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

ctober 29, 1999 MCKINLEY BROWN v. TENNESSEE DEPT. OF CORRECTION, ET AL 

### .

Appeal from the Chancery Court for Davidson County No. 98-2964-CH–00401 Ellen Hobbs Lyle, Chancellor

No. M1999-02519-COA-R3-CV - Filed February 23, 2001

This appeal involves a dispute between an inmate and the Department of Correction regarding the Department’s calculation of the inmate’s sentence reduc tion credits. The i

nmate claims

that when the Class X Felony Act was repealed in 1989, prior sentence reduction credit schemes were revived, and he became retroactively eligible for those cr edi ts. The inmate appeals th e dismissal of his complaint seeking decla

ratory re lief and damage

s. We affirm the trial court’s dismissal of his case. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM C. K OCH , J R ., J., joined. McKinley B

rown, Pro Se, Pikevi

lle, Tennessee,

appellant.
Paul G. Summers, Michael E. Moore & Kimberly J. Dean, Nashville, Tennessee for the appellees, Tennessee Depa

rtment of Correc

tion and the Tenne

ssee Attorney

General.

OPINION
In this appeal,McKinley Brown, a pro se inmate incarcerated at the Southeastern Tennessee Sta te R egio nal Cor rect ion al Fa cil ity, challenges the Department of Correction’s calculation of his sentence reduction credi

ts

. He does not claim an error in math, but instead asserts that various statutes entitle him to earn credits cumulatively or retroactively . The o pportuni ty for an inm ate to earncredits toward reducing his sentence derives exclusively from statute. Elig ibility for such credits is determined solely from the statutes t

hemselves. Jones v. Reynolds , No. 01A01-9510-CH00484, 1997 WL 367661 at *3 (Tenn. Ct. App. July 2, 1997) (no Tenn. R. App. P. 11 application filed). Thus, our

analysis of

Mr. Brown’s cla

ims must begin with th

e relevant statu

tes.
When Mr. Brown was convicted of aggravated rape on Nove mber 12, 1981, he r eceived a thirty (30) year sente

nce as a Class X

felon. Because

he was given 246

days of pre

trial jail credit,-2-

the effective date of his sentenc e was March 11, 1981. Since that time, the Tennessee statutes on sentence reduction credits have undergone much revision.
At the time of Mr. Brown’s offense and sen tencing, agg

ravated rape w

as a ClassX fel ony. At that time, indivi duals convi cted of such offe nses were not ent

itled to any f

orm of credits to reduce their sentences. Tenn. Code Ann. § 3 9-1-703(2) (Supp. 1980) [repe aled]; Tomlinson v. Tennessee Dep’t of Correction , No. 01A01-9804-CH-00204, 1999 WL 270383 at *3 (Tenn. Ct . App. May 5, 1999) (perm. app. denied Sept. 20, 1999).
This rule changed in 1983 for those convicted of Class X felonies. At that time, the General Assembly adopted Public Chapter 400, which became effect i ve July 1, 1983.

In pertinent p

art, Section 3 of Chapter 400 stated: Notwithstanding the pro vis ion s of thi s ch apt er t o th e con tra ry, a person convicted of
a Class X felony shall be eligible to receive prisoner performance

sentence credits as providedin Tenn. Code Ann. § 41-21-230 to reduce the expi ration date of such person’s sentence. The provisions of this subsec tion shall not affe ct the release classification e

ligibility da

te of Class X offe

nders.
Tenn. Code Ann. § 40-28-301(i) (Supp. 1983) [repealed]. Under the 1983 amendm ents, C lass X felons could earn prisoner performance sentence credits affecting their sentence expiration dates, but nottheir parole eligibility dates, by par ticipa ting in prison programs. Tenn. Code Ann. § 40-28- 301(i) [re pealed]; Jordan v. Campbell

, No. M1999-00540-COA-R3-CV, 1999 WL 1015581 at *1 (Tenn. Ct. App. Nov. 10, 1999) (perm. app. denied May 15, 2000) ; Hensley v. Dep’t of Correction , No. 01A01-9712-CH-00747, 1999 WL 141065 at *1 (Tenn . Ct. App. Mar. 17, 19 99) (no Tenn. R. App. P. 1 1 ap pli cat ion fil ed). Mr. Brow n ear ned ten days of performance sentence cred

its under this 1983 revision.
In 1985, with a new legislative enactment, eligible inmates , including those sentenced as Class X felons, were entitled to earn sentence reduction credits affecting both their sentence expiration dates and their r elease eligibility

dates, but only by signing a waiver of their right to earn credits under the prior law. Tenn. Code Ann. § 41-21-236(c)(3). The 1985 legislation provided: Any person who committe

d a felony,

including any

Class X felony

, prior to December

11, 1985 may b

ecome eligible

for the sentence

reducti on c redits authorized by this section by signing a written wa iver waiving theright to

serve the sent ence under the law in effect at the time the crime was committed. Howe ver , sentence reduction credi ts auth ori zed by this section may be awarded only for conduct and/or performance from and after the date a person becomes eligible under this subsection.
Tenn. Code Ann. § 41-21-236(c)(3) (1997). Under these new provisions, the Depar t ment was authorized to continue the pre viously enac

ted sentence cr

edit system on

behalf of inmate

s who chose1 For an explanation of the various types o f sentence credits, see Jones v. Reynol ds , 1997 WL 367661 at *3-4. -3- notto sign the waiver. Tenn. Code Ann. § 41-21-236(f) (Supp. 1985) (now codified in subsection (g)). Hensley v. Dep’

t of Corre ction , 1999 WL 141065 at *1. Mr. Brown signed the waiver on March1, 1986. He has since earned credits and does not in this action dispute the Depart men t’s calculation of th

ose credits.
As part of this 1985 enactment the legislature repealed those statutes creating prior systems for prisoner credit

s. Specifically

included in this re

peal were those

provisions previously codified at Tenn. Code Ann. §§ 41-21-212, 214, 228, 229, and 230. 1985 Tenn. Pub. Acts ch. 5 §§ 12 and 14. W hile the D epartment was au thorized to continue

to implement the pri

or systems fo

r those prisoners who chose to be so treated, the old system was not to be applied pr

ospectively

to persons sentenced in the future. The credits authorized by these repealed statutes had not been available to Mr. Brown prior to their repeal because of his status as a Class X offender.

In 1989, Tenn. Code Ann . § 39-1-701 etseq. (the Class X Felony Act) was repealed and replaced by the Sentencing Refor

m Act o f 1989, Tenn. Code Ann. § 40-35-101, et seq. Butler v. Tennessee Dep’t of Correctio n , No. 01A01-9 804-CH-00172, 1999 WL 129858 at *1 (Tenn. Ct. App. Mar. 12, 1999) (no Tenn. R. App. P. 11 application filed). It is this legislative action upon which Mr. Brown bases his claim for relief. He contends that the 1989 repeal of the Class

X Felony Act automatically

revived the sentence reduction schemes in ef f ect prior to its enactment, including Tenn. Code Ann. §§ 41-332 (later 41-21-212) and 41-334 (later 41-21-214.) He also claims that the repeal made him eligible retroactively for the credits crea ted by the “revived” s tatutes, e ven though he was ineligible for them at the time they existed.
Mr. Brown’s theory

that the repeal o

f the Class

X Felony Act made him eligible for “honor time” and good conduct credits under “revived” Tenn. Code Ann. §§ 41-332 (subsequently codified
as Tenn. Code Ann. § 41-21-212) and 41-21-229 indicates a misconception of the law. 1 It has long been the general rule that “a statute purporting to cover an entire subject repeals all former statutes upon the same subject, either with or without a repealing clause, and notwithstandin g it may omit material provision of the earlier statutes.” Lellyett v. Brooks , 62 S.W. 596, 603 (Tenn. Ct. Ch. App. 1901). Further, “[w]hen a statue is revised, or one act framed from another, some parts being
om itted, the parts omitted are not to be revived by construction, but are to be considered a s annulled.” Zickler v. Union Ba nk & Tr ust Co ., 104 Tenn. 277, 57 S.W. 341, 343 (1900). The primary exception to this rule

is when a statute designed to supercede or amend another law is found to be constitutionally infirm and no other stat utory provisions address th e subject. Under

those circumstances,

the previous law is revived and remains in full force. State v. Dixon , 530 S.W.2d 73, 74 (Tenn. 1975); McMinn County Bd. of Educ. v. Anderson , 200 Tenn. 333, 336, 292 S.W.2d 198, 199 (1956). Here, however, the previous statu es on sentence r

eduction credits , which continuously governed that area of the law, were never found to be unconstitutional, afact which is fatal to Mr. Brown’s argument. Therefore, the earlier sentence c redits statute were not revived.2 We further obse rve that “Te nn. Code Ann. § 41-21-229 (1982), by its own terms, does ‘not apply to sentences imposed upon Class X offenders .’” Mauldin v. Tennessee Dep’t of Correcti

on , No. 01A01-9801-CH- 00014, 1999 WL 5084 at *5 (

Tenn. Ct . App. Ja

n. 7, 1 999) (per

m. app. denied June 21, 1999). Thus, Mr. Brown was never enti tled to earn credits under that section. -4- As the secondpart of his argu ment, Mr. Brown a

sserts that the re

peal of Class

X Felony Act made him retroactivel

y eli gible for

those credits that were available to others from his sentencing until he signed his waiver.
Mr. Br own contends that Jones v. Reynolds entitles prisoners to “honor time” credits and good conduct credits under Tenn. Code Ann. §§ 41-21-212, 41-21-229 and 41-21-230 “across-theboard” including Class X felons who were statutorily prohibited from earning such credits. Jones
v. Reynolds , 1997 WL 367661 at *2-3. He relies on the following excerpt from Jones v. Reynolds : “The General Assembl

y envisioned that the new good conduct sentence credit program [embodied in Tenn. Code Ann. §§ 41-21-229 and 41-21-231] would apply across-the-board to all prisoners and thus did not provide a waiver or opt-in sys

tem to prisoners who committed crimes prior to July 1, 1981.” Id. at *3.
This language has been relied upon by other pr isoners seeking cumulative sentence reduction credits. This court responded to such an argument in Northcott v. Dep’t of Correction , No. M1999- 01223-COA-R3-CV, 1999 WL 1072572 (Tenn. Ct. App. Nov. 30, 1999) (perm. app. denied Oct. 9, 2000) as follows:
We believe Northcott is reading the above-quoted italicized statement out of context. In saying that the new good

conduct sentenc

e credit program embodied in T.C.A. § 41-21-229 and -231 was “envisioned” by the General Asse

mbly to“apply across-theboardto all prisoners ,” the Court was merely explaining why

there was no nee

d to have a specific opt-in provision to make these statutory pr ovisi ons applicable to prisoners who were sentenced prior to the effective date of the new good conduct credit progra

m.
Northcott, 1999 WL 1072572 at *4.
This samereasoning applies to Mr. Brown’s arguments. Jones cannot be read to imply that Class X felons were el

igible for the c

redits during the

time t hey were specifically excluded from credits or limited t

o specific ty

pe of credits. 2

As a Class X felon, Mr. Brown was not eligible for the sentence reduction credits established in any of the statutes he cites except Tenn. Code Ann. § 4 1-21-230, under which he received ten credits and remained eligible until he signed the waiver in 1986, and § 41-21-236, under which he has since been ear

ing credits. See Tomlinson , 1999 WL 270383 at *4. From the point when Mr. Brownopted to cease accumulating credits under § 41-21-230 by

signing the wai

ver, he was elig

ible-5-

to receive senten

ce reduction cr

edits under Tenn. Code Ann. § 41-21-236. See Tomlinson , 1999 WL 270383 at *3. Tenn. Code Ann. § 41-21-236 should not be read:

as provi ding that the inmate will be entitled to acc

rue sentence re

duction credits under the ne w s tatutes in addition to accruing sentence credits under the prior enactment. Instead, we interpret Tenn. Code Ann. § 41-21-236 to provide an inmate, who was accruing sent

ence credits und

er the prior statu

tes, the option of e

lecting to continue to accrue sentence reduction credits under that statute.
Crowder v. Dep’t of Correction , No. 01A01-9203-CH-00105, 1992 WL 207 7 61 at *3 (Tenn. Ct. App. Aug 28, 1992) (perm. app. denied Dec. 28, 1992).
To the extent that Mr. Brown’s claims can be construed to argue that §§ 41-21-212, 41-21- 229, and 41-21-230 sho

uld be applied ret

roactively

, such claims

must also fail. This

court addressed the issue whether prisoners were entitled to retroactive application of sentence red

uction credits in Henderson v. Lutche , 938 S.W.2d 428 (Tenn. Ct. App. 1996) (analy

zing the retroac

tivity of Tenn. Code Ann. § 41-21-236). In that case the court stated: Despite petitioner’s argument that the Department should app ly t he statue ret ros pect ive ly, there is a presum ption that courts a

re to apply statut

es prospectively unless there is a specific s tatutory directive requiring courts to apply them ret ros pect ive ly. Our supreme court has state d “[i]n the absence of legislative intent
or a necessary inference that a statute is to have retroactive force, an act of the legislatureis to be given prospective effect only by the courts.” Electric Power Bd.
v. Woods , 558 S.W.2d 821, 825 (Ten n. 1977). Courts must a pply a statut

e prospectively

in the absence of ‘“the

most clear and

unequivocal expression’” to the
con tra ry. Henderson v. Ford , 488 S.W.2d 720, 721 (Tenn. 1972) (quoting Jennings v. Jennings , 165 Tenn. 295, 54 S.W.2d 961 (1932)).
Henderson , 938 S.W.2d at 430. Tenn. Code Ann. §§ 41-21-212, 41-21-229 and 41-21-230 are silent
as to retroactive application an d there is not hing in the statute from which we can infer that the General Assembly intended it apply retroactively

. See Henderson , 93 8 S. W.2 d at 430 . Ac cord ingl y, there can be no r

etroactive appl

ication of these s

tatutes.
We turn to Mr. Brown’s waiver argument. He claims that his waiver under Tenn. Code Ann. § 41-21-360 was ineffective because he was not informed of “the rights he was waiving arising under the revived [repealed] statutes.” He maintains that he should have been informed in 1986 of his right to receive senten

ce reduction cr

edits under the pr

ior statutes beca

use of the 1989 repeal of Class X Felony Act. As stated previously, t he re peal of the Act did

not revive the pri

or sentencing c

redit reduction statutes. Because Mr. Brown was not entitled to any

additional senten

ce reduction cr

edits basedon the “revival” of the prior statutes, the waiver he signed did not effectively

lengthen his sentence, notwithstanding his contention to the contrary. Mr. Brown did not argue that he had no meaningful choice between the actual sentence reduction credit schemes a

vailable to him. This fact-6-

distinguishes Crowder , 1992 WL 207761 at *3, on which Mr. Brown relies. See Wilsonv. Tennessee Dep’t of Correction , No. 01A0 1-9806-CH -00302, 19

99 WL 652016 at *3 (Tenn. Ct. App. Aug. 27, 1999) (no Tenn. R. A

pp. P. 11 applicatio

n filed); compare Crowder , 1992 WL 207761 at *3.
To con clude, the judgment of the trial court is affirmed and the cause remanded for such further proceedings, i f any, as ma y be required consistent with this opinion. Costs on appeal are tax ed ag ain st M r. Br own for whi ch ex ecut ion may i ssu e if nece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE