Greene v. TN. Dept of Correction

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

FILED July 10, 1998 JOHNNY GREENE, ) ) Cecil W. Crowson Plaintiff/Appellant, ) Appellate Court Clerk ) Davidson Chancery VS. ) No. 94-927-I ) TENNESSEE DEPARTMENT OF ) Appeal No. CORRECTION, ) 01A01-9608-CH-00370 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For Plaintiff/Appellant: For Defendant/Appellee:

Douglas A. Trant John Knox Walkup Knoxville, Tennessee Attorney General and Reporter

Patricia C. Kussmann Assistant Attorney General

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves a dispute between a prisoner and the Department of Correction concerning the Department’s calculation of his sentence reduction credits. After spending twenty-three years in prison, the prisoner sought a declaratory order from the Department that he had ea rned sufficie nt sentence reduction c redits to be entitled to immediate release. When the Department declined to issue the requested order, the prisoner filed a petition for judicial review in th e Chanc ery Cou rt for David son Cou nty. Both th e prisoner and the Department filed summary judgment motions, and the trial court granted the Departme nt’s motion and dismissed the prisoner’s petition. On this appeal, the prisoner asserts that the trial court erred beca use, under the undisp uted facts, he is entitled to a judgment as a matter of law. W e have de termined that the trial cou rt’s decision to grant the Departm ent’s summary judgme nt motion should be affirmed b ecause the prisoner ha s failed to dem onstrate that he is entitled to relief on any of his claims.

I.

Johnny Greene went to trial before a Davidson County jury in 1971 on the charge of first degree murder. On February 3, 1971, after the State had rested its case and h e himself had testified, Mr. G reene dec ided to plea d guilty to first degree murder, and th e jury sentenced him to serve ninety-nine years in the state penitentiary. Mr. Greene has collaterally attacked his conviction on two occasions without success.1

In January 1994, a lawyer representing Mr. Greene corresponded with the Department of Correction asserting that his client was eligible for immediate release because he had been earning sentence credits at the rate of 49.5 days per month under the th ree sentenc e credit programs instituted since Mr. Gre ene’s origin al incarceration. After the Department responded that Mr. G reene wa s not entitled to receive double credits under these successive sentence reduction programs, Mr. Greene filed a petition for a declaratory order in F ebruary 1994 again asserting that he was entitled to immediate release . The Departm ent declined Mr. Greene’s request for a d eclaratory order.

On March 31, 1994, Mr. Greene filed a petition in the Chancery Court for Davidson County seeking judicial review of the D epartment’s denial of his req uest for a declaratory

1 See Greene v. State, No. 88-217-III, 1989 WL 4941 (Tenn. Crim. App. Jan. 24, 1989), perm. app. denied (Tenn. June 5, 1989); Greene v. State, No. 6282 (Tenn. Crim. App. Feb.29, 1972), cert. denied (Tenn. June 5, 1972).

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order under Tenn. Code Ann. § 4-5-322 (Supp. 1997). Mr. Greene later filed a motion for summary judgment, and the Departm ent respon ded with a summ ary judgm ent motio n of its own. On M ay 6, 1996 , the trial court granted the Departm ent’s motion for sum mary judgment and dismissed Mr. Greene’s petition. Mr. Greene has appealed.

II.

As a preliminary matter, we address the type of relief Mr. Greene requested from the trial court. Even though the Department had not condu cted a con tested case p roceeding in response to his request for a declaratory order, Mr. Greene filed a petition for review under Tenn. Code Ann. § 4-5-322 which, by its own terms, is available only to persons who are “aggrieved by a fin al decisi on in a c onteste d case.” See Tenn. Code Ann. § 4-5-322(a). M r. Greene should have filed a petition for a declaratory judgment under Tenn. Code Ann. § 4-5- 225 (Supp. 1997) be cause the Depa rtment had refused h is request for a declaratory order. See Tenn . Code Ann. § 4-5-22 5(b).

The fact that Mr. Greene has pursued the wrong remedy is not necessary fatal to his request for judicial relief. B ecause the courts endeavo r to construe pleadings b ased on th eir substance or grav amen rather th an their t itle, see Bemis Co. v. Hines, 585 S.W.2d 574, 576 (Tenn. 1979); see also Para v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984) (applying the rule for statute of limitations pu rposes), the trial c ourt could have construed M r. Greene’s petition as one seeking a declaratory judgment under Tenn. Code Ann. § 4-5-225. The trial court’s judgme nt indicates th at it may ve ry well hav e treated Mr. Greene’s petition as one requesting a declaratory judgme nt, and w e will do likewis e on this appea l. Thus, Mr. Greene will be entitled to re lief only if he c an dem onstrate that the Department’s interpretation of a statute or rule interferes with or impairs, or threatens to interfere with or impair, his legal rights or privileg es. See Tenn . Code Ann. § 4-5-22 5(a).

III.

Mr. Greene’ s disagreem ent with the Department’s calculation of his sentence reduction credits can be distilled into three argum ents. First, he ass erts he is entitled to both the good conduct sentence credits authorized by Tenn. Code Ann. § 41-21-229 (repealed 1985) and the previously authorized “good and ho nor tim e” cred its. Second, he argues that recalculating his anticipated good conduct sentence credits after July 1, 1981 violates the Due Process Clauses and the Ex Post F acto Clauses of the state and federal constitutions. Third, he asserts that the Department has not accounted for the 3,277 days of good and honor time he earned between August 28, 1970 an d July 1, 19 81. Each of these claim s is without m erit.

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T HE C UMULATIVE C REDIT C LAIM

Mr. Greene first asserts that, as a matter of statutory construction, he is entitled to bo th the good and honor time credits available when he was first incarcerated and to the good conduct sentence credits authorized by the General Assembly in 1980. We have already addressed this claim and have found that the good conduct sentence credits authorized by Tenn. Code Ann. § 41-21-2 29 com pletely replac ed the prev iously existing good and honor time credits and th at these goo d condu ct sentence credits wo uld apply a cross-the-bo ard to all prisone rs. See Jones v. Reynolds, No. 01A01-9510-CH-00484, 1997 WL 367661, at *3 (Tenn. Ct. App. July 2, 1997) (No Tenn. R. App. P. 11 application filed). Accordingly, these statutes, when read in p ari materia, provide that Mr. Greene is entitled to the good and honor time he earned betw een August 28 , 1970 and July 1, 19 81 and to earn good conduct sentence credits under Tenn. C ode Ann. § 4 1-21-229 thereafter. 2

T HE C ONSTITUTIONAL C LAIMS

Mr. Greene’s second argument is that the Department’s recalculation in July 1981 of his projected good conduct sentence credits increased his punishment and thereby violated the Due Pro cess Clau ses and E x Post Fac to Clauses of the state an d federal co nstitutions. This argument contains two fundamental flaws. First, prisoners do not earn good conduct sentence credits in advance. Second, the application of Tenn. Code Ann. § 41-21-229 to M r. Greene after July 1, 1981 does not increase his punishment or lengthen his sentence.

The Ex Post Facto Clauses of the United States Constitution3 and the Constitution of Tennessee4 are aimed at laws that retroactively increase the punishment for criminal acts. See Lynce v. M athis, 519 U.S. 433, __ _, 117 S. C t. 891, 896 (1 997); California Dep’t of Corrections v. Morales, 514 U.S. 499, 504 , 115 S. Ct. 1597, 160 1 (1995); State v. Ricci, 914 S.W.2d 475, 480 (Tenn. 1996). They prevent legislatures from increasing criminal penalties beyond those prescribed for a crime when it was c omm itted. Because the sentence reduction credit statutes in existence when M r. Greene com mitted his crime w ere inherently p art of his sentence, see Gilliam v. State , 174 Tenn. 388, 391, 126 S.W.2d 305, 306 (1939), the application of any later enacted sentence credit statutes that reduce the amount of sentence credits Mr. Greene c an earn could run afoul o f the Ex Post Facto Clauses of the state and

2 Mr. Greene is not entitled to earn prisoner sentence reduction credits under Tenn. Code Ann. § 41-21-236 (1997) because he has not signed the written waiver required by Tenn. Code Ann. § 41- 21-236(c)(3), -236(g). 3 See U.S. Const. art. I, § 10, cl. 1. 4 See Tenn. Const. art. I, § 11.

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federal constitutions if it has the effect of imposing a greater punishment after the commission of the o ffense. See Weaver v. Graham, 450 U.S. 24, 36, 101 S. Ct. 960, 968 (1981).

The undisputed facts in this record demonstrate that applying the good conduct sentence credits in Te nn. Code Ann. § 4 1-21-229 to Mr. G reene for the portion of h is sentence served after July 1, 1981 decreases rather than in creases the p otential length of his incarceration. Under the good and honor time scheme in place when M r. Greene was first incarcerated, the presum ptive expira tion date of h is sentence w ould have been sometime in 2020.5 Howe ver, the presu mptive ex piration date of his sentence calculated in accordance with Tenn. Code Ann. § 41-21-229 is May 17, 2019. Because the operation of Tenn. Code Ann. § 41-21-229 decreases rather than increases the length of Mr. Greene’s sentence, placing Mr. Greene under Tenn. Code Ann. § 41-21-229 does not amoun t to an ex po st facto violatio n. See Jones v. Reynolds, 1997 W L 367 661, at * 6.

Mr. Greene also argues that the Department cannot constitutionally deprive him of the prospective good and honor time credits that the Department projected he could earn when the presumptive expiration date of his sentence was first calculated in 1971. He asserts that he had a pro perty right to th ese credits and that once they were awarded to him, they cannot be taken away without cause. This argument overlooks the reality that Mr. Greene had not earned approximately fifty years of sentence credits when the Department first projected the presumptive expiration d ate of his sen tence in 1971. The Department’s calculation at that time was simply a projection based on the assumption that Mr. Greene would earn these credits while inca rcerated by compo rting himse lf as required by Tenn. Code Ann. §§ 41-21- 212, -214 (repealed 1985). Therefore, on July 1, 1981, Mr. Greene had a pro perty interest only in the good and honor time credits he had earned from August 28, 1970 until July 1, 1981; he did not have a property interest in the credits that the Department projected he might earn during the remain ing yea rs of his in carcera tion. Since Mr. Greene did not have a property in terest in the cred its he migh t have earn ed after July 1 , 1981, the D epartme nt did not violate the Due Process Clauses of the state and federal constitutions by switching to Tenn. Code Ann. § 41-21-229 to calculate these future sentence credits.

T HE E ARNED S ENTENCE C REDIT C LAIM

5 Mr. Greene argues that this date would have been August 28, 2021. We need not resolve the discrepancy between Mr. Greene’s calculation of the original presumptive expiration date of his sentence and the Department’s calculation because both dates are later than the presumptive expiration date calculated according to Tenn. Code Ann. § 41-21-229.

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As a final matter, Mr. Greene insists that the Department has not properly accounted for the 3,722 days of good and honor time that he earned between August 28, 1970 and July 1, 1981. The undisputed evidence is to the contrary. The Department has included these sentence credits in its calculation of the new p resumptive expiration d ate of Mr. Green e’s senten ce.

The 1980 legislation creating the good conduct sentence credits to replace the good and honor time credits contained a mechanism for conve rting good and hon or time cred its earned prior to July 1, 1981 to good condu ct senten ce cred its. See Tenn. Code Ann. § 41-21- 231 (repealed 1985). On August 29, 1981, Mr. Greene received a memorandum from the Commissioner of Correction informing him that he had been given full credit for the 3,722 days of good and honor time he had earned prior to July 1, 1981 and that these days, when added to the “possible good time” he could earn after July 1, 1981, would reduce his sentence by 17,718 d ays or app roximate ly 48.5 years . These cre dits advanced the expiration date of Mr. Greene’ s sentence f rom 20 69 to May 17, 2019. This memorandum provides unrebutted evidence that the Department has given Mr. Greene full credit in accordance with Tenn. Code Ann. § 41-21-231 for the 3,722 days of good and honor time he earned prior to July 1, 1981.

IV.

Mr. Greene has failed to present evidence that he has b een adve rsely affected by the Departmen t’s erroneous or unconstitutional interpre tation or app lication of any statute or rule governing the accumulation and calculation of the sentence credits to which he is entitled. Accordingly, treating his petition as a petition for declaratory judgment under Tenn. Code Ann. § 4-5-225, we find that the trial court reached the correct result wh en it dismissed M r. Greene’ s petition. W e reman d this case to the trial court for whatever further proceedings may be required , and we ta x the costs o f this appeal to Johnny G reene and his surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

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___________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

___________________________________ BEN H. CANTRELL, JUDGE

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