inappropriate and explained that an error had been

made on the 9 January 1992 summary. 

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OPINION

This is an appeal by petitioner/appellant, Ronald L. Davis, from the decision

of the chancery court granting the motion for summary judgment filed by

respondents/appellees, the Tennessee Department of Correction (“the Department”)

and Donal Campbell, Commissioner. The order resulted in the dismissal of

Petitioner's petition for a declaratory judgment that the Department had incorrectly

calculated Petitioner's release eligibility date and thereby violated the Ex Post Facto

Clause of the United State Constitution. The facts out of which this matter arose are

as follows.

In November 1982, a jury convicted Petitioner of aiding and abetting second

degree murder, and the court sentenced him to ninety-nine years. The Department

calculated Petitioner's release eligibility date to be November 2012. In March 1986,

Petitioner signed a waiver allowing him to receive sentence credits. Petitioner

received a sentence summary on 9 January 1992 which stated that his release

eligibility date was 6 July 2010. On 15 May 1992, Petitioner received a second

sentence summary which the Department generated using its new computer system.

This summary listed Petitioner's release eligibility date as 17 September 2010.

Petitioner petitioned the Department for a declaratory order on 6 November

1995 and requested a correction of his release eligibility date. Respondents did not

reply, and Petitioner filed his petition for a declaratory judgment in the Davidson

County Chancery Court on 29 January 1996.1

 Petitioner asked the chancery court for

the following relief: 1) declare the second sentence summary void and find that the

second summary violates the Ex Post Facto Clause and the Due Process Clause; 2)

order Respondents to correct the error; and 3) order a bench trial on all triable issues.

On 4 April 1996, Respondents filed a motion to dismiss pursuant to Rule

12.02(6) of the Tennessee Rules of Civil Procedure or, in the alternative, a motion for

summary judgment and attached an affidavit. On 10 June 1996, the chancery court
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entered a memorandum and order granting Respondents' motion for summary

judgment. It is the opinion of this court that the chancery court thoroughly examined

the issues and came to the proper conclusion.

On appeal, we review a decision on a motion for summary judgment as if we

were deciding the motion initially. Clifton v. Bass, 908 S.W.2d 205, 208 (Tenn. App.

1995). In other words, we too must determine whether there are any genuine issues

of material fact and whether the moving party is entitled to judgment as a matter of

law. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Moreover, this court has

stated that the moving party “must produce or point out evidence in the record which,

if uncontradicted, entitles [the moving party] to judgment as a matter of law.” Armes

v. Hulett, 843 S.W.2d 427, 429 (Tenn. App. 1992). If the non-moving party fails to

contradict the evidence or establish that the moving party is not entitled to a judgment

as a matter of law, the moving party shall prevail. See id.

There is one possible factual dispute in this case, i.e., which sentence summary

listed the correct release eligibility date. Respondents provided evidence with their

motion that the second sentence summary listed the correct date. This evidence

consisted of an affidavit statement from Candace Whisman, Sentence Technician,

Sentence Information Services, Tennessee Department of Corrections, that the

summary dated 15 May 1992 listed the correct date and that the error was due to the

Department's old computer system. Petitioner responded by filing all of the sentence

summaries he received since 17 September 1986. These summaries clearly show that

Petitioner's release eligibility date continued to move forward each time a report was

generated until 15 May 1992. Nevertheless, it is the opinion of this court that this

evidence does not contradict the evidence of Respondent that the 15 May 1992

summary contained the correct release eligibility date. Thus, there is no factual

dispute as to which release eligibility date is correct.

The next determination is whether Respondents were entitled to a judgment as

a matter of law. It is the opinion of this court that the chancellor correctly concluded

that the law entitled Respondents to a judgment. It is Petitioner's contention that the

recalculation of his release eligibility date violated the Ex Post Facto Clause. The

United States Constitution Provides “[n]o state shall . . . pass any . . . ex post facto
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Law.” U.S. Const. art. I, § 10, cl. 1. An ex post facto law is “any law 'which imposes

a punishment for an act which was not punishable at the time it was committed; or

imposes additional punishment to that then prescribed.'” Weaver v. Graham, 450

U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981) (quoting Cummings v.

Missouri, 4 Wall. 277, 325-26, 18 L. Ed. 356 (1867)). A change in release eligibility

dates only raises an ex post facto concern if its effect is “to impose a greater or more

severe punishment than was proscribed by law at the time of the offense.” Kaylor v.

Bradley, 912 S.W.2d 728, 732 (Tenn. App. 1995). In this case, there was no “law”

to raise ex post facto concerns. Nevertheless, if we assumed that the error was the

result of the application of a law, we would still conclude that it did not violate the

Ex Post Facto Clause because it did not impose a greater or more severe punishment

than was applicable to Petitioner in 1982.

Therefore, it results that the judgment of the chancery court is affirmed, and the

cause is remanded to the chancery court for any further necessary proceedings. Costs

on appeal are assessed against petitioner/appellant, Ronald L. Davis.

_____________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_______________________________

BEN H. CANTRELL, JUDGE

_______________________________

WILLIAM C. KOCH, JR, JUDGE