# FILED February

21, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk RONALD L. DAVIS, ) Petitione r/Appell ant, ) Appeal N o.

) 01-A-01- 9610-CH- 00487 v. ) ) TENNESSEE DEPARTMENT OF ) Chancer y Cour t No. CORRECTION and DONAL ) 96-304-II CAMPBELL, C ommissioner, ) Respondents/Appelle es. )

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, PROSE N.W.C. C. Rt. 1 Box 6 60 Tiptonville , TN 38 079

CHARLES W. BURSON Attorney General and Reporter BRENDA RHOTON LITTLE Counsel for

the State Parker, Allen & Crawf

ord Suite 511, Cumm

ins Station 209 10th Ave nue, South Nashville , Tenne ssee 37203 ATTORNEY FOR RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED SAMUEL L. LEWIS, JUDGE1 The Department finally responded by le

tter dated February

1996. The letter stated that the Department deemed Petitioner's reque st inappropriate and explained that an error had been made on the 9 January 1992 summary . -2- 

## O PI NI ON This is an appeal by peti tioner/app ellant, Ronald L. Davis, from the decision o f the chance

ry cou rt grantin g the motion for su mmary j udgmen t filed by respondent s/appellee s, the Tennessee Department of Correction (“the Departm ent”) and Donal Ca

mpbel l, Com

missio ner. T

he order r

esulted in t

he dism iss al of Petitioner's petition for a declaratory judgm ent that the

Departm ent had inc orrectly calculated Petitione

r's rele ase eligib ilitydate and thereby violated the Ex Po st Facto Clauseof the United State Constitution . The f

acts out of

which this matter arose are as follow s. In Novem

ber 1982, a

jury convicted Petitione

r of aidingand abetti ng second degree murde

r, and the court sent

enced him

to ninety -nine y ears. T

he Depar tment calculated Petitione

r's rele ase eligib ility d ate to be N ovembe r 2012. In

March 1986 , Petitionersigned a waiver a llowi ng him to receive sentence credits. Petitioner received a sentenc e summ ary on 9 Janua ry 1992 wh ich stated

that his re lease eligibility date was 6 July

2010. On 1 5 May 1 992, Peti tioner re ceived a s econd sentence summ

ary w hich the D epartm

ent generate d using its new comp ut er s yst em. This sum mary listed Pe titioner' s release eligibility

date as 17 S eptem

ber 2010. Petitionerpetitioned the Department for a declaratory order on 6 November 1995 and reque sted a cor

rection of his relea se eligibility

date. Respondents di d not rep ly, and Petiti oner fil ed his peti tion for a declara tory j udgmen

t in the Da

vidson County Chancer y Cour t on 29 January

1996. 1 Petitioner

asked the c hancery

court for the follow ing relief: 1) declar e the seco nd sentence

summ ary vo id and find t

hat the second summ ary vi olates the

Ex Post F acto Clau se and the Due Proc ess Clause ; 2) order Respondent s to corre ct the error; and 3) order a bench tria

l on all tri able issue s. On 4 April 199 6, Respond ent s f iled a m otion to dism

iss pursuant

to Rule 12.02(6) of the Tennessee Rules of Civil Procedure or, in the alter native, a motion for summar y judgment and attached an affidavit. On 10 June 1996, the chancerycourt-3-

entered a mem

orandum and order granting Respondents' motion for sum mary judgm ent. It is the opinion of this court that the chancery court thoroughly examined the issues a

nd cam e to the pro per conclusion. On appeal, we reviewa decision on a motion for su mmary judgment as if we were deciding the motion in itially. Clifton v. Bass , 908 S.W .2d 205, 20 8 (Tenn. App. 1995). In other w ords, we too mus t determ

ine whether

there are any genuine issues of mate rial fac t and whet

her themoving party is entitled to judgm ent as a ma

tter of law. Byrd v. H

all , 847 S.W .2d 2 0 8, 214 (Tenn. 1993). Moreover, this court has stated that the m

oving party

“m ust produce

or point out e vidence in

the recor d which, if uncontradicted, entitles [the moving party] to judgment as amatter of law. ” Armes v. Hulett , 843 S.W .2d 427, 42 9 (Tenn. App. 1992) . If the non-moving party

fails to contradictthe evidence

or establi sh that the m

oving party

is not entitl ed to a ju dgment as a matter of law, the moving party shal l prevail. See id. There is one possibl e factua l dispute in

this case, i.e., which sentence sum mary listed the correct

release elig ibility date . Respondent s provided e vidence w ith their motion that the se cond senten ce sum mary listed the correct

date. T his e vidence consisted of an affidav it state ment f rom C andace W

hisma n, Sente nce Tec hnician, Sentence Information Ser vices, T ennessee Departm ent o f C orrectio ns, that th e summar y dated 15 May 19 92 listed the correct date and th at the er

ror was due to the Department's old computer s ystem. Petitione r responde d by fi ling all of the sentence summar ies he received since 17 September 1986. These summaries clearly show that Petitioner's release eligibility date continued to move forwa rd each time a report w as generated until 15 May

1992. Ne verthele ss, it i s the opinion o f this cour t that this evidence does not cont

radict the evidence of Respondent that the 1 5 May 1 992 summar y contained the correct release eligibility date. T hus, there is no factual dispute as to which re lease eli gibility date is cor

rect. The next deter

minat ion is whet

her Respon dents were e ntitled to a judgment as amatter of law. It is the op inion of this court that the chancellor correctly concluded that the law enti tled Respon dents to a j udgmen t. It is Pet itioner's contention t

hat the recalcu lationof his rel ease elig ibility date viola

ted the Ex

Post Fac to Clause. T he Un ited States C onstitution P rovides “ [n]o sta

te shall . . . pass any . . . ex po st facto-4-

Law.” U.S. Const. ar

t. I, § 1 0, cl. 1. An ex post facto law is “any law 'which imposes apunishment for an act which was not punishable at the time it was com mitte d; or imposes additional punishment to that then prescribed.'” Weav er v. G rah am , 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. E d. 2d 17, 22 (1981) (quo ting Cumm ings v. Missouri , 4 Wall. 277, 325-26 , 18 L. Ed. 356 (1867)). A change in relea se eligibil ity dates only r aises an e x post fact o concern i f its eff

ect is “to impose a greater or m ore severe punish ment than was pro scribed b y law at the time of the o ffense.” Kaylor v. Bradley , 912 S.W.2d 728, 732 (Tenn. A pp. 1995). In this case, there was no “law” to raise ex post fac to concer ns. Neve rtheless, if we as sumed

that the e

rror wa s the result of the application of a law , we would still conclude that it d

id not violate

the Ex Post Fac to Clause be cause it di d not im pose a gre ater or

more severe pu nishme nt than was a

pplicable to Petition er in 1982. Therefore, it results that the j udgmen t of the cha

ncery court is affirm

ed, and th e cause is remanded to the

chancer y cour t for anyfurther necessar

y proc eedings. Costs on appeal a

re assess ed against petitioner /appellant , Ronald L . Davis.

_________________

____________ SAMUEL L. LEWIS, JUDGE CONCUR:

_________________

______________ BEN H. CANTRELL, JUDGE

_________________

______________ WILLIAM C. KOCH, JR, JUDGE