The opinion
HARRY LEE WARD, )
)
Plaintiff/Appellant, )
)
Appeal No. FILED
01-A-01-9807-CH-00350
v. ) July 16, 1999
) Davidson Chancery
DONAL CAMPBELL, ) No. 98-1176-I Cecil Crowson, Jr.
) Appellate Court Clerk
Defendant/Appellee. )
COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY,
TENNESSEE, AT NASHVILLE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
HARRY LEE WARD, Pro Se
TCIP, Route 1
Only, Tennessee 37140
PAUL G. SUMMERS
Attorney General & Reporter
MICHAEL E. MOORE
Solicitor General
STEPHANIE R. REEVERS
Civil Rights and Claims Division
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, Tennessee 37243-0488
ATTORNEYS FOR APPELLEE
AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE
OPINION
This case involves a constitutional challenge to the application of a
certain policy of the Tennessee Department of Correction ("the Department").
The petitioner, an inmate in the Department, filed this declaratory action asking
the court to declare unconstitutional one of the Department's disciplinary
policies, Policy 502.02, as it applied to him. This policy, which was enacted
after the petitioner was initially sentenced, provides for an extension of the date
of an inmate's parole eligibility as a punishment for the inmate's commission of
a disciplinary offense while in prison. The trial court granted a rule 12 motion
dismissing the petitioner's action for its failure to state a claim upon which relief
could be granted. We affirm the trial court's decision.
II.
The petitioner/appellant in this action is Harry Ward who is currently an
inmate in the custody of the Tennessee Department of Correction. In 1981, Mr.
Ward was convicted of four counts of armed robbery with a deadly weapon as
well as a count of petit larceny for which he received a sentence of 30 years in
prison. Additionally, Mr. Ward was adjudicated a habitual criminal and was
sentenced to life in prison. The effective date of Mr. Ward's sentence for the
robbery convictions was January 21, 1981 and for the life sentence was February
1, 1983.
While imprisoned, Mr. Ward committed institutional disciplinary offenses
by assaulting two officers on two different occasions. After the first of these in
1993, the Department Disciplinary Board punished Mr. Ward by extending his
parole release eligibility date. The Board increased the proportion of the
sentence that Mr. Ward must serve before becoming eligible for parole from
35% to 65% which effected an increase in his release eligibility date (RED)
from the years 2010 to 2040. Again in June of 1994, disciplinary charges were
pressed against Mr. Ward for the assault of another staff member. As a result,
the proportion of his sentence that must be served before he could be eligible for
parole increased from 65% to 95% and his RED increased from 2040 to 2070.
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It is Mr. Ward's position that the Department was wrong in increasing the
proportion of his mandatory sentence in these two instances. The Department
implemented this punishment for Mr. Ward's disciplinary offenses pursuant to
its Policy 502.02 which was not in effect at the time that his initial crimes were
committed in 1981. Mr. Ward claims that the imposition of this policy against
him amounts to a violation of the ex post facto clauses of the state and federal
constitutions and the due process clause of the Fourteenth Amendment. He
argues that he may not receive a greater punishment than he would have
received under the prior law.
The Department of Correction denied Mr. Ward's pro se request for a
declaratory order finding that his contentions regarding this disciplinary action
were erroneous and without merit. The Department stated that the fact that Mr.
Ward was convicted of a felony in 1981 was irrelevant. Departmental policy
regarding the consequences of disciplinary hearings was in effect in sufficient
time, since February of 1989, for him to be aware of the penalty for improper
actions on his part such that there was no ex post facto violation. Further, there
was no due process violation since he was found guilty in a proper disciplinary
hearing with all due process provisions in place. Finally, the Department stated
that because Mr. Ward's request was for action on a policy matter, it was not
subject to a declaratory order pursuant to Tenn. Code Ann. § 4-5-102(10)(A)
(1991).
In the trial court, the state filed a motion for a Rule 12.02(6) dismissal for
Mr. Ward's failure to state a claim for relief. The trial court granted said motion
reasoning as follows:
At the time of the petitioner's crime and conviction, release
eligibility for Class X felons was governed by Tenn. Code Ann. §
40-28-301, which provided in part:
(h)(1) The release [classification] eligibility date provided
for in this section shall be the earliest date a person
convicted of a Class X felony shall be eligible for release
classification status, such date being conditioned on the
prisoner's good behavior while in prison. For a violation
of any of the rules of the department of correction or the
institution in which the person is incarcerated the
commissioner of correction or his designees, may defer
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the release classification eligibility date so as to increase
the total amount of time a person must serve before
becoming eligible for release classification status. This
increase may, in the discretion of the commissioner, be in
any amount not to exceed the full sentence originally
imposed by the court and shall be imposed pursuant to
regulations promulgated by the commissioner of
correction.
The petitioner had notice that, pursuant to Tenn. Code Ann. §
40-35-[5]01, his release eligibility date was conditioned on his
good behavior and that the Commissioner could defer his release
eligibility date for a violation of department rules. The petitioner's
release eligibility date was extended because he violated
department rules.
Tenn. Code Ann. § 40-35-[5]01(h) provides that an inmate's
release eligibility date may be increased in any amount not to
exceed the full sentence originally imposed by the court. The
petitioner's original sentence was a life sentence. His original
release eligibility date was based on the service of 35% of his life
sentence. The effect of extending his release eligibility date by
60% is that the petitioner is not eligible for release until after
service of 95% of his sentence, which does not exceed the full
sentence originally imposed. The petitioner's release eligibility
date was extended pursuant to a law which was in effect at the time
of the petitioners' crime and conviction.
II.
This issue has been before this court on more than one occasion and we
have consistently held that Policy 502.02 is not an unconstitutional ex post facto
law. Ogburn v. Tennessee Dept. of Correction, 983 S.W.2d 677, 679 (Tenn.
App. 1998); Rowland v. Bradley, 899 S.W.2d 614 (Tenn. App. 1994);
Blankenship v. Campbell, No. 01A-01-9603-CH-00099, 1996 WL 346682 at *2
(Tenn. App. 1996). "An ex post facto law imposes punishment for an act which
was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed." Ogburn, 983 S.W.2d at 679 (quoting
Blankenship, 1996 WL 346682 at *2 (quoting Weaver v. Graham, 450 U.S. 24,
101 S.Ct. 960, 67 L.Ed.2d 17 (1991))). Policy 502.02 was in effect at the time
that Mr. Ward committed each institutional offense and thus the consequences
that could result from his actions were fixed and have not been increased by
subsequent legislation. See Rienholtz v. Bradley, 945 S.W.2d 727, 730 (Tenn.
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App. 1996). Mr. Ward's original sentence is unchanged; he is simply required
to serve a greater percentage of that sentence due to his failure to demonstrate
good behavior while in prison.
Although Mr. Ward alleged that his due process rights have been violated,
he does not allege any facts to support this conclusion. Mr. Ward does not
assert that he was deprived of notice, a hearing, the right to be present, nor the
right to produce evidence on his own behalf. Therefore, we find that he has not
stated a claim based on a lack of due process.
III.
We agree with the trial court in both its reasoning and its conclusion. Mr.
Ward has not shown that the law inflicted a greater punishment on him than was
permissible at the time of his offense. In addition, we find that Mr. Ward has
failed to present the facts which would constitute a claim for a due process
violation. The trial court is therefore affirmed.
_______________________________________
WILLIAM B. CAIN, JUDGE
CONCUR:
___________________________________
BEN H. CANTRELL, P.J., M.S.
___________________________________
PATRICIA J. COTTRELL, J.
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