McKinley Brown v. TN Dept. of Correction

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 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 reduction credits. The inmate 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the Class X Felony Act was repealed in 1989, prior sentence reduction credit schemes were revived,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 credits. The inmate appeals the dismissal of his

complaint seeking declaratory relief and damages. 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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,

and WILLIAM C. KOCH , JR., J., joined.

McKinley Brown, Pro Se, Pikeville, Tennessee, appellant.

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

Tennessee Department of Correction and the Tennessee Attorney General.

OPINION

In this appeal, McKinley Brown, a pro se inmate incarcerated at the Southeastern Tennessee

State Regional Correctional Facility, challenges the Department of Correction’s calculation of his

sentence reduction credits. He does not claim an error in math, but instead asserts that various

statutes entitle him to earn credits cumulatively or retroactively. The opportunity for an inmate to

earn credits toward reducing his sentence derives exclusively from statute. Eligibility for such

credits is determined solely from the statutes themselves. 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). Thus, our analysis of Mr. Brown’s claims must begin with the relevant statutes.

When Mr. Brown was convicted of aggravated rape on November 12, 1981, he received a

thirty (30) year sentence as a Class X felon. Because he was given 246 days of pretrial jail credit,

the effective date of his sentence 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 sentencing, aggravated rape was a Class X felony.

At that time, individuals convicted of such offenses were not entitled to any form of credits to

reduce their sentences. Tenn. Code Ann. § 39-1-703(2) (Supp. 1980) [repealed]; 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 effective July 1, 1983. In pertinent part,

Section 3 of Chapter 400 stated:

Notwithstanding the provisions of this chapter to the contrary, a person convicted of

a Class X felony shall be eligible to receive prisoner performance sentence credits as

provided in Tenn. Code Ann. § 41-21-230 to reduce the expiration date of such

person’s sentence. The provisions of this subsection shall not affect the release

classification eligibility date of Class X offenders.

Tenn. Code Ann. § 40-28-301(i) (Supp. 1983) [repealed]. Under the 1983 amendments, Class X

felons could earn prisoner performance sentence credits affecting their sentence expiration dates, but

not their parole eligibility dates, by participating in prison programs. Tenn. Code Ann. § 40-28-

301(i) [repealed]; 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, 1999) (no Tenn. R.

App. P. 11 application filed). Mr. Brown earned ten days of performance sentence credits 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 release 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 committed a felony, including any Class X felony, prior to

December 11, 1985 may become eligible for the sentence reduction credits

authorized by this section by signing a written waiver waiving the right to serve the

sentence under the law in effect at the time the crime was committed. However,

sentence reduction credits authorized 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 Department was

authorized to continue the previously enacted sentence credit system on behalf of inmates who chose

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not to sign the waiver. Tenn. Code Ann. § 41-21-236(f) (Supp. 1985) (now codified in subsection

(g)). Hensley v. Dep’t of Correction, 1999 WL 141065 at *1. Mr. Brown signed the waiver on

March 1, 1986. He has since earned credits and does not in this action dispute the Department’s

calculation of those credits.

As part of this 1985 enactment the legislature repealed those statutes creating prior systems

for prisoner credits. Specifically included in this repeal 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. While the Department was authorized to continue to implement the prior systems for those

prisoners who chose to be so treated, the old system was not to be applied prospectively 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 et seq. (the Class X Felony Act) was repealed and

replaced by the Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-101, et seq. Butler v.

Tennessee Dep’t of Correction, No. 01A01-9804-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 effect 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 created by the “revived” statutes, even though

he was ineligible for them at the time they existed.

Mr. Brown’s theory that the repeal of 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 notwithstanding 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

omitted, the parts omitted are not to be revived by construction, but are to be considered as

annulled.” Zickler v. Union Bank & Trust 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 statutory provisions address the 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 statues on sentence reduction credits, which continuously

governed that area of the law, were never found to be unconstitutional, a fact which is fatal to Mr.

Brown’s argument. Therefore, the earlier sentence credits statute were not revived.

1

For an explanation of the various types o f sentence credits, see Jones v. Reynolds, 1997 WL 367661 at *3-4.

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As the second part of his argument, Mr. Brown asserts that the repeal of Class X Felony Act

made him retroactively eligible for those credits that were available to others from his sentencing

until he signed his waiver.

Mr. Brown 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-the-

board” 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 Assembly 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 system to prisoners who committed crimes prior to July 1,

1981.” Id. at *3.

This language has been relied upon by other prisoners 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 sentence credit program embodied in T.C.A. §

41-21-229 and -231 was “envisioned” by the General Assembly to “apply across-the-

board to all prisoners,” the Court was merely explaining why there was no need to

have a specific opt-in provision to make these statutory provisions applicable to

prisoners who were sentenced prior to the effective date of the new good conduct

credit program.

Northcott, 1999 WL 1072572 at *4.

This same reasoning applies to Mr. Brown’s arguments. Jones cannot be read to imply that

Class X felons were eligible for the credits during the time they were specifically excluded from

credits or limited to specific type 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. § 41-21-230, 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 earing credits. See Tomlinson, 1999 WL 270383 at *4. From the point when Mr.

Brown opted to cease accumulating credits under § 41-21-230 by signing the waiver, he was eligible

2

W e 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 Correction, No. 01A01-9801-CH-00014, 1999 WL

5084 at *5 (Tenn. Ct. App. Jan. 7, 1999) (perm. app. denied June 21, 1999). Thus, Mr. Brown was never entitled to earn

credits under that section.

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to receive sentence reduction credits 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 providing that the inmate will be entitled to accrue sentence reduction credits

under the new statutes 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 sentence credits under the prior statutes, the option of electing to

continue to accrue sentence reduction credits under that statute.

Crowder v. Dep’t of Correction, No. 01A01-9203-CH-00105, 1992 WL 207761 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 should be applied retroactively, such claims must also fail. This court addressed

the issue whether prisoners were entitled to retroactive application of sentence reduction credits in

Henderson v. Lutche, 938 S.W.2d 428 (Tenn. Ct. App. 1996) (analyzing the retroactivity of Tenn.

Code Ann. § 41-21-236). In that case the court stated:

Despite petitioner’s argument that the Department should apply the statue

retrospectively, there is a presumption that courts are to apply statutes prospectively

unless there is a specific statutory directive requiring courts to apply them

retrospectively. Our supreme court has stated “[i]n the absence of legislative intent

or a necessary inference that a statute is to have retroactive force, an act of the

legislature is to be given prospective effect only by the courts.” Electric Power Bd.

v. Woods, 558 S.W.2d 821, 825 (Tenn. 1977). Courts must apply a statute

prospectively in the absence of ‘“the most clear and unequivocal expression’” to the

contrary. 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 and there is nothing in the statute from which we can infer that the

General Assembly intended it apply retroactively. See Henderson, 938 S.W.2d at 430. Accordingly,

there can be no retroactive application of these statutes.

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 sentence reduction credits under the prior statutes because of the 1989 repeal of Class X

Felony Act. As stated previously, the repeal of the Act did not revive the prior sentencing credit

reduction statutes. Because Mr. Brown was not entitled to any additional sentence reduction credits

based on 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 available to him. This fact

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distinguishes Crowder, 1992 WL 207761 at *3, on which Mr. Brown relies. See Wilson v. Tennessee

Dep’t of Correction, No. 01A01-9806-CH-00302, 1999 WL 652016 at *3 (Tenn. Ct. App. Aug. 27,

1999) (no Tenn. R. App. P. 11 application filed); compare Crowder, 1992 WL 207761 at *3.

To conclude, the judgment of the trial court is affirmed and the cause remanded for such

further proceedings, if any, as may be required consistent with this opinion. Costs on appeal are

taxed against Mr. Brown for which execution may issue if necessary.

____________________________________

PATRICIA J. COTTRELL, JUDGE

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