El-Amin v. Campbell

BILLY SALEEM EL-AMIN, )

)

Petitioner/Appellant, )

) Appeal No.

) 01-A-01-9707-CH-00361

VS. )

) Davidson Chancery

) No. 96-2100-II

DONAL CAMPBELL, COMMISSIONER )

TENNESSEE DEPARTMENT OF

CORRECTION, et al.,

)

)

)

FILED

Respondents/Appellees. )

January 28, 1998

Cecil W. Crowson

COURT OF APPEALS OF TENNESSEE Appellate Court Clerk

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE CAROL L. MCCOY, CHANCELLOR

BILLY SALEEM El-AMIN, #58400

Nashville Community Service Center

7466 Centennial Boulevard

Nashville, Tennesseee 37209-1052

Pro Se/Petitioner/Appellant

JOHN KNOX WALKUP

Attorney General & Reporter

JOHN R. MILES

Assistant Attorney General

Cordell Hull Building, Second Floor

425 5th Avenue North

Nashville, Tennessee 37243-0488

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.

OPINION

A prison inmate convicted of two felonies alleged that the Department

of Correction illegally increased the total length of his sentence by treating a

concurrent sentence for the second offense as consecutive to the first one. The trial

court granted the Department’s Motion for Summary Judgment, holding that the only

proper legal interpretation of the record was that the second sentence was to be

served consecutively to the first. We affirm.

I.

The Petitioner is Billy Saleem El-Amin, formerly known as Billy Noble

Forrest. He appears under both names in the record, but for the sake of clarity, we

will refer to him as Mr. El-Amin throughout this opinion. Mr. El-Amin was convicted

of armed robbery in 1964, and received a sentence of 45 years. On December 15,

1971, Governor Winfield Dunn conditionally commuted his sentence to twenty years,

and he was released on parole on December 20, 1972. On August 13, 1973, Mr. El-

Amin was arrested for armed robbery, carrying a weapon and possession of

marijuana. He was convicted of robbery, and received an indeterminate sentence of

five to seven years.

Mr. El-Amin appealed his conviction to the Court of Criminal Appeals.

That court affirmed the conviction, and issued a judgment so stating. Mr. El-Amin

insists that the wording of the 1975 Judgment Order indicated that his five to seven

year sentence was to be served concurrently with his forty-five year sentence. He

relies particularly upon language in the order that states that his sentence will

commence on the day of his reception at the penitentiary. Examination of that Order

reveals that it is a printed form, with additional information typed on it, which we will

indicate by underlining in the paragraph below:

“It is, therefore, ordered and adjudged by this Court

that the plaintiff_ in error, for the offense of robbery, be

delivered to the Warden of the Penitentiary or his agent and

be by him committed to the Penitentiary of the State of

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Tennessee and there confined at hard labor for a term of not

more than seven years, and not less than five years,

commencing on the day of his reception at said Penitentiary

on this charge.”

Directly below this paragraph is another, concerning the plaintiff’s right

to receive credit for time spent in jail while awaiting this appeal. Below that paragraph

the following sentence is typed in:

“Said sentence shall run at the expiration of present sentence

now being served by the plaintiff in error.”

We believe that the typed language from both paragraphs quoted above

makes it quite clear that the court meant for Mr. El-Amin’s second sentence to be

consecutive to his first. Further, such a judgment would be consistent with the

provisions of Tenn. Code Ann. § 40-3620 (now Tenn. Code Ann. § 40-28-123(a),

which was in effect at that time:

Any prisoner who is convicted in this state of a felony,

committed while on parole from a state prison, jail or

workhouse, shall serve the remainder of the sentence under

which the prisoner was paroled, or such part of the sentence,

as the board may determine before the prisoner commences

serving the sentence received for the felony committed while

on parole.

In the case of State v. Venable, 606 S.W.2d 298 (Tenn. Crim. App.

1980), the appeals court faced a situation where an appellant challenged the use of

language in a judgment identical with the typewritten language in the instant case

beginning with “said sentence shall run at the expiration of said present sentence . .

. .” The court deleted the challenged language, holding that it was possibly

misleading, and was in any case unnecessary, because as a matter of law, “[a]

sentence for a felony committed while on parole from a sentence for a felony, whether

or not the sentencing court explicitly so orders or not, shall be consecutive to the

sentence paroled upon if and when that parole is revoked.”

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II.

For many years, the department officials in charge of calculating

prisoner sentences apparently overlooked the language in the judgment and the

requirement of consecutive sentencing, for a 1992 TOMIS Offender Sentence Letter

states a total maximum sentence of forty-five years for Mr. El-Amin. The present

proceedings began after he received a 1996 TOMIS Offender Sentence Letter, which

stated that his maximum sentence is fifty-two years.

Mr. El-Amin’s legal arguments on appeal are difficult to understand, but

we cannot hold that against him, because he is a pro-se appellant who does not claim

to be knowledgeable about the law. In any case he did a serviceable job of explaining

the situation in his original hand-written complaint, and it is not difficult to understand

his reason for unhappiness: for many years he was led to believe that his sentence

would expire after forty-five years, and then in 1996 he learned that the Department

of Correction would henceforth consider his maximum sentence to be fifty-two years.

Essentially Mr. El-Amin is arguing that the Department of Correction

violated his due process rights by extending his sentence beyond that which was

imposed by the courts. In the alternative he would argue that once having calculating

his sentence as forty-five years, the Department should not be permitted to increase

it.

As we indicated above, we believe the only reasonable interpretation of

the applicable law, and of the judgment of the Court of Criminal Appeals, is that the

appellant was sentenced to consecutive terms of confinement. The appellant’s

argument then comes down to whether the Board of Correction is bound by its own

long-standing error in calculating or in interpreting that sentence.

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We believe that the Department may correct an error which makes a

prisoner’s sentence shorter than the sentence imposed by the court, just as it would

be obligated to correct an error which extended a prisoner’s sentence beyond the

court’s judgment. The trial court was therefore correct in granting summary judgment

to the Department. Summary judgment is appropriate when there is no genuine issue

of material fact, and when the moving party is entitled to judgment as a matter of law.

Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). In the present case, the only issue was

the proper interpretation of the 1975 Judgment Order, a question of law which the trial

court correctly resolved in favor of the appellee.

III.

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.

_________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

WILLIAM C. KOCH, JR., JUDGE

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

BILLY SALEEM EL-AMIN, )

)

Petitioner/Appellant, )

) Appeal No.

) 01-A-01-9707-CH-00361

VS. )

) Davidson Chancery

) No. 96-2100-II

DONAL CAMPBELL, COMMISSIONER )

TENNESSEE DEPARTMENT OF ) Affirmed and

CORRECTION, et al., ) Remanded

)

Respondents/Appellees. )

JUDGMENT

This cause came on to be heard upon the record on appeal from the

Chancery Court of Davidson County, and briefs of the parties; upon consideration

whereof, this Court is of the opinion that in the decree of the Chancellor there is no

reversible error.

In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree of the Chancellor is affirmed. The

cause is remanded to the Chancery Court of Davidson County for the enforcement

of the decree and for the collection of the costs accrued below.

Costs of this appeal are taxed against Billy Saleem El-Amin, for which

execution may issue if necessary.

ENTER _______________________.

_________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_________________________________

BEN H. CANTRELL, JUDGE

_________________________________

WILLIAM C. KOCH, JR., JUDGE

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