# FILED
September 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION WILLIAM D. CARROLL, ) ) Filed: September 29, 1997 Appellant, ) ) LAUDERDALE LAW ) Vs. ) ) HON. JOSEPH H. WALKER, ) JUDGE FRED RANEY, WARDEN, ) ) Appellee. ) No. 02-S-01-9610-CC-00086

For Appellant: For Appellee: Julie K. Pillow John Knox Walkup Assistant Public Defender Attorney General & Repor ter Covington, Tennessee Michael E. Moore Gary F. Antrican Solicitor General Pubic Defender Covington, Tennessee Gordon W. Smith Associate Solicitor Gener al Nashville, Tennessee



## O P I N I O N

AFFIRMED ANDERSON, C.J.1 The punishm ents for rape included death by electrocution, life imprisonment, or a determinate sentence of at least ten years. Tenn. Code Ann. § 39-370 2 (1955 & Supp. 196 1). -2- The defendant filed a writ of habeas cor pus seeking his freedom from prison on the grounds his commuted sentence had expired pr ior to being revoked by the Governor. The trial court found that the commuted se ntence from life to “22 years to li fe” had expired before the Gove rnor’s revocation and granted the defendant’s petition for the writ of habeas corpus. The Court of Criminal Appeals rev

ersed, holding that the Gov ernor’s commutation was conditional and that the Gover nor had the authority to r evoke the commutation at any time throughout the defendant’ s life.

Although we disagree that the commutation contained an express condition, we conclude the Governor had the authority to first commute the sentence to an indeterminate term of “ 22 years to life,” and als o to revoke the commutation at any time during the defendant’s life because the defendant w as considered in legal cus tody until his life senten ce expired at his death. Accordingly, w

e affirm the Court of Criminal Appeal s’ judgment based on the separat e rationa le develop ed below.

BACKGROUND In May of 1962, the defendant, William D. Carr oll, was convict

ed of rape and sentenced to death, which w as then an available punishment for the offense. 1 In 1964, Governor Frank Clement commuted Carroll’s sentence to a term of life imprisonment. In Nov ember of 1972, Carroll’s li fe sentence was again commuted by Governo r Winfield Dunn to a term of “22 years to l ife.” The defendant was released on parole in December of 1972, but convic ted the following year of robbery with a deadly weapon. In March of 1974, Gov ernor2 The re med y of habea s corpu s is the pro per proc edure th rough w hich to allege that a senten ce of im prisonm ent has expired. Arche r v. State , 851 S.W .2d 157 ( Tenn . 1993); Ricks v. State , 882 S.W .2d 387 (Tenn. Crim . App. 1994). -3- Dunn rev

oked the commuted

sentenc e and rei nstated

a term of

life imprisonment.

In 1992, the defendant, who was then incarcerated at Fort Pi llow prison, filed a petition for the wri t of habeas corpus, alleging that the commuted sentence of “22 years to life” had expired in 1973, or prior to the governor’s purported revocation. 2 Although the trial cour t initially denied r

elief, the Court of Criminal Appeals remanded for a hearing to determine whether and when the commuted sentence had expired. Carroll v. Raney, 868 S.W.2d 721 (Tenn. Crim. App. 1993). On remand, the trial court found t hat the commuted sentence was unconditional and that, apply ing applicable sentencing credits, the defendant Carroll had served a 22-year sentence prior to the Governor’s rev

ocation. The Court of Criminal Appeals r eversed, holding that the commutation was conditional and that the Gover nor had authority to rev oke the sentence at any time during the entire ter m. We then granted the application for permiss ion to appeal.

GOVERNOR’S POWER OF COM MUTATION We first turn to the Constitution to determine the extent of the Governor’s power to commute sentences. The Tennes see Constitution, art. III,§ 6, states the Governor “shall hav e the power to grant r

eprieves and pardons, after conviction, except i n cases of impeachment.” As this Court has recognized , the power to grant repri eves and pardons “embraces the right to commute a3 Similarl y, the statutor

y provi sions governi ng parole, Tenn. Code Ann. § 40-28- 101--127 (1990 & Supp. 1996), specifi cally provide t hat nothi ng contained t herein “shal l be constr ued in any way as int

ended to modify or abridge t he pardoning power of the gover nor.” Tenn. Code Ann. § 40-28-128 (1990). -4- sentence, that is, to impose a lesser or shorter sentence for the sentence imposed following a defendant’s conviction.” Bowen v. State , 488 S.W.2d 373, 375 (Tenn. 1972); see also Ricks v. State , 882 S.W.2d at 391. The commuted sentence to a lesser term sta nds as if it had been the judgment i mposed in the first instance. Bowen , 488 S.W.2d at 375.

The Governor’s power to grant reprieves, pardons and commutations is limited only by the l anguage in the Constituti on. State ex re l. Bedfo rd v. McCorkle , 163 Tenn. 101, 40 S.W.2d 1015, 1016 (1931). Thus, whi le the power is also recognized by statute, see , Tenn. Code Ann. § 40-27-101 (1990), this Court has observed:
The vestiture of the power to grant reprieves and pardons in the chief executive is ex

clusive of all other depar tments of the state, and the Legislature cannot, directly or indirectly, take it from his control, and vest it i n others, or authorize or require it to be exercised by any other officer or authority. It is a power and a duty intrusted to his judgment an d discretion, which c annot be interfered with, and of which he cann ot be relieved.
State ex rel. Rowe v. Connor , 166 Tenn. 393, 61 S.W .2d 471, 472 (1933). More recently, the Court of Cr iminal Appeals has declared “neither the legislatur e nor the judicial branch of gov ernment has the authority to regulate or control the governor’s power to commute a sentence.” Ricks v. State , 882 S.W.2d at 391. 3

The Governor also has the autho rity to attach conditi ons or restrictions to a commuted sentence that are reasonabl e, legal, and possible for the defendant to perform. See , e.g. , McCorkle , 40 S.W .2d at 10 16 (“obey t he law in eve ry way,4 Now c odified in T enn. Co de Ann . § 40-20 -107 (19 90), the de termin ate/indete rmina te disti nction appl ied to of fenses committed before Jul y 1, 1982, when sentences were det ermined by the j ury. When a defendant was conv icted of a felony , the jur

y was to i mpose a minimum and maximum term for the of fense, i. e., an i ndeterminate sent ence; for t he most serious cri mes, such as rape, the jury was t o impose only a determinati ve sentence. The di stincti on primaril y pertai ned to a defendant ’s parol e eligi bili ty dat e. Tenn. Code Ann. § 40- 3612 (1975)[Now Tenn. Code Ann. § 40-28-115 (1990) ]. Sentenci ng by jury , and the det erminate/i ndeterminate di stincti on, has been largely abolish ed in the pr esent s entenc ing act. Te nn. Cod e Ann. § 40-35-1 01, et seq . (1990 & Supp. 1996). -5- lead the life of a good citiz en, and refrain from the use, sale, manufactu re or possession . . . of intoxi cants.”); Ricks v. State , 882 S.W.2d at 393 (“parole and/or commutation supervision by the Bd. of Paroles until the expiration of his original sentence”). Upon a finding that a conditi on has been violated, the commuted sentence may be revok ed by the Governor, pr ovided that the sentence has not expired. See Rowell v. Dutton , 688 S.W.2d 474, 477 (Tenn. Crim. App. 1985).

In this case, the de fendant’s argument is two- fold. First, he argues that the commuted sentence of “22 years t o life” must be interpreted as a 22-year determinate sentence because, at the time of the offense and at the time of the commutation, an indeterminate sentence could not be imposed for rape. See Tenn. Code Ann. § 40-2707 (1975); Franks v. State , 187 Tenn. 174, 213 S.W.2d 105, 109 (1948). 4 Second, he contends that the unconditional commutation of 22 years expired pr

ior to the Governor’s

revocation of it. The tri al court agreed. The Court of Criminal Appeals, however, interprete d the commuted sentence as conditional, while con ceding that the “22 year s to life” was an indeter minate sentence. Specifically r elying on the “to li

fe” language, the court conc luded that the Governor had the authority to revoke the commutation of the defendant’s sentence throughout the remainder of the defendant’s life.-6- We agree with this result but not the reasoning. The majority view with regard to conditional pardons is that “the conditions, to be operative, must appear on the face of the paper, and must be clear and specific.” 59 Am. Jur. 2d, Pardon and Parole , §63 at 52 (2d ed. 1987); 67A C.J .S., Pardon and Parole , §37 at 49 (1978 & Supp. 1997); see also Connors , 61 S.W.2d at 473 (“by apt language in the instrument itself, the Governor . . . can stipulate that he sha ll have exclusive pow

er to determine whether the conditions of a pardon issued have been broken.”). The tr ial court found, and both parties on appeal now recognize, that the Gov ernor’s commutation in this case did not contain an express condition. Although it is arguable that the words of the commuted sentenc e “to life ” imply a con dition, we believe th is approa ch is less p ersuasive than the rationale we hav e chosen. Compare Ricks , 882 S.W.2d at 393, n. 23 (defendant “will be under p arole and/or commutation superv ision by the Board of Paroles until the expiration of his original sentence.”).

In our view, the Gov

ernor had the constitutional authority pursuant to article III, § 6 of the Tennessee C onstitution to grant a commuted sentence of “22 years to life,” ev

en if the applicable statutes pr ecluded the imposition of an indeterminate sentence for the offense of rape. For example, in State v. Fields , 925 S.W.2d 561 (Tenn. Crim. App. 1996), the Gover nor commuted the defendant’s death sentence to a term of ninety -nine years. The defendant later sought po st-convic tion relie f on the basis tha t the only o ther lega lly effe ctive sentence for first-degree murd er at the time of his offense was li fe imprisonment, and not a term of ninety-nine y ears. The Court of Criminal Appeals rejected the assertion that the commuted sentence was illegal:-7- [T]he on ly sentenc e that co uld legall y have been ordered b y a judge or jury w

as life imprisonment. We conclude, howev er, that these cases and the law set forth therein do not and canno t restrict the constitutional authority of the Governor to commute a defendant’s sentence to a term less than life. . . .

Id . at 563.

Other state courts hav

e reached si milar concl usions. The M aine Supreme Court did so in Baston v. Robbins , 135 A.2d 279 (Me. 1957). There, the Governor c

ommuted the defen dant’s eig ht-year sentence for r ape to a term fr

om four to eight years. The defendant was paroled, but when h e violated a condition of parole, he was ordered to complete his commuted sentence. He sought habeas corpus relief, alleg ing that the commutation was an indeterminate sentence in v

iolation of M aine’s stat utory sent encing law . The Maine Su preme Court, after first noting that the commuted term was a reduc tion of the original sentence, held: [A]uthority of the Govern or and Council is deriv ed from the Constitution and it may commute the sentence with such restrictions as may be deemed proper. If the restrictions and limitations imposed are in conflict with the prov isions of any statute, then such statute does not control

. . . .
Id . at 281. Likewise, in Green v. Gordon , 246 P.2d 38 (Cal.), cert

. denied , 344 U.S. 886 (1952), the defendant argued that th e Governor could not commute his death sentence to life without the possibility of parole because the only punishments established for the off ense of first-degree murder by the legislature were death and life with the possibility of parole. The California Supreme Cou rt responded that:
The penalties prescribed by statute . . . are the ones to be imposed by the trial court upon conviction of murder, and the statutory-8- provisions relating

to such penalties and the ri ght to parole do not purport to limit the gov

ernor’s power to impos e conditions upon a commutation of sentence.

Id . at 39; see also State v. Hunter , 447 A.2d 797 (Me. 1982); Schick v. Reed , 483 F.2d 1266 (D.C. Cir. 1973).

Accordi ngly, we conc

lude tha t the com muted sentence of 2 2 years to life imposed by the Governor was a proper exerci se of his authority under ar ticle III, § 6 of the Tennessee Constitution, ev en if considered an indeterminate t erm that could not have been imposed under the statutes by the judge or jury when the defendant was convicted. It was a lesser sentence in that it provided a mini mum term by which the defendant c ould be released earlier than he would have been had his sentence remained life impr isonment. Yet, at the same time, the defendant was considered in l egal custody until the expiration of the maximum sentence. See State ex rel. Saunders v . Robinson , 190 Tenn. 101, 103, 228 S.W.2d 75 (1950) (a prisoner serving an indetermin ate sentence, even if released on parole, is cons idered in legal custody until the expiration of the maximum sentence). Because a life sentence doe s not expire until a defendant’s death, the defendant was sti ll serving the sent ence when the commutation was revoked b y the Governor in 1974. See Doyle v. Hampton , 207 Tenn. 399, 340 S.W.2d 891 (1960). Therefore, the defendant is not e ntitled to habeas c

orpus r elief.

CONCLUSION We have determined that the commuted sentence of 22 year s to life was a proper exercise of the Gov ernor’s constitutional a uthority, and that the defendant was still serv ing this sentence when the commutation was revok ed by-9- the Governor in 1974. Acc ordingly, the defendant w as not entitled to habeas corpus relief, and the judgment of the Court of Criminal Appeals is affirmed.

Costs of this appeal are tax ed to the appellant, for whic h execution may issue if n ecessary.

_________________________________ E. RILEY ANDERSON, CHIEF JUSTICE

Concur: Drowota, Reid, Birch, and Holder, JJ.