# FILED

April 23, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FREDERICK WAYNE CAVITT ) ) Petitioner/Appell

ant, )

) Appeal No. ) 01-A-01-9712-CH-00713 VS. ) ) Davidson Chancery ) No. 97-2994-III TENNESSEE DEPARTMENT OF ) CORRECTION, ) ) Respondent/Appellee. ) APPEAL FROM THE CHANC ERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LYLE PRESIDING

FREDERICK WAYNE CAVITT #108657 N.W.C.C.3/B/202 Route 1, Box 660 Tiptonville, TN

38079 PRO SE/PETITIONER/APPELLANT JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General PATRICIA C.

KUSSMANN,

BPR 15506 Assistant Attorney General Civil Rights and Claim

s Division 425 Fifth Avenue No

rth Second Floor, Cor

dell Hull Building Nashville, Tennessee 37243-0488 ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: KOCH, J. CAIN, J.1 The statutory provisions regarding parole eligi bility da tes and their modification

ar e now found at Tenn. Code Ann. § 40-35-501(k) (1998 Supp.) which has remained in effect since its passage

as part of the Crim

inal Sentencing Reform Act of 1982. Both Appellant an d the Departme nt relied upon Tenn. Code Ann. § 40-30-501(k) as codifi ed in 1 985. That provision de als with persons convicted of felonies, but the more specific Class X felon provision in Tenn. Co de Ann. § 40-28-301 sh ould be applied in analy zing Mr. Cavitt ’ s situation. The two statutes do not dif fer substantively

in any way relevant to the issues raised in this a

ppeal. 2 

## OPINION In this appeal, a s tate prisoner chal lenges the extension of

his parole eligibility date by the Department of Cor recti on wh ich re sult ed fro m a disciplinary proceeding for infraction of department policies. Mr. Cav itt , the Appellant, contends the 1991 extens io n increased his 1985 sentence ex post facto

. The trial court dismissedMr. Cavitt’s c omplaint for de

claratory j udgment for fa ilure to st ate a c laim up on whi ch rel ief co uld b e gran ted. We affir m. I. In 1 985, Mr. Cavitt plead guilty to second degree murder and was sentenced to 35 years imprisonme nt for an offense c

ommitted M

arch 23, 1985. He was to become

eligible tobe considered for parole after serving 30% of that sentence. At the time of

his offense and his se

ntencing, Tenn. Code Ann.§ 40- 28-301 [enacted 1979, re

pealed by 1985 Tenn. Pub. Acts (1 stE.S.), ch 5 § 7] was in effect. 1 That statute provid ed: (h)(1) The release cla ssification eligibili

ty date provided for in this section sha ll be the earliest

date a personconvicted of

a Class X felony

shall be eligible for release c l assification status, such date being conditio ned on the prisoner’s good behavior while in p ri son. For a violation of a ny of the rules of

the department

of correction

or the institution in whic

h the personis incarcerated the commissione

r of correction or h is de signees, may

defer the relea

se classification eligibility date so as to increas e the total amount of time a person must se

rve before becom

ing eligible for3 release classification sta

tus. This increase may

, in the discretion of the comm ission er, be in any a mount of time not to exceed the full sentence originally imposed by the court and shall be impose d pur suant to regulations promulg ated by the comm issioner of correctio n. [Acts 197 9, ch. 318 § 20]. In 1985, the Department’s written policy outlining punishments which a discipl in ary committee was au thorized to impose fo

r violation of Depar

tment policies did not include any exte nsion of a prisoner’s parole eligibility date other than through loss of sent

ence reduction cre

dits. Appellant states that on Febru

ary 15, 1989, new Disciplinary Punish ment Guidelines were enacted.In relevant part, Policy 502.0

2 of these 1989 policies provided: “In all cases in which an inmate is found guilty of a

disciplinary offense thatresulted in physical injury to an employee, voluntee

r or visitor , in a ddition to any otherpunishment impos ed, the offender’ s parole or release eligibility date shall

be ext en ded by adding thereto an addi tiona l thirty (30) perce nt (%) of the offender’s original m axim um sentence, or by extending the inmate’s paro le or release eli gibility date to the sentence expir ation date, whiche

ver is less. On May 16, 1991, in an administrative proceeding before the disciplinary committee, Mr.Cavitt

was found

guilty of assault whic

h resulted in injury to a correctional officer. In reliance on TDO C Policy 502.02, quote d above, the disciplinary committee recommendedthat Mr. Cavitt be required to serve

60% of his 35-year sentenc

e, rather than the 30 % previously required, before becoming eligible

for release on parole. That recommenda tion was approved by the commissioner of

correction on May 21 , 1991. Mr. Cavitt argues that b y extending his p arole eligibility date, th e Department

imposed a greater or more severe puni shment in 1991 than wa s prescribed by law at the time of his original offense , conviction, and sentence in 1985. This action, he asserts , violates the ex post facto clause of Article I,4

Section 10 of the U.S. Constitution and Article I, Section 11 of the T enne ssee Constitution. Specificall y, Mr. Cavitt argues that the 1989 Department policy authorizing

extension of parole

eligibility for specified disciplinary offenses was not in effect at

the time of his offense, conviction and sentencing and, therefore, cannot be applied to him to alter his punishment to his disadvantage. Mr. Cavitt filed a petition for declaratory judgment in the Chancery Court for Davidson County pursua nt to the Administrative

Procedures Act,

having requested a declaratory ord e r from the Departm

ent of Correction a

nd having been denied relief

by the Department. See Tenn. Code Ann. § 4-5-224 (1998). The Department file

d a motion

to dismiss pursuant to Tenn. R. Civ. P. 12.02(6), which the trial court gra

nted. The trial c

ourt held that the polic

y a uthoriz ing extension of parole eligibilit

y is not an ex post facto law since it does not increase the quantum

of punishment. The court further held that the extension of Mr. C avitt’s par ole eligibility date w as the result of his vi

olation of Department

policies, after

notice that such extension was a potential punishment for such violation, and not

an enhancement of t

he punishment for

his underlying conviction. II. The United States Constitution, Article I, Sec tion 10 f orbids the states from passing

any ex post facto

laws. The Constitution of Tennessee, Article I, Section 11 contains a simil ar prohibition. Mr. Cavitt has brought claims under both. The interpretat

ions by the Unit

ed S tates Supreme Court of the federal constitutional provision and those of t he Tennessee Supr

eme Court of the sta

te constitutional provision are comple mentary and consiste

nt. Kaylor v. Bradley , 912 S.W.2d 728, 731 (Ten n. App. 1995). The ex post facto

prohibition is “aimed

at laws that `ret

roactively alter t

he5

definition of crimes or increase the punishment for criminal acts.’” California Department

of Corrections v. Morales , 514 U.S. 499, 504, 115 S. Ct. 1597, 1601, 131 L.Ed.2d 588 (199 5 ). An ex post facto law “changes the pu

nishment, and inflicts a greater punishme nt than the law annex ed to the crime when committed.” Weaver v. Graham, 450 U.S . 24, 101 S.Ct. 960, 67 L .Ed.2d 17 (1981). T he c ritical question in a n ex post facto

claim such as Mr. Cavitt’s is “whether the law changes the punishment to th e defendant’s disad

vantage, or inflicts a greater punishment than the law allowed when the offense occurred.” State v. Pearson , 858 S.W.2d 879, 883 (Tenn. 1993). U nderboth state and feder al constitutions and ca

ses interpreting t

hem, tw o factors must be present to establish a viol ation of the ex post facto

prohibition: (1) the law must apply retrospec tively to events

occurring before its enactment, and (2) it must disadvantag e the offender affected by it

. State v. Ricci , 914 S.W.2d 475, 480 (Tenn. 1996); Kaylor v. Bradley , 912 S.W.2d 728, 732 (Tenn. App. 1995); State v. Pearson 858 S.W.2d

879, 882 (Tenn. 1993 ) (quoting Miller v. Florida , 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). III. Actions w hich ex tend parole eligibility can implicate the ex post facto clause. “The State cannot, and indeed does not, argue thatretroactive alte rations of the crit eria for parole eligibility cannot implicate ex post facto concerns. Eligibility

for parole consideration is part of the law annexedto the crime when committed.” Kaylor v. Bradley , 912 S.W.2d at 73 2, citing Weaver v. Graham , 45 0 U.S. at

32-33, 101 S.Ct. at 966 (other citations omitted.). As the U.S. Supreme Court rec

ently stated: As we recognized in Weaver , retroactive alteration of paroleor early release pr

ovisions, like the retroacti ve application

of provi sions that gover n initial sentencing, implicates the Ex Post Facto Clause2 Tenn Code Ann. § 40

- 35-501(k), applying to all fe lons, was also in effect at the time Ap

pellant comm

itted his offens e and was codified then as Tenn. Code Ann. § 40-35-501(h). 6

because such credits are “one deter minant of peti tioner’s p rison term ... and ... [the pe titioner’s] effective sent enc e is altered once th is determinant is changed.” Ibid . We explained in W ea ver that the removal of

such provisions can constitu te an increase in punishment, because

a “prisoner’s eli

gibil ity for reduced imprisonme

nt is a significant

factor entering into both the defendant’s dec ision to plea bargain a

nd the judge’s calculatio n of the sentence to b e imposed.” Lynce v. Mathis , 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In the instant case, the a nalysis of any ex post facto implication of Mr. Ca vitt’s claims must begin with Tenn. Code Ann. § 40-28-301(h)(1), quoted above, which was part of “the law annexed to the crime” whic h Mr. Cavitt committed in 1985. 2 By its plain words, that statute put

offenders on notice that the irre lease classification or parole consideration eligibility date was “conditioned on the prisoner’s good behavior while in prison” an d t hat the commissionerof correction could d efer an inmate’s release eligibilit

y date for

aviolation of departm

ent rules “so as to increase the total amount of time a personmu st ser ve before becoming el igible for release clas sification status .” Tenn. Code Ann.§ 40-28-301. Thus, at the time of Mr. Cavitt’s offense, the law clearly allowed deferral of parole eligibility on

the basis of an inmat

e’s conduct while in

carcerated. The Department’s adoption of Polic y 5 02.02 did not retroac tively increase the punishment

for offenses committed after t he adoption of Tenn. C

ode Ann. § 40- 28-301 in 1979. From the mom ent he was sen tenced in 1985, Mr. Cavitt’s release eligibilit

y was contingent upon hi s good behavior in prison

.7 IV. The principle on which ex post fact o prohib itions are based is one of fairness. Individuals have a r ight to fair

warning of the

conduct which will give rise to criminal penalti es. Marks v. Unit ed States , 430 U.S. 188, 87 S.Ct. 990, 51 L.Ed.2d 260 (1977) . This includes the right to fair war

ning of the nature and severityof the possible penalties involved. As the U.S. Supreme Court has noted: Critical to relief under the Ex Post Facto Clause is not an individual’s right to les s pun ishment, but the lack of fair notice and gover nmen tal restraint whe n the legislature increases punishment beyond what was prescribed when th

e crime was consum

mated. Weaver v. Graham, 450 U.S. at 30- 31, 101 S.Ct. At 965, 67 L.Ed.2d 1 7. Mr. Cavitt’s parole

eligibility date was deferred because he was found to have assaulted a corre

ctional officer,

causing him

injuries. Thus,

the extension of his parole eligibility date was not the result of a le gislative or administrative enactment

which increased his punishment for his original 1985 criminal offense. Rather, it was t

he result of his 1991 conduct while incarcera ted. At the time he committed hi s assault, TDOC Policy 502.02

had been in effect for two years. Mr. Cavitt clea

rly h ad fair warning of

the consequences of an assault before he committe

d the assault. In Reinholtz v. Bradley , 945 S.W.2d 727 ( Tenn. App. 1996),

an inmate challenged the extensionof his release eligibility date based upon another provision of Policy 502.02 which authorized such extension when an inmate is foundguilty of the disciplina ry offense of esca

pe. This Court uphe

ld the extension of his release eligibility date against an ex post facto challenge. This opinion is consistent wi

th Reinholtz

. We hold that the extension of Appellant’s parole e l igibility date on the8

basis of his 1991 injurious assa ult on a correctiona

l officer as autho

riz ed by policy 502.02 did not violate the ex post facto prohibitio n o f federal and stat e constitutions because: 1) T.C.A. § 40-28-301(h)(1) was part of the law annexed to the crime he

committed in 1985 and clearly notifie d offenders that the

ir parole eligibility could benegatively impacte d by their conduct whi

le incarcerated ; 2) Policy 502.02 was effec

tive prior to the assa

ul t , thereby giving Appe llant fair warning of the potential consequences of his actions; and 3) the extension was the result of Appellant’s 1991 cond

uct and not the result o

f a retrospective application of increased punishment to his 1985 criminal offense. V. The order of the trial

court dismissing

Appellant’s action

is affirmed. This mat ter is rema nded to the Chancery Court of Davidson County for any further proceedings consistent with this op inion. Costs of this a

ppeal are t axed to Appellant.

_______________________________ PATRICIA J. COTTRELL, JUDGE CONCUR:

____________________________ WILLIAM C. KOCH, JUDGE

____________________________ WILLIAM B. CAIN, JUDGE