The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 29, 2000
DONNIE FRANKLIN WHEELER, )
Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, ) Appeal No.
) M1999-00569-COA-R3-CV
VS. )
) Davidson Chancery
TENNESSEE DEPARTMENT ) No. 96-2001-II
OF CORRECTION, )
)
Respondent/Appellee. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE CAROL L. McCOY, CHANCELLOR
MICHAEL J. PASSINO
213 Fifth Avenue, North
Nashville, Tennessee 37219
Attorney for Petitioner/Appellant
PAUL G. SUMMERS
Attorney General & Reporter
JOHN R. MILES
c/o Attorney General & Reporter
425 Fifth Avenue North
Nashville, Tennessee 37243-0488
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
A prisoner sentenced to life imprisonment for armed robbery
escaped from custody and subsequently committed two felonies. After he was
recaptured, the Department of Correction declared that he would have to serve
the remainder of his life sentence without parole, in accordance with the
provisions of Tenn. Code. Ann. § 40-28-123(b). The prisoner filed a petition for
a declaratory judgment, arguing among other things that the application of the
statute to his sentence was a violation of the ex-post facto prohibition. The trial
court dismissed the petition. We affirm.
I.
On August 31, 1973, Donnie Wheeler was convicted of armed
robbery by a Marion County jury, and received a life sentence. On October 29,
1973, he was convicted of another armed robbery, and sentenced to ten years, to
be served concurrently with the life sentence. The prisoner was housed first at
the Tennessee State Penitentiary in Nashville, and than at Brushy Mountain State
Prison in East Tennessee. Under the law in effect at the time, he would have
become eligible for parole after serving thirteen years and six months on his life
sentence.
On April 5, 1978, the governor signed into law Public Chapter 794,
now codified as Tenn. Code. Ann. § 40-28-123(b)(1) and (b)(2). The act
provided that any inmate convicted of a felony committed while participating in
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a program of supervised release into the community would have to serve the
remainder of his term without benefit of parole eligibility.
Pursuant to an Institutional Pass Program, Mr. Wheeler was allowed
to attend a Harlem Globetrotters game in Knoxville on November 8, 1978,
accompanied by a prison employee. He used this opportunity to escape from
custody. Shortly thereafter, he was arrested in Washington County, and charged
with two new felonies. While awaiting trial on December 3, 1980, he escaped
from the Washington County Jail.
During this period of escape, Mr. Wheeler left the state and
committed two armed robberies in Cleveland, Ohio, for which he was sentenced
to over ten years in that state’s prisons. In 1981, the prisoner was brought to
Tennessee under the Interstate Agreement on Detainers to stand trial on the two
Washington County felonies, and for escape and attempted escape.
A jury found him guilty of armed robbery and assault with attempt
to commit murder, for which he received sentences of ten years and two to five
years respectively. He pleaded guilty to escape and attempted escape, and was
sentenced to one year for each of those offenses. All the sentences were ordered
to be served consecutively to each other, and to all other sentences previously
imposed. Mr. Wheeler was then returned to Ohio to complete his sentences
there.
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On July 12, 1990, Mr. Wheeler was paroled from his Ohio
sentences, and returned to this state to serve out his Tennessee sentences. The
records of the Department of Correction were updated to reflect that he would
henceforth have no parole eligibility date because of the operation of Tenn.
Code. Ann. § 40-28-123(b)(1) on his felony convictions.
On April 15, 1996, the prisoner filed a petition for a declaratory
order with the Department of Correction, asking that his parole eligibility date
be reinstated. The Department did not respond to the petition, and on July 1,
1996, Mr. Wheeler filed a petition for declaratory judgment in the Chancery
Court of Davidson County. See Tenn. Code. Ann. § 4-5-223.
The State filed a motion for summary judgment on the petition. On
March 19, 1998, the trial court denied the State’s motion, holding that the
application of the 1978 law to petitioner’s 1973 sentence was a violation of the
ex post facto prohibition. An evidentiary hearing was conducted on February 16,
1999, during which Mr. Wheeler appeared and was questioned on direct and
cross-examination. On March 19, 1999 the trial court dismissed the petition.
This appeal followed.
II. The Applicability of Tenn. Code. Ann. § 40-28-123
Mr. Wheeler argues on appeal that Tenn. Code. Ann. § 40-28-123(b)
does not apply to him for two reasons. First, because he was not assigned to any
program that meets the definition found in part (1) of that statute, and second,
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because he had a vested right to serve his life sentence under the conditions in
effect at the time he was sentenced. We will discuss both of these arguments in
turn.
We must first examine the language of Tenn. Code. Ann. § 40-28-
123(b), which reads as follows:
(b)(1) Any prisoner who is convicted in this state of any
felony except escape, and where the felony is committed
while such prisoner is assigned to any work release,
educational release, restitution release or other program
whereby the prisoner enjoys the privilege of supervised
release into the community, including, but not limited to,
participation in any programs authorized by § 41-21-208
or § 41-21-227, the prisoner shall serve the remainder of
the term without benefit of parole eligibility or further
participation in any such programs. The board shall have
the authority to penalize or punish prisoners who escape
from any of the above programs in accordance with board
policy.
(2) As a prerequisite to any inmate's placement in
such a program, the board shall read and provide the
inmate with a copy of subdivision (b)(1). Such inmate
shall then give written acknowledgement of receipt of
such copy and shall signify comprehension of the
provisions contained in it. A permanent file of such
acknowledgements shall be maintained by the board.
Mr. Wheeler argues that his trip to Knoxville was not part of a
program whereby he “enjoy[ed] the privilege of supervised release into the
community.” He first contends that since Tenn. Code. Ann. § 40-28-123(b)(1)
is a penal statute, it must therefore be construed strictly against the State. He
then notes that he was not in work release, educational release, restitution
release, or any programs authorized by Tenn. Code. Ann. §§ 41-21-208 or
41-21-227. He argues that he was merely out of prison for a single day, pursuant
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to a short-lived institutional experiment. Thus, he claims, his subsequent
felonies were not committed under the circumstances that would require
deprivation of parole eligibility under Tenn. Code. Ann. § 40-28-123(b)(1).
We note, however, that the statute clearly states that it is not limited
to the types of programs it names specifically, but also applies to any program
“whereby the prisoner enjoys the privilege of supervised release into the
community.” We believe there can be no doubt that by leaving prison for a
basketball game in the company of a departmental employee, Mr. Wheeler was
enjoying the privilege of supervised release into the community.
Mr. Wheeler cites to us the case of Johnson v. State, App. No. 01-A-
01-9312-CH00535 (Tenn. Ct. App. , April 12, 1995, at Nashville). In that case
this court reversed the Department of Correction’s application of Tenn. Code.
Ann. § 40-28-123(b)(1) to an inmate who had committed felonies while on
escape, because we found he had not been a participant in any of the programs
identified in the statute.
Mr. Johnson had been a trusty at the Nashville Community Service
Center, a minimum security facility housing inmates who were eligible for
programs allowing supervised or unsupervised release into the community.
Although he was eligible for work release, the Department had turned down Mr.
Johnson’s application, and assigned him to work as a janitor within the
institution. We can easily distinguish that case from the present one, because
even though Mr. Johnson was housed in a minimum security facility in the
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company of other inmates who did participate in work release programs, he
himself did not possess or exercise the privilege of release into the community.
Mr. Wheeler contends that his release into the community was not
pursuant to a “program”, as that term in the statute should be properly
understood. But we believe the evidence indicates otherwise. During the
hearing of this case, the State presented the deposition testimony of Stoney Ray
Lane, former warden of Brushy Mountain State Penitentiary. Warden Lane
testified that in 1978, he established an institutional pass program, which he
described as one where, subject to his approval, “an employee could take an
inmate that they knew well enough that they could trust into one of the
communities for any kind of activity, be it a ball game, a movie, a football game,
whatever.”
Mr. Wheeler was released to attend the Globetrotters game pursuant
to that program. Warden Lane testified that the program was a new one, and that
no more than two or three dozen inmates had benefitted from it at the time of Mr.
Wheeler’s flight from custody. After his escape, the warden did not approve any
more individual passes.
The record contains a document that recites the text of Public
Chapter 794, followed by the sentence “[b]y my signature, I acknowledge that
I have read and understood, or have had read to me and do understand, the
provision of Public Chapter 794.” At the bottom of the document is Mr.
Wheeler’s signature, the signature of a witness, Douglas Lowe, and the date
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7/24/78. At trial, Mr. Wheeler testified that he did not remember signing such
a document, but upon examining it, he acknowledged the signature as his own.
The execution of such a document is a statutory requirement for
enrollment in a program of the type discussed in Tenn. Code. Ann. § 40-28-
123(b)(1), and its existence is persuasive evidence that the signatory was a
participant in a program covered by the statute. Therefore the chancery court did
not err in determining “that Petitioner was assigned to a program of supervised
release into the community at the time of his escape and Tenn. Code. Ann. § 40-
28-123 does apply.”
III. Constitutional Questions
Mr. Wheeler contends that he was entitled to serve his sentence
under the law in existence at the time of his sentence, see Tenn. Code. Ann. § 40-
35-117, and that under that law, he was entitled to parole eligibility after serving
thirteen years and six months of his life sentence. He argues that since the
Department applied a statute enacted in 1978 to his 1973 sentence to his
detriment, he is being subjected to an unconstitutional ex post facto law.
He also argues that the Department of Correction has violated the
due process and double jeopardy guarantees of the Tennessee and United States
Constitutions by applying Tenn. Code. Ann. § 40-28-123(b) to him, because it
imposes a substantial additional penalty to either his 1973 life sentence or his
1981 felony sentences.
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We do not agree with any of these arguments. We note at the outset
that there is no constitutionally protected interest in parole, Greenholtz v. Inmates
of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979). Mr.
Wheeler’s interest in parole is confined to the proper application of the parole
statutes. See Wells v. Board of Paroles, 909 S.W.2d 826 (Tenn. Ct. App. 1996).
We also note that the Founding Fathers found ex post facto laws to
be repugnant not least because such laws do not furnish individuals with fair
notice of the penalties which may result from their actions. That is not the
situation before us.
The Department directs our attention to the reasoning in the case of
State ex rel York v. Russell, 176 S.W.2d 820 (1944), which is highly relevant here.
Mr. York was convicted of robbery in 1935, and received a sentence of “not less
than “five and not more than ten years in the State penitentiary.” In 1937, the
legislature enacted a statute that provided that if a prisoner was convicted of
committing a felony while on parole, he would have to serve the remainder of the
maximum term of the sentence he was paroled from, before beginning to serve his
sentence on the new felony. The current version of that statute is now found in
our Code as Tenn. Code. Ann. § 40-28-123(a).
Mr. York was paroled in December of 1938. He was convicted of
petit larceny in 1940, and received a one-to-five year sentence. He appealed the
efforts of the state to apply the 1937 statute to him, arguing that it violated his
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right against the application of ex post facto laws. The Supreme Court analyzed
Mr. York’s claim thusly:
“[T]he incidence of the legislative act is not upon the
conviction of 1935, but upon the parole of 1938, when the
legislation was in full force and effect. When petitioner
accepted his parole in 1938, and he might have refused it,
he accepted it under all the legislative conditions then in
force, and he must be presumed to have known them.”
Similarly, the imposition of Tenn. Code. Ann. § 40-28-123(b) is on
Mr. Wheeler’s 1978 escape and subsequent felony convictions. If he had not
committed those crimes, his parole eligibility date would have remained as it was
when he was sentenced in 1973.
Tenn. Code. Ann. § 40-28-123(b) was in full force and effect when
Mr. Wheeler was allowed supervised release into the community. He could have
refused that release, but he accepted it, and there is evidence that he did so with
knowledge of the consequences that could possibly follow if he escaped and
committed subsequent crimes. He is not being penalized because the legislature
has decided to increase the quantum of punishment for a previously committed
crime (such an enactment would meet the definition of an ex post facto law).
Rather, the penalties specified in Tenn. Code. Ann. § 40-28-123(b) are being
imposed for a valid conviction of acts committed subsequent to the enactment of
the statute.
For the same reason, the double jeopardy argument is also
unavailing for Mr. Wheeler. He was validly convicted in 1973, and received a
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life sentence. The elimination of parole eligibility does not add to that sentence.
It is, rather, an additional consequence of his 1981 convictions.
IV.
The judgment of the trial court is affirmed. Remand this cause to
the Chancery Court of Davidson County for further proceedings consistent with
this opinion. Tax the costs on appeal to the appellant, Donnie Franklin Wheeler.
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
____________________________
WILLIAM C. KOCH, JR., JUDGE
____________________________
WILLIAM B. CAIN, JUDGE
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