LeMay v. TDOC

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 26, 2000 Session

JAMES A. LEMAY v. STATE OF TENNESSEE, DEPARTMENT OF

CORRECTION

Appeal by Permission from the Court of Appeals, Middle Section

Chancery Court for Davidson County

No. 96-3076-II Carol L. McCoy, Chancellor

No. M1998-00317-SC-R11-CV - Filed October 5, 2000

We granted this appeal to determine whether the Governor has the authority to revoke a conditional

commutation during the term of the commuted sentence only, or whether the commutation may be

revoked during the term of the original sentence. We conclude that the Governor has the authority

to revoke a conditional commutation during the term of the original sentence. We therefore hold that

the Governor’s revocation of the prisoner’s commutation after the expiration of the commutated

sentence but before the expiration of the original sentence was valid, and affirm the judgment of the

Court of Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Affirmed.

E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which FRANK F. DROWOTA, III,

ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

Robert J. Mendes, Nashville, Tennessee, for the appellant, James A. LeMay.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Gordon

W. Smith, Associate Solicitor General, for the appellee, State of Tennessee, Department of

Correction.

OPINION

Background

In 1969, James A. LeMay was convicted of first degree murder in the Circuit Court for Lewis

County and received a ninety-nine-year prison sentence. On January 15, 1979, Governor Ray

Blanton signed a commutation reducing the sentence to thirty years. However, on January 22, 1979,

the commutation was physically withdrawn from LeMay’s Department of Correction file and

returned to the office of newly-inaugurated Governor Lamar Alexander. On February 21, 1979,

Governor Alexander issued a similar commutation for LeMay. Both Governor Blanton’s and

Governor Alexander’s commutation contained the following language:

This commutation is granted conditioned that the

aforesaid prisoner obey all the rules and regulations of

the authority having custody of him, lead the life of a

good citizen, obey all the laws of the Nation, States,

and Municipalities and shall not be guilty of other

conduct, in the opinion of the Governor, improper and

illegal. In the event any of the foregoing conditions

are violated, the Governor, at his option (or on the

recommendation of the State Board of Pardons,

Paroles and Probation) may issue a warrant for the

arrest and return of said prisoner to the Warden of the

State Penitentiary to undergo [the] remainder of said

original or commuted sentence, as determined by the

Governor. The Governor shall be sole judge as to

whether or not any of the aforesaid conditions have

been violated, and there shall be no review of his

action thereon by any Court whatsoever.

While on work release and employed by the state comptroller’s office, LeMay participated

in a scheme whereby $20,000 was transferred from the state treasury to a local bank account for his

personal use. In May 1979, LeMay escaped from custody while on work release.

LeMay was returned to custody on December 5, 1979 and, after pleading guilty, was

sentenced to five concurrent three-year sentences for obtaining property under false pretenses and

to a one-year sentence for escape. All of the convictions were ordered to run consecutive to the

sentence for the murder conviction. On November 24, 1980, Governor Alexander revoked LeMay’s

February 21, 1979 commutation.

In May 1996, LeMay petitioned the Department of Correction for a declaratory order that he

was entitled to immediate release. He asserted that Governor Blanton’s commutation was never

revoked and that the thirty-year commuted sentence had expired. The Department refused to issue

a declaratory order.

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On October 2, 1996, LeMay filed a petition for declaratory judgment in the Chancery Court

for Davidson County. In an interlocutory order, the trial court held that Governor Alexander’s

revocation in November 1980 served only to revoke his own commutation and not the commutation

issued by Governor Blanton. The commuted sentence of thirty years issued by Governor Blanton

was still in effect. Apparently this order prompted Governor Don Sundquist to issue his own order

revoking the Blanton commutation on December 15, 1997.

The record reflects that after applying all applicable sentencing credits, the commuted thirty-

year sentence and the three-year sentence for the additional crimes would have expired on

January 16, 1986. The original sentence of ninety-nine years would not expire until May 22, 2014.

The chancery court entered a declaratory judgment finding that the attempted revocation by

Governor Sundquist occurring after the expiration of the commuted sentence was void. The Court

of Appeals reversed the judgment, holding that a conditional commutation of a prison sentence may

be revoked at any time during the original sentence. We granted LeMay’s application for permission

to appeal to resolve the issue of when a conditional commutation may be revoked.

Analysis

In order to resolve the ultimate question of when a conditional commutation may be revoked,

we first examine the Governor’s authority to commute sentences.

Article III, Section 6 of the Tennessee Constitution provides that the Governor “shall have

the power to grant reprieves and pardons, after conviction, except in cases of impeachment.” See

also Tenn. Code Ann. § 40-27-101 (1997). The constitutional power to grant reprieves and pardons

includes the right to commute a sentence, i.e., impose a lessor or shorter sentence from the sentence

imposed following the prisoner’s conviction. Carroll v. Raney, 953 S.W.2d 657, 659 (Tenn. 1997);

Bowen v. State, 488 S.W.2d 373, 375-76 (Tenn. 1972). In effect, the commuted sentence replaces

the sentence imposed by the original judgment. Carroll, 953 S.W.2d at 659; Bowen, 488 S.W.2d

at 375-76.

The Governor’s authority to commute a sentence is limited only by the language of the

Constitution and neither the legislature nor the courts may regulate or control the Governor’s power

to commute a sentence. Carroll, 953 S.W.2d at 659-60 (citing State ex rel. Bedford v. McCorkle,

163 Tenn. 101, 40 S.W.2d 1015, 1016 (1931)); State ex rel. Rowe v. Connors, 166 Tenn. 393, 61

S.W.2d 471, 472 (1933); Ricks v. State, 882 S.W.2d 387, 391 (Tenn. Crim. App. 1994). Moreover,

the Governor has the authority to attach conditions or restrictions to a commuted sentence that are

reasonable, legal, and possible for the prisoner to perform. Carroll, 953 S.W.2d at 660. The

Governor has the concomitant power to revoke a commuted sentence upon a finding that a condition

has been violated. Id.

In this case, LeMay’s thirty-year commuted sentence and the consecutive three-year sentence

expired on January 16, 1986. Governor Sundquist’s revocation of commutation was issued after that

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date, but before the expiration of the term of the original ninety-nine-year sentence. Accordingly,

the issue presented in this case is whether the Governor has the authority to revoke a commutation

within the term of the original sentence, but after the expiration of the commuted sentence.

To determine this issue, we look next to existing case law in Tennessee. In White v. State,

717 S.W.2d 309 (Tenn. Crim. App. 1986), our intermediate court addressed a factual situation very

similar to this case. In that case, White’s original ninety-nine-year sentence was commuted by the

Governor to “time served.” Id. The commutation language contained conditions similar to LeMay’s.

Id. at 310. White was later convicted of another crime, and the Governor revoked the commutation

before the end of the original ninety-nine-year sentence. Id. at 309. White argued that the revocation

was invalid because the Governor could not revoke the commutation after expiration of the

commuted sentence, reasoning that the commuted sentence was substituted for the original sentence

and was the sentence that was actually in existence. Id. at 310. The Court of Criminal Appeals

rejected this argument, holding that the Governor’s power to revoke does not end until expiration

of the original sentence. Id.

Thus, when presented with the precise factual situation involved in this case, the Court of

Criminal Appeals has held that the Governor’s power to commute extends through the term of the

original sentence. See White v. State, 717 S.W.2d at 310. The Court of Criminal Appeals has never

held that the Governor’s power to commute expires at the end of the term of the commuted sentence.

Cf. Rowell v. Dutton, 688 S.W.2d 474 (Tenn. Crim. App. 1985) (no authority to revoke commuted

sentence after the expiration of the original sentence).

Despite this intermediate court decision, LeMay argues first that because the commuted

sentence is substituted for the original sentence, it is the only one in existence and the only one to

be considered. LeMay also contends that the Governor could extend the application of a condition

beyond the term of the commuted sentence, so long as the commutation clearly indicated that intent.

He asserts that the commutation in this case does not contain such language, and the conditions could

not be enforced against him.

Similarly, LeMay also relies upon a sentence from our decision in Carroll v. Raney, in which

the prisoner had received a commutation commuting his sentence from life to “22 years to life.” 953

S.W.2d at 659. We specifically found that the commutation at issue did not contain an express

condition, yet held that the Governor had the authority to revoke the commutation during the

prisoner’s life because the original sentence had not expired, since its maximum term was life. Id.

at 660-61. We remarked that “[u]pon a finding that a condition has been violated, the commuted

sentence may be revoked by the Governor, provided that the sentence has not expired.” Id. at 660

(citing Rowell v. Dutton, 688 S.W.2d at 477).

We conclude that LeMay’s arguments and his reliance on our decision in Carroll are

misplaced. To the extent that the language in Carroll is ambiguous, our citation to Rowell, where the

original sentence had expired, supports our conclusion that the Governor retains the authority to

revoke a commutation during the term of the original sentence. Rowell, 688 S.W.2d at 477.

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In addition, we conclude that the commutation contains language specifically authorizing the

Governor to reinstate the original sentence if LeMay violated the conditions of the commutation.

The commutation states that if “any of the foregoing conditions are violated, the Governor . . . may

issue a warrant for the arrest and return of [LeMay] to the Warden of the State Penitentiary to

undergo [the] remainder of said original or commuted sentence as determined by the Governor.”

When this language is construed in accordance with the constitutional authority provided solely to

the Governor to grant reprieves and pardons, it follows that the Governor possesses the authority to

revoke the commutation after the expiration of the commuted sentence, but before expiration of the

original sentence.

Finally, we hold that the Governor’s authority to revoke a conditional commutation remains

in effect during the term of the original sentence. If the Governor had no authority to revoke a

conditional commutation after expiration of the commuted sentence, then in many instances the

conditions imposed would be meaningless. For instance, when the Governor grants a conditional

commutation to “time served” no portion of the commuted sentence remains for the prisoner to

serve. Therefore, unless the Governor retains the power to revoke during the term of the original

sentence, the conditions are in effect meaningless.

Conclusion

We conclude that LeMay breached the conditions of his commutation when he committed

the felonies of obtaining property under false pretenses and escape. The conditional commutation

was subject to revocation up to the expiration of the original ninety-nine-year sentence. Since

LeMay’s ninety-nine-year sentence had not expired at the time of Governor Sundquist’s revocation

on December 15, 1997, the revocation was valid. The judgment of the Court of Appeals is affirmed.

Costs are assessed against the appellant, James A. LeMay.

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E. RILEY ANDERSON, CHIEF JUSTICE

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